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Session 2002 - 03|
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|High Hedges (No. 2) Bill|
These notes refer to the High Hedges (No. 2) Bill as introduced in the House of Commons on 11 December 2002 [Bill 28]
HIGH HEDGES (NO. 2) BILL
1. These explanatory notes relate to the High Hedges (No. 2) Bill as introduced in the House of Commons on 11 December 2002. They have been prepared by the Office of the Deputy Prime Minister, with the consent of Stephen Pound MP, the Member in charge of the Bill, in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. The Bill extends only to England and Wales.
SUMMARY AND BACKGROUND
4. The Bill creates a new procedure for dealing with complaints about high hedges, to be administered by local authorities in England and Wales. It is estimated that thousands of people are adversely affected by overgrown hedges on neighbouring property. Leyland Cypress hedges are often singled out for blame but they are not the only culprits.
5. Problems tend to occur where a hedge is not suitable for its location and not properly maintained. This can happen because people do not realise the full growth potential or maintenance requirements of the plants used. In addition, a once well-maintained hedge can become neglected and overgrown when ownership changes. The commonest concern is about the perceived reduction in light caused by high hedges.
6. Where neighbours do not co-operate, there is little that the person affected by the hedge can do to obtain relief. Common law rights entitle people to cut
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overhanging branches back only to the boundary line of the property. They do not, however, allow them to reduce the height of a neighbouring hedge. Existing laws, such as those relating to statutory nuisance, are untested as far as high hedges are concerned and are unlikely to be appropriate in the vast majority of cases. In addition, the time and cost involved in action through the civil courts - and the uncertainty of the outcome - mean that people are reluctant to pursue this route.
7. Against this background, the Government carried out (at the end of 1999) a public consultation on possible solutions to these problems ('High hedges: possible solutions'). This included non-statutory as well as legislative options. Over 3,000 people responded. The results showed that 94% of respondents believed that new laws were needed to control these hedges. This included 77% of local authorities. A new system to allow local authorities to determine complaints was the clear favourite. 72% of respondents chose this option, including 67% of local authorities. The consultation paper and a summary of responses are available at www.urban.odpm.gov.uk.
8. In the light of this support for new laws, the Government announced (in August 2000) that it would bring forward legislation in England to allow local authorities to determine complaints about high hedges, as soon as Parliamentary time allowed. The National Assembly for Wales indicated (in October 2000) that they wished these new laws to extend to Wales.
OVERVIEW OF THE BILL
9. The Bill makes provision for local authorities (district or unitary councils, London Boroughs, the City of London in England, and Welsh equivalents) to determine complaints by the owners/occupiers of domestic property adversely affected by evergreen hedges that are over 2 metres high. The local authority would be able to charge a fee for this service, to be paid by the complainant. They would also be able to reject the complaint if they considered that insufficient effort had been made to resolve the matter amicably, or that the complaint was frivolous or vexatious. The local authority would, if they considered the circumstances justified it, issue a notice requiring the owner or occupier of the neighbouring land to undertake action to remedy the problem and to prevent it recurring. This would be known as a 'remedial notice'.
10. The Bill includes rights of appeal against the local authority's decision and enables the remedial notice to be enforced through criminal prosecutions and/or by the local authority entering the land and carrying out the necessary work if the owner or occupier fails to do so.
Territorial application: Wales
11. The Bill extends to Wales. It confers powers on the National Assembly for Wales in clauses 4(7), 7 to 10, 18, 20 and 23.
COMMENTARY ON CLAUSES
12. Clause 1 specifies the complaints to which the Bill applies and defines the "complainant". Complaints must be made by the owner or occupier of domestic property, on the grounds that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person (the "neighbouring land"). Even if the property is currently unoccupied, the owner may still bring a complaint under the Bill (clause 1(2)). Complaints about the effects of roots are specifically excluded (clause 1(4)).
13. Clause 2 defines a "high hedge" as so much of a barrier to light or access as is formed wholly or predominantly by a line of two or more evergreen or semi-evergreen trees or shrubs and rises to a height of more than two metres above ground level.
14. Clause 3 defines "domestic property" as a dwelling or its associated garden or yard.
15. Clause 4 sets out the procedure for dealing with these complaints. They must be made to the local authority whose area contains the land on which the hedge is situated. Complaints must also be accompanied by any fee set by the authority. The level of such a fee must not exceed the amount specified in regulations made under the Bill (clause 4(7)).
16. The local authority may reject the complaint if they consider that the complainant has not taken all reasonable steps to resolve the matter without involving the authority, or if they consider that the complaint is frivolous or vexatious (clause 4(2)). If the local authority decide, on this basis, not to proceed with the complaint, they must inform the complainant as soon as is reasonably practicable and must explain the reasons for their decision (clause 4(5) and (6)).
17. Where the local authority proceed with the complaint, they must decide in the first place whether the height of the high hedge is adversely affecting the complainant's reasonable enjoyment of his property. If so, the authority must then consider what, if any, action to require to be taken in relation to the hedge in order to remedy the adverse effect and to prevent it recurring (clause 4(3)).
18. The authority must, as soon as is reasonably practicable, inform the parties of their decision and the reasons for it. If the authority decide that action should be taken, they must also issue a remedial notice (under clause 5).
19. Clause 5 specifies the contents of a remedial notice. The notice must specify the hedge it relates to; what action is required to be taken in relation to the hedge in order to remedy the adverse effect and by when; what further action, if any, is required to prevent recurrence of the adverse effect; what date the notice takes effect; and the consequences of failure to comply with the requirements of the notice.
20. The action specified in a remedial notice may not involve reducing the height of the hedge below 2 metres, or its removal.
