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House of Lords

Friday, 28th February 2003.

The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers—Read by the Lord Bishop of Blackburn.

High Hedges Bill [HL]

Report received.

Clause 1 [Complaints to which this Act applies]:

Lord Evans of Temple Guiting moved Amendment No. 1:

    Page 1, line 6, leave out from "being" to "a" in line 7 and insert "adversely affected by the height of"

The noble Lord said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2, 3, 4, 10, 11, 12, 13, 14 and 20.

I am sorry that I was abroad on 9th January when the Committee stage of the Bill of the noble Baroness, Lady Gardner of Parkes, took place. Although I was not present to hear the debate, I hope that the various amendments that appear in my name on the Marshalled List show that the Government, through my noble friend Lord Bassam of Brighton, were listening to, and have taken heed of, the concerns of the House.

The first group of amendments deals with the grounds on which someone can complain about a neighbouring high hedge. There was much discussion, both at Second Reading and in Committee, about the merits of extending the grounds of complaint beyond unreasonable obstruction of light. Examples were given of where hedges had caused loss of sunlight, loss of view, loss of amenity and property damage. My noble friend Lord Bassam of Brighton indicated that the Government accepted in principle that some extension of the grounds of complaint would be advisable and that we would consider the extra issues raised.

Our proposal in Amendment No. 1 is to allow people to complain to the local authority if reasonable enjoyment of their property has been adversely affected by the height of a high hedge. A "high hedge" is defined in Clause 2, about which we shall hear more later. The effect of the amendment is that the local authority could be asked to intervene if the excessive height of the hedge had resulted in some loss of amenity.

The wording offers flexibility to deal with a range of problems associated with high hedges. In our view, this would include obstruction of daylight and sunlight, either jointly or as separate issues—a matter raised in Committee by the noble Baroness, Lady Gardner of Parkes—and would also cover loss of view, which the noble Lord, Lord Methuen, suggested was an important consideration.

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In addition, the amendment would allow someone to bring a complaint if their garden was small and was dominated by the neighbouring hedge, making their situation uncomfortable. Such circumstances were mentioned by the noble Baroness, Lady Hamwee.

The issue of damage to plants was also raised in Committee. This, too, would be covered by Amendment No. 1, provided that the damage was attributable to the height of the hedge. For example, a tall hedge might prevent light reaching the plants. In addition, the hedge might be too high for the complainant to trim branches overhanging his property and shielding plants from that vital source of moisture, rain.

This example demonstrates that the difficulties people encounter in trying to exercise their common law rights to deal with the overhang from hedges could also fall to be considered by the local authority under Amendment No. 1, provided that the difficulties were directly tied to the height of the hedge.

Amendment No. 1 brings issues together within the scope of the Bill. Amendment No. 2, on the other hand, specifically excludes complaints about the effect of the roots of a high hedge. In particular, this means that complaints about root-related property damage would not be covered. As my noble friend Lord Bassam of Brighton indicated in Committee, the Government consider that other remedies are available to deal with such matters. In addition, the issues tend to be about who is liable for the damage and the level of compensation rather than about remedial works to the hedge.

The noble Baroness, Lady Gardner of Parkes, queried this, suggesting that there might be a direct relation between what you see of a hedge above ground and the root growth below. This is not, however, necessarily the case. Maintaining a hedge at a particular height does not necessarily mean that root growth will be similarly restricted. Certainly, reducing the height of an overgrown hedge will not cause roots to die back by a comparable amount.

In addition, where trees are implicated in subsidence damage, the problems arise not from the direct effect of the roots on the building but from the indirect effect. On shrinkable soils, particularly some of the clays, extraction of moisture by roots will result in that soil shrinking, thereby reducing the support to foundations.

We are aware that reducing the height of a hedge is often advocated as a means of lowering the risk of property damage through subsidence. The theory is that less foliage means less uptake of water from the soil. However, this theory is not yet proven. It is the subject of research that the Government are sponsoring with the insurance industry and other partners. This shows how complex is the subject of property damage, especially when it is as a result of subsidence, and reinforces the Government's view that it is best dealt with elsewhere rather than through the Bill.

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The remaining amendments in the group are all consequential upon Amendment No. 1. In particular, Amendment No. 10 requires the local authority, when determining complaints, to decide whether the height of the hedge in question is adversely affecting the complainant's reasonable enjoyment of his or her property, and if so, what, if any, action should be taken to remedy the problem or prevent its recurrence. In doing so, the local authority is required to consider all relevant factors and to assess each case on its particular merits.

As promised in Committee, the Government intend to publish guidance to local authorities on the legislation. We envisage that such guidance will need to deal with the full range of issues that local authorities could be asked to take into account. It would probably expand upon the advice in our leaflet, Over the Garden Hedge. This contains information on issues such as safe maintenance, privacy, loss of sunlight, obstruction of daylight and blocking of views.

I would also repeat the "cast-iron assurance" given by my noble friend Lord Bassam of Brighton that there will be prior consultation on the guidance with a range of interested organisations, including, of course, Hedgeline. They will have the opportunity, therefore, to comment on and influence its content.

Moving on to Clause 5, Amendments Nos. 12 and 14 provide that a remedial notice must specify what action should be taken in relation to the hedge with a view to remedying its adverse effect. If the local authority is so minded, it can also require action to be taken to prevent the adverse effect recurring in the future. This could include long-term maintenance of the hedge.

I should also make clear that reduction in the height of the hedge is not the only course of action that can be specified in a remedial notice. There is flexibility to tailor the action to the problem. In some cases, therefore, an appropriate remedy might well include reducing the width of the hedge as well as its height.

Finally in this group, Amendment No. 20 allows us to extend the scope of complaints covered by the legislation, if necessary, through regulations rather than further primary legislation. It provides us with the flexibility to respond quickly to changing circumstances and to new and other problems.

I am sorry to speak at such length, but I hope that I have indicated how this group of amendments will address a number of concerns raised in Committee. I beg to move.

11.15 a.m.

Baroness Hamwee: My Lords, I strongly welcome the amendments. Not only do they meet points made at the previous stage, but they seem to me—I hope my interpretation is right—to indicate that the Government are firmly behind the Bill and intend to see that it becomes law. That would be a very good

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thing indeed. Credit is due to the noble Baroness, Lady Gardner, for introducing the Bill and to the Government for recognising what is needed.

Will the Minister expand on an area that I raised in Committee; namely, how the choice will be made as to whether a complaint should relate to, and in particular whether an offence is committed by, an "owner or occupier"? Those words occur throughout the Bill. I am concerned about the short-term occupier whose tenancy agreement or licence may not state clearly where liability falls in relation to this kind of maintenance, using the word in its widest sense. It seems to me that it is entirely wrong, for instance, that a licensee who does not expect to have to pay the cost, which could be considerable, or, most particularly, incur the possibility of being penalised for committing a criminal offence should be placed in that position. I know that the Minister has considered this point and I am grateful for the notes from his officials, who suggested—and I took the hint—that I might raise it after welcoming the government amendments.

Lord Methuen: My Lords, I thank the Minister for what he has done in support of the points I made about loss of view. We shall come to my other points later.

Baroness Buscombe: My Lords, we on these Benches are grateful to the Government for showing such support for the Bill. I am afraid that I cannot share the optimism of the noble Baroness, Lady Hamwee, who expressed the hope that the Bill will complete its passage in another place. We can but hope.

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