Planning Inspectorate newsletter - Issue 1
Implementation of High Hedges Appeals
A 1999 consultation paper estimated that there might be around 17,000 unresolved neighbour disputes in England and Wales regarding hedges, mostly concerning overshadowing or loss of outlook. Existing procedures were judged ineffective, and provisions inserted in Part 8 of the Anti-social Behaviour Act 2003 empower Local Authorities (LAs) to act in default of neighbour agreements. LAs can issue decisions and serve remedial notices. Section 71 enables complainants and hedge owners to appeal to the First Secretary of State.
The regulations for Wales The High Hedges (Appeals) ( Wales ) Regulations 2004 (SI 2004 No 3240 (W.282)) came into force on 31 December 2004 . The regulations for England ( The High Hedges (Appeals) ( England ) Regulations 2005 (SI 2005 No. 71) came into force on 1 June 2005 . There are a few minor differences in the regulations, the main one being that all appeals in England are dealt with by accompanied site visits, whereas in Wales appellants can also ask to be heard.
A high hedge is defined in the Act as so much of a barrier to light or access as is formed wholly or predominantly by a line of two or more evergreens; and rises to a height of more than two metres above ground level. The Act not only applies to Leyland cypress or conifers but also includes other evergreen trees or shrubs, such as laurel. It does not include climbing plants such as ivy, or bamboo which is classed as a grass.
The Planning Inspectorate is issuing guidance and appeal forms which are also available on our website. High Hedges Appeals Guidance. Comprehensive guidance for complainants and Councils has also been produced by ODPM. Inspectors who have a variety of relevant specialisms have been trained to assess and decide these appeals. The training, in early October, was mostly provided/delivered by speakers from ODPM. An administrative team has also been trained to process the appeals and to answer appeal related queries.
An appeal can be made only against a decision or remedial notice issued by an LA in response to a formal complaint about a high hedge. The Act gives LAs powers to charge a fee for this service and they can also turn a complaint away if they decide that the complainant has not taken sufficient steps to resolve the dispute before the complaint is lodged. The person who has complained to the LA about the hedge in question and the owner or occupier of the land where the hedge is situated have a right of appeal after the LA’s decision has been issued.
When dealing with a complaint about a high hedge the LA must assess whether the height of the high hedge is adversely affecting the complainant’s reasonable enjoyment of his or her domestic property. In so doing they will also take into account the case made by the hedge owner and its amenity value. The Building Research