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Session 2002 - 03
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High Hedges (No. 2) Bill


High Hedges (No. 2) Bill

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 8     Appeals procedure

     (1)    The appeal authority may by regulations make provision with respect to—

           (a)           the procedure which is to be followed in connection with appeals to

that authority under section 7, and

           (b)           other matters consequential on or connected with such appeals.

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     (2)    Regulations under this section may, in particular, make provision—

           (a)           specifying the grounds on which appeals may be made;

           (b)           prescribing the manner in which appeals are to be made;

           (c)           requiring persons making appeals to send copies of such documents as

may be prescribed to such persons as may be prescribed;

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           (d)           requiring local authorities against whose decisions appeals are made to

send to the appeal authority such documents as may be prescribed;

           (e)           specifying, where a local authority are required by virtue of paragraph

(d) to send the appeal authority a statement indicating the submissions

which they propose to put forward on the appeal, the matters to be

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included in such a statement;

           (f)           prescribing the period within which a requirement imposed by the

regulations is to be complied with;

           (g)           enabling such a period to be extended by the appeal authority;

           (h)           for a decision on an appeal to be binding on persons falling within

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section 7(2) in addition to the person by whom the appeal was made;

           (i)           for incidental or ancillary matters, including the awarding of costs.

     (3)    Where an appeal is made to the appeal authority under section 7 the appeal

authority may appoint a person to hear and determine the appeal on its behalf.

     (4)    The appeal authority may require such a person to exercise on its behalf any

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functions which—

           (a)           are conferred on the appeal authority in connection with such an

appeal by section 7 or 9 or by regulations under this section; and

           (b)           are specified in that person’s appointment;

                   and references to the appeal authority in section 7 or 9 or in any regulations

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under this section shall be construed accordingly.

     (5)    The appeal authority may pay a person appointed under subsection (3) such

remuneration as it may determine.

     (6)    Regulations under this section may provide for any provision of Schedule 20

to the Environment Act 1995 (c. 25) (delegation of appellate functions) to apply

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in relation to a person appointed under subsection (3) with such modifications

(if any) as may be prescribed.

     (7)    In this section, “prescribed” means prescribed by regulations made by the

appeal authority.

 9     Determination or withdrawal of appeals

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     (1)    On an appeal under section 7 the appeal authority may allow or dismiss the

appeal, either in whole or in part.

     (2)    Where the appeal authority decides to allow such an appeal to any extent, it

may do such of the following as it considers appropriate—

           (a)           quash a remedial notice or decision to which the appeal relates;

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           (b)           vary the requirements of such a notice; or

           (c)           in a case where no remedial notice has been issued, issue on behalf of

the relevant authority a remedial notice that could have been issued by

the relevant authority on the complaint in question.

     (3)    On an appeal under section 7 relating to a remedial notice, the appeal authority

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may also correct any defect, error or misdescription in the notice if it is satisfied

that the correction will not cause injustice to any person falling within section

7(2).

     (4)    Once the appeal authority has made its decision on an appeal under section 7,

it must, as soon as is reasonably practicable—

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           (a)           give a notification of the decision, and

           (b)           if the decision is to issue a remedial notice or to vary or correct the

requirements of such a notice, send copies of the notice as issued,

varied or corrected,

                   to every person falling within section 7(2) and to the relevant authority.

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     (5)    Where, in consequence of the appeal authority’s decision on an appeal, a

remedial notice is upheld or varied or corrected, the operative date of the

notice shall be—

           (a)           the date of the appeal authority’s decision; or

           (b)           such later date as may be specified in its decision.

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     (6)    Where the person making an appeal under section 7 against a remedial notice

withdraws his appeal, the operative date of the notice shall be the date on

which the appeal is withdrawn.

     (7)    In any case falling within subsection (5) or (6), the compliance period for the

notice shall accordingly run from the date which is its operative date by virtue

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of that subsection (and any period which may have started to run from a date

preceding that on which the appeal was made shall accordingly be

disregarded).

Powers of entry

 10    Powers of entry for the purposes of complaints and appeals

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     (1)    Where, under this Act, a complaint has been made or a remedial notice has

been issued, a person authorised by the relevant authority may enter the

neighbouring land in order to obtain information required by the relevant

authority for the purpose of determining—

           (a)           whether this Act applies to the complaint;

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           (b)           whether to issue or withdraw a remedial notice;

           (c)           whether to waive or relax a requirement of a remedial notice;

           (d)           whether a requirement of a remedial notice has been complied with.

     (2)    Where an appeal has been made under section 7, a person authorised—

           (a)           by the appeal authority, or

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           (b)           by a person appointed to determine appeals on its behalf,

            may enter the neighbouring land in order to obtain information required by the

appeal authority, or by the person so appointed, for the purpose of

determining an appeal under this Act.

 

 

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     (3)    A person shall not enter land in the exercise of a power conferred by this

section unless at least 24 hours’ notice of the intended entry has been given to

every occupier of the land.

     (4)    A person authorised under this section to enter land—

           (a)           shall, if so required, produce evidence of his authority before entering;

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and

           (b)           shall produce such evidence if required to do so at any time while he

remains on the land.

     (5)    A person who enters land in the exercise of a power conferred by this section

may—

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           (a)           take with him such other persons as may be necessary;

           (b)           take with him equipment and materials needed in order to obtain the

information required;

           (c)           take samples of any trees or shrubs that appear to him to form part of a

high hedge.

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     (6)    If, in the exercise of a power conferred by this section, a person enters land

which is unoccupied or from which all of the persons occupying the land are

temporarily absent, he must on his departure leave it as effectively secured

against unauthorised entry as he found it.

