Tuesday, April 01, 2014

High Hedges (Scotland) Act 2013

On a number of occasions in the past, I have raised the issue of high hedges following concerns from West End residents about the lack of adequate legislation to help tackle the problem of overly high hedges, over-shadowing, etc.   

It is therefore good to see the High Hedges (Scotland) Act 2013 coming into force today.   The City Council has provided councillors with a useful guide that should answer questions they and residents may have about applying for a High Hedge Notice and how the legislation operates.   With the permission of the Head of Planning, I reproduce this below and there is further useful information available on the council's website here:

1 Are all Trees and Shrubs Covered by the Act?
No. The Act only relates to high hedges.  To constitute a “high hedge” the trees and/or shrubs must firstly constitute a hedge. 
The Act does not define a “hedge” but the Oxford English Dictionary defines a “hedge” as “a row of bushes or low trees (e.g. a hawthorn, or privet) planted closely to form a boundary between pieces of land or at the sides of a road”. 
If the trees or shrubs that are causing you a problem are not a hedge then you cannot make an application under the Act.  It will be for the investigating case officer to decide whether trees planted closely together form a hedge, or not.  If they are not a hedge then you cannot apply for a High Hedge Notice.
The Act specifically states that a single tree or shrub cannot constitute a high hedge.

2 What is a “High Hedge”?
The Act only relates to high hedges which are defined as a hedge which:
a is formed wholly or mainly by a row of 2 or more trees or shrubs
b rises to a height of more than 2 metres above ground level, and
c forms a barrier to light.
A hedge is not to be regarded as forming a barrier to light if it has gaps which significantly reduce its overall effect as a barrier at heights of more than 2 metres.
In applying the Act in relation to a high hedge, no account is to be taken of the roots of a high hedge.

3 I’ve heard that only hedges made up of certain types of trees will be covered, is this true?
No.  All types of hedge – whether they be made up of evergreen, semi-evergreen or deciduous are covered by the Act.  However, the hedge must be over 2 metres tall before it can begin to be considered a high hedge – but not all hedges over 2 metres will automatically be termed a ‘high hedge’.

4 What if the trees/shrubs are covered by a Tree Preservation Order (TPO)?
The existence of a TPO does not prevent action being taken but it will be taken into account by the Council is determining the application.

5 Who Can Make an Application?
To make an application you must be the owner or occupier of a domestic property and you must consider that the high hedge, on land owned by another person, adversely affects the reasonable enjoyment of your property.
6 Do I need to do anything before I make an application to the Council?
Yes.  An application to the Council is seen as a last resort.  Before making an application, you must be able to provide evidence to demonstrate to the Council that you have tried to reach a solution with the hedge owner.  The Council will expect this evidence to include a recent attempt at negotiation in the light of the coming into force of the Act (the coming into force of the Act may encourage hedge owners to take a more accommodating stance).  It is difficult to state what evidence will be sufficient but exchanges of letters/emails and/or attempts at mediation would constitute such evidence. It is not sufficient to simply state that your neighbour is unapproachable and provide no evidence of attempts to resolve the situation.

7 What if I do not know who owns the land on which the hedge is situated?
You must take all reasonable steps to identify the owner of the land and record these in any application you make.  These steps could include contacting Registers of Scotland and/or Companies House. 

8 I have tried to reach an agreement with my neighbour, but haven’t been able to. What do I do next?
If you’ve been unable to reach an agreement over the hedge, at that point you will be able to submit an application to the Council.  You will need to submit a completed application form, details of the hedge and how it affects you and evidence of attempts to resolve the situation along with a fee of £400.  If you cannot demonstrate that you have taken all reasonable steps to resolve the dispute or the Council considers that the application is frivolous or vexatious then the Act obliges the Council to dismiss the application.

9 What happens after I’ve paid the fee and the application is lodged?
The Council will notify the hedge owner that an application has been made, invite them to make representations (which will be copied to you) and then someone from the Council will go out to the property to assess the hedge, and its impact on the reasonable enjoyment of your property. 
Once they have made a decision, they will notify both parties of their decision.

10 Are there any circumstances where the fee might be partially refunded?
Yes, if an application is dismissed because you cannot demonstrate that you have taken all reasonable steps to resolve the dispute or the Council considers that the application is frivolous or vexatious or if the application is withdrawn within 28 days of submission the Council will refund half the fee (£200).

11 Who decides the application?
Under its Scheme of Delegation the Council has decided that the Director of City Development will determine all applications under this Act.

12 The Council has decided to take no action either because it considers that there is no adverse impact or that there is an adverse impact but no action should be taken but I disagree. What can I do next?
If you disagree with the decision of the Council, you will have the right of appeal to the Directorate of Planning and Environmental Appeals within 28 days of being notified of the decision.

13 The Council has determined that action should be taken. What happens next?
The Council will communicate their decision to both parties, and the hedge owner will be given a deadline by which to meet the terms of the high hedge notice.  If they fail to take the remedial action on the hedge in that time, the Council can arrange for the work to be carried out.  The Council will have the power to recover the cost of any work carried out from the hedge owner.

14 I am the hedge owner. The Council has said my hedge needs to be cut back but I disagree. Can I appeal?
Yes. Both sides have the same right of appeal to the Directorate of Planning and Environmental Appeals within 28 days of being notified of the decision.  Both parties can only appeal once.

15 I live in a property which suffers from lack of light due to a high hedge, but the hedge is not on land immediately adjoining my property. Can I still make an application?
Yes. The hedge does not have to be on land immediately neighbouring the property of the person making the application. It just needs to be a significant barrier to light affecting the reasonable enjoyment of the property.

16 Does the Act cover issues such as problems caused by pine needles blocking drains, leaf fall and root damage?
No. Where plant life is causing damage to a property, there are existing civil methods which exist to address these issues. This Act is designed to deal with the problems resulting specifically from hedges creating a significant barrier to light.

17 Will the Act be reviewed?
Yes.  The Act contains specific measures to ensure that it will be reviewed within five years.  This includes a review of the definition of a high hedge, so that changes can be made if required.

18 Further Information
Please contact 433105 or development.management@dundeecity.gov.uk if you have any further questions.