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Baroness Hamwee: I believe that we are all agreed on the best way of going about these matters. My concern was the rather more technical one of being assured that the local authority had the power to postpone taking a decision; in other words, not to be upholding or rejecting the complaint, but postponing it to allow mediation. Mine is quite a narrow point.
Lord Bassam of Brighton: The noble Baroness is right in that it is a narrower point. Under Clause 4(2)(a) local authorities already have powers not to proceed with complaints if they consider that the complainant has failed to take all reasonable steps to resolve the dispute amicably. So we believe that the provision is already there. That will enable the authority to refer the parties to mediation, which we believe works very well. Statistics tell me that there is a success rate of 85 per cent in cases where mediation is invoked. Our expectation is that that would happen first. In any event, Clause 4(2)(a) provides for that. We believe that that point is satisfied and has a bearing on the issue raised by the noble Baroness, Lady Gardner of Parkes.
Baroness Gardner of Parkes: I have listened with quite a degree of interest. I understand the technical basis of the point made by the noble Baroness, Lady Hamwee. I am very much in favour of mediation. I have no problem with the principle of mediation or of a council deferring a decision for the purpose of mediation.
I have tabled my amendment for a narrow reason: that in situations where mediation is absolutely impossible there should be at least a minimum requirement on the party concerned to notify the person complained against. I do not believe that that is at all unreasonable. The council would find itself in difficulty if it approached the neighbour and said that it had received a complaint from a neighbour, and the neighbour replied to the effect that no one had told him that there had been a complaint about the hedge. Yet the reason for not telling might have been that the complainant was too frightened to approach the neighbour who had been unfriendly about other issues.
I had a very unfortunate case in the West Country. A hedge was causing great damage. The woman concerned believed that it caused her husband to die from a heart attack, but I do not know whether or not that is true. He died after a great period of worry about the hedge. When she read the Delaware Mansions case and that one had to notify the neighbour if one is unhappy in order to take legal action under the present law, she notified the neighbour. She received a letter from his solicitor to say that if she attempted to contact his client in any way whatever he would take further legal action against her for harassment. All this occurred to a woman aged over 80 years.
I told her that she should take up the matter with the Law Society because I considered it scandalous for any solicitor to send a letter of that intimidatory nature. She took it up with the society but got nowhere. She was told that the solicitor was entitled to defend his client. However, the position became worse because the offending person said that he would sue the complainant for damaging the resale value of his property. It was up for sale and he had to disclose that he had a letter of complaint from a neighbour which therefore reduced the resale value.
Cases exist which are quite worrying and frightening to people. So there should be the ultimate fallback for a complainant of not having to prove that he has taken all reasonable steps, because what would those be when he has approached a neighbour and been told that he is harassing the neighbour? That puts the person attempting to mediate in an impossible position. If there is the fallback position that at the very least the complainant must have notified the neighbour of the complaint, then, as in the judgment of the court in the case to which I have referred, the neighbour could not plead that he was unaware of the problem. That is why I wanted to include that point.
The Minister should look at this and consider whether or not it would be a desirable addition to the Bill. I am sure that there are many more cases than the ones about which I have heard. In the mean time, I should like to reconsider and further discuss the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 13 and 14 not moved.]
Baroness Gardner of Parkes moved Amendment No. 16:
- Page 4, line 41, at end insert—
The noble Baroness said: The main reason for bringing forward this amendment was the statement made by the noble Lord, Lord Walker of Doncaster, in the Second Reading debate, in the gap. The noble Lord mentioned the fact that it can be extremely difficult for people living in conservation areas to maintain their own hedges. People living in a conservation area have to notify the council of their intention to cut a hedge. Thereafter, they have to allow a certain amount of time to elapse before they can proceed to cut their own hedge. The noble Lord is keen to have some provision that will entitle people living in conservation areas to maintain and trim their own hedges. It is quite customary in this country for people to trim, tidy, and maintain their hedges. Therefore, it is not a good idea to impose difficulties upon them in so doing.
Further, if the council makes an enforcement order that a hedge should be cut to, say, three or four metres—or whatever measurement is determined—the
Lord Bassam of Brighton: We may well be able to offer some reassurance to the noble Baroness on the points that she has raised. Section 198(6)(b) of the Town and Country Planning Act 1990 states that a tree preservation order does not apply,
A similar exemption applies where a remedial notice is issued in respect of trees in a conservation area. The relevant provision can be found in Regulation 10 of the Town and Country Planning (Trees) Regulations 1999. This does not mean that a local amenity is unimportant; indeed, far from it. Clause 4(4) of the Bill shows quite clearly that the local authority is required to "take into consideration" the extent to which a hedge contributes towards the amenity of a neighbourhood. The existence of a tree preservation order, or of a conservation area designation, will, therefore, be a material fact to a decision as to whether or not to issue a remediation notice.
Of itself, that provision does not address the separate point raised on Second Reading by the noble Lord, Lord Walker, about trees in conservation areas. I believe that the noble Lord's concern was that the requirement to notify the local planning authority before carrying out works to certain trees in conservation areas could serve to discourage owners from managing their own hedges. The noble Baroness pointed out that there was a degree of conflict between the aims of her Bill and the universal controls over trees in conservation areas in planning legislation.
However, we believe that this problem is capable of resolution. Under the tree regulations that I mentioned earlier, it is open to us to specify exemptions in the requirement to notify the planning authority of the intention to carry out works to trees in a conservation area. Therefore, it would be feasible to exempt topping or lopping of evergreen hedges as part of normal management. In our view, the issue can be best addressed in that way. The department is currently considering updating the tree regulations and implementing long-promised improvements to the tree protection regime, so we have the opportunity to introduce such an exemption. We shall consider suitable provisions in the revised regulations.
In the meantime, it is my hope—and, I am sure, that of your Lordships—that local authorities will look favourably upon applications to prune hedges. Indeed, they would be imprudent if they did not do so. In our view, tree preservation legislation should not get in the way of effective good management practice. I trust that my remarks will be of some assistance to the noble Baroness.
Baroness Gardner of Parkes: I thank the Minister for his response. It would be most helpful if an exemption for people who wish to control their own hedges could be introduced. I am sure that all these applications for permission to prune one's own hedges in conservation areas represent a burden to the planning departments of local authorities. The Minister's reply is most encouraging. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Variation or withdrawal of remedial notices]:
"(9) For the avoidance of doubt, a remedial order under this Act shall override any tree preservation order or any preservation order imposed under the Town and Country Planning Act 1990 (c. 8)."
"to the cutting down, uprooting, topping or lopping of trees in compliance with any obligations imposed by or under an Act of Parliament".
That rather broad statement means that remedial notices served, or issued, under this Bill would automatically override the requirements of a tree preservation order. Consequently, there is no need to clarify that point on the face of the Bill.
4.15 p.m.
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