     (7)    A person who intentionally obstructs a person acting in the exercise of the

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powers under this section is guilty of an offence and shall be liable, on

summary conviction, to a fine not exceeding level 3 on the standard scale.

Enforcement powers etc.

 11    Offences

     (1)    Where—

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           (a)           a remedial notice requires the taking of any action; and

           (b)           that action is not taken in accordance with that notice within the

compliance period or (as the case may be) by the subsequent time by

which it is required to be taken,

            every person who, at a relevant time, is an owner or occupier of the

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neighbouring land is guilty of an offence and shall be liable, on summary

conviction, to a fine not exceeding level 3 on the standard scale.

     (2)    In subsection (1) “relevant time”—

           (a)           in relation to action required to be taken before the end of the

compliance period, means a time after the end of that period and before

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the action is taken; and

           (b)           in relation to any preventative action which is required to be taken after

the end of that period, means a time after that at which the action is

required to be taken but before it is taken.

     (3)    In proceedings against a person for an offence under subsection (1) it shall be

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a defence for him to show that he did everything he could be expected to do to

secure compliance with the notice.

     (4)    In any such proceedings against a person, it shall also be a defence for him to

show, in a case in which he—

 

 

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           (a)           is not a person to whom a copy of the remedial notice was sent in

accordance with a provision of this Act, and

           (b)           is not assumed under subsection (5) to have had knowledge of the

notice at the time of the alleged offence,

            that he was not aware of the existence of the notice at that time.

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     (5)    A person shall be assumed to have had knowledge of a remedial notice at any

time if at that time—

           (a)           he was an owner of the neighbouring land; and

           (b)           the notice was at that time registered as a local land charge.

     (6)    Section 198 of the Law of Property Act 1925 (c. 20) (constructive notice) shall be

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disregarded for the purposes of this section.

     (7)    Where a person is convicted of an offence under subsection (1) and it appears

to the court—

           (a)           that a failure to comply with the remedial notice is continuing, and

           (b)           that it is within that person’s power to secure compliance with the

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notice,

                   the court may, in addition to or instead of imposing a punishment, order him

to take the steps specified in the order for securing compliance with the notice.

     (8)    An order under subsection (7) must require those steps to be taken within such

reasonable period as may be fixed by the order.

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     (9)    Where a person fails without reasonable excuse to comply with an order under

subsection (7) he is guilty of an offence and shall be liable, on summary

conviction, to a fine not exceeding level 3 on the standard scale.

     (10)   Where a person continues after conviction of an offence under subsection (9)

(or of an offence under this subsection) to fail, without reasonable excuse, to

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take steps which he has been ordered to take under subsection (7), he is guilty

of a further offence and shall be liable, on summary conviction, to a fine not

exceeding one-twentieth of that level for each day on which the failure has so

continued.

 12    Power to require occupier to permit action to be taken by owner

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Section 289 of the Public Health Act 1936 (c. 49) (power of court to require

occupier to permit work to be done by owner) shall apply with any necessary

modifications for the purpose of giving an owner of land to which a remedial

notice relates the right, as against all other persons interested in the land, to

comply with the notice.

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 13    Action by relevant authority

     (1)    This section applies where—

           (a)           a remedial notice requires the taking of any action; and

           (b)           that action is not taken in accordance with that notice within the

compliance period or (as the case may be) after the end of that period

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when it is required to be taken by the notice.

     (2)    Where this section applies—

           (a)           a person authorised by the relevant authority may enter the

neighbouring land and take the required action; and

 

 

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           (b)           the relevant authority may recover any expenses reasonably incurred

by that person in doing so from any person who is an owner or occupier

of the land.

     (3)    Expenses recoverable under this section shall be a local land charge and

binding on successive owners of the land and on successive occupiers of it.

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     (4)    Where expenses are recoverable under this section from two or more persons,

those persons shall be jointly and severally liable for the expenses.

     (5)    A person shall not enter land in the exercise of a power conferred by this

section unless at least 7 days’ notice of the intended entry has been given to

every occupier of the land.

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     (6)    A person authorised under this section to enter land—

           (a)           shall, if so required, produce evidence of his authority before entering;

and

           (b)           shall produce such evidence if required to do so at any time while he

remains on the land.

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     (7)    A person who enters land in the exercise of a power conferred by this section

may—

           (a)           use a vehicle to enter the land;

           (b)           take with him such other persons as may be necessary;

           (c)           take with him equipment and materials needed for the purpose of

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taking the required action.

     (8)    If, in the exercise of a power conferred by this section, a person enters land

which is unoccupied or from which all of the persons occupying the land are

temporarily absent, he must on his departure leave it as effectively secured

against unauthorised entry as he found it.

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     (9)    A person who wilfully obstructs a person acting in the exercise of powers

under this section to enter land and take action on that land is guilty of an

offence and shall be liable, on summary conviction, to a fine not exceeding level

3 on the standard scale.

 14    Offences committed by bodies corporate

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     (1)    Where an offence under this Act committed by a body corporate is proved to

have been committed with the consent or connivance of, or to be attributable

to any neglect on the part of—

           (a)           a director, manager, secretary or other similar officer of the body

corporate, or

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           (b)           any person who was purporting to act in any such capacity,

                   he, as well as the body corporate, shall be guilty of that offence and be liable to

be proceeded against and punished accordingly.

     (2)    Where the affairs of a body corporate are managed by its members, subsection

(1) applies in relation to the acts and defaults of a member in connection with

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his functions of management as if he were a director of the body corporate.

 

 

 
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Revised 13 March 2003