21. While the remedial notice is in force, there is an obligation on the local authority to register it as a local land charge. In addition, the notice is binding not only on whoever is the owner or occupier of the neighbouring land at the time it is issued but also on their successors.
22. Clause 6 provides that a local authority can withdraw a remedial notice or waive or relax its requirements. If they do so, they must notify the complainant and the owner/occupier of the neighbouring land.
23. Clause 7 sets out rights of appeal against the local authority's decisions under clauses 4 and 6, and against any remedial notice issued by them. The appeal authority is the Secretary of State in respect of England, and the National Assembly for Wales in respect of Wales.
24. Clause 8 allows the appeals authority to set down in regulations the procedure for dealing with such appeals. The appeals authority may appoint another person to hear and determine all appeals under the Bill, and may also require such a person to carry out all or any of its appeals functions (clause 8(4)).
25. Clause 9 describes the appeal authority's powers in determining appeals. It may allow or dismiss the appeal, either in total or in part. If the appeals authority decides to allow the appeal, it may quash or vary the remedial notice to which the appeal relates. It may also issue such a notice in those cases where the authority decided not to do so in response to the original complaint. Whatever its decision on the appeal, the appeals authority may correct any defect, error or misdescription in the original remedial notice if this will not cause injustice.
26. Clause 10 provides that the local authority and the appeal authority have power to enter the neighbouring land in order to carry out their functions under the Bill. They must give 24 hours' notice of their intended entry and, if the land is unoccupied, leave it as effectively secured as they found it. Intentionally obstructing a person exercising these powers is an offence punishable on summary conviction by a fine not exceeding level 3 on the standard scale.
27. Clause 11 makes provision for criminal offences. Failure to comply with a remedial notice is to be a criminal offence punishable on summary conviction by a fine not exceeding level 3 on the standard scale. There is also provision for daily fines if the requisite work remains outstanding following a court order.
28. Clause 12 applies section 289 of the Public Health Act 1936 with modifications to allow the owner of the land where the hedge is situated, rather than the occupier or another person with an interest in the land, to comply with a remedial notice.
29. Clause 13 provides that the local authority have power to enter the neighbouring land and carry out the works specified in the remedial notice, if the owner or occupier of the land fails to comply with its requirements. It will be open to the authority to exercise these powers whether or not criminal proceedings are brought under clause 11. The costs of this work can then be recovered from the owner or occupier of the land. Any unpaid expenses would (until recovered) be registered as a local land charge. When exercising these powers, the local authority must give 7 days' notice of their intended entry on to the land.
30. Clause 14 provides that, where offences are committed by bodies corporate, proceedings may, in certain circumstances, be taken against individual officers as well as against the body corporate.
31. Clause 15 sets out the Parliamentary procedures to be followed when making regulations under the Bill. In particular, regulations made under clauses 18 and 20 must be subject to the affirmative resolution procedure.
32. Clause 16 deals with how documents referred to in the Bill should be delivered to the recipients.
33. Clause 17 deals with delivery of documents in electronic form. In particular, it prevents the use of electronic communications for sending copies of a remedial notice (under clause 4). Clause 18 gives the Secretary of State and the National Assembly for Wales power to amend these requirements through regulations.
34. Clause 20 gives the Secretary of State and the National Assembly for Wales power to extend the scope of complaints covered by the Bill (under clause 1) and to alter the definition of 'high hedge' (in clause 2) through regulations. This is necessary in case experience shows that the Bill does not cover particular problems with high hedges.
35. Clause 21 provides for public expenditure on the administration of the Bill by central or local government to be paid out of money provided by Parliament.
36. Clause 22 applies the provisions of the Bill to the Crown, although the Crown itself (as opposed to its employees) will not be liable to prosecution for a criminal offence. A local authority will be able to investigate and determine complaints about high hedges on Crown land, for example a hedge on land owned by a Government Department may be affecting neighbouring domestic property.
EFFECT OF THE BILL ON PUBLIC EXPENDITURE
37. The main costs will fall on the local authorities who administer the complaints system. It is estimated that it will cost them some £2.8 - £3.2 million to deal with a backlog of some 10,000 existing problem cases, spread over a period of 3 years. Thereafter the caseload should drop dramatically. These costs will be met, in part at least, through fees paid by complainants.
38. The Bill is expected to have little effect on local authority manpower. Local authority staff are already engaged in responding to complaints on this issue, even though they do not have statutory powers to help resolve them. Although it might be necessary to supplement this effort, it is likely to require on average only a proportion of one full post in each authority.
39. The Secretary of State and National Assembly for Wales are likely to delegate their appeals functions to the Planning Inspectorate, who will incur costs in handling these matters. Assuming 20% of cases go to appeal, this could amount to around £2.2 million over a 3-year period. The Inspectorate will not, however, begin incurring these costs until about 6 months after the legislation comes into force. Demand is expected to fall significantly at the end of 3 years when the backlog of existing hedge problem cases has been cleared.
40. It is difficult to predict the precise effect on Planning Inspectorate manpower but any increase in numbers is likely to be minimal.
COSTS TO BUSINESS AND REGULATORY IMPACT
41. The Regulatory Impact Assessment prepared for the High Hedges (No. 2) Bill concludes that businesses, charities and voluntary organisations are unlikely to be affected by the Bill. The main impacts will be felt by public sector bodies. These are summarised in the preceding section.
42. The Office of the Deputy Prime Minister will place the full Regulatory Impact Assessment in the libraries of both Houses of Parliament. It is also available at www.urban.odpm.gov.uk.
43. Clause 23 provides for the Act to be brought into force by commencement order. It is envisaged that regulations dealing with procedural details (under clauses 4(7) and 8(1)) will come into force at the same time.
|© Parliamentary copyright 2003||Prepared: 13 March 2003|