ANTI-SOCIAL BEHAVIOUR BILL - GOVERNMENT
AMENDMENTS FOR REPORT STAGE
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
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