Select Committee on Delegated Powers and Regulatory Reform Twenty-Sixth Report

Annex 2


Letter from the Rt Hon the Baroness Scotland of Asthal QC, Minister of State at the Home Office, to the Chairman

The Government has tabled amendments to the Anti-social Behaviour Bill which make provision about high hedges in England and Wales. A copy of the draft amendments is enclosed.

The proposed amendments would give local authorities powers to consider complaints about high hedges in their area and, if appropriate, require their owners to cut them back.

In effect, the amendments would incorporate the High Hedges (No 2) Bill, a private member's bill promoted by Stephen Pound MP which, in spite of Government support, did not complete its stages in the commons in the 2002-03 Session. This bill contained substantially the same provisions as the High Hedges Bill [HL] introduced by Baroness Gardner of Parkes in the same Session, and considered by the Delegated Powers and Regulatory Reform Committee in its first Report of 27 November 2002. The amendments contain the following delegated powers (NB the clause references refer to the draft amendments enclosed with this letter. These are likely to change when published in the marshalled list):

New clause 4 (procedure for dealing with complaints) provides that a complaint about a high hedge must be accompanied by a fee set by the local authority. The level of fee must not exceed the amount specified in regulations (see clause 4(7)).

New clause 8 (appeals procedure) allows the Secretary of State and the National Assembly for Wales to set down in regulations the procedure for dealing with appeals. Regulations may, amongst other procedural matters, include provisions specifying the grounds on which appeals may be made (see clause 8(2)).

New clause 17 (power to make further provision about documents in electronic form) gives the Secretary of State and the National Assembly for Wales power to amend provisions in clause 16 about the delivery of documents in electronic form through regulations.

New clause 19 (power to amend sections 1 and 2) gives the Secretary of State and the National Assembly for Wales power to extend the scope of complaints (under clause 1) and to alter the definition of 'high hedge' (in clause 2) through regulations.

Amendments 21 and 22, amending clause 71 of the ASB Bill provides for the high hedges provision to be brought into force by commencement order.

Regulations made under clauses 4 and 8 would be subject to the negative resolution procedure. Regulations made under clause 17 and 19 would be subject to the affirmative procedure.

These delegated powers are broadly similar to those contained in Baroness Gardner's bill. There is one provision that was not included in that bill: the power in clause 17 to make further provisions about the electronic transmission of documents and the making available of documents on web-sites. This is a fast changing area of law and the need for further change may arise in a relatively short period of time. Any regulations made under this power would, as mentioned above, be subject to the affirmative resolution procedure, which I hope the Committee would regard as appropriate.

The Committee's report on Baroness Gardner's bill drew particular attention to the power to specify grounds of appeal in regulations, noting the possibility that the rights of appeal conferred on the face of the bill should, in effect, be limited.

The appeal provisions have been drafted to ensure that both the person who owns or occupies the land where the hedge is growing and the complainant would be able to appeal against a remedial notice issued by a local authority. Provision is also made to enable the complainant to appeal against a local authority's decision not to issue a remedial notice.

Grounds of appeal are not specified on the face of the bill because the Government wishes to consult widely on the detail of how the appeals system should work in practice. The most obvious grounds of appeal, from the complainant's point of view, would be that, contrary to the decision of the local authority, the hedge in question is adversely affecting their reasonable enjoyment of property and/or that the adverse effect warrants action being taken in relation to the hedges. Where a remedial notice has been issued, they might appeal on the grounds that the action specified in the notice falls short of what is needed to remedy the adverse effect of the hedge or to prevent it recurring.

The hedge owner, on the other hand, might appeal on the grounds that nothing needs to be done to the hedge or that the action specified in the remedial notice exceeds what is necessary to remedy the adverse effects of the hedge or to prevent it recurring. They might also appeal on the grounds that not enough time has been allowed to carry out the works set out in the notice.

The Government has no intention of limiting the basic rights of appeal set out in the new clause 7. However, before we settle on particular grounds of appeal, and to ensure that nothing is overlooked, we do want to take into account the views of all interested parties.

I hope that this is helpful.

17 October 2003

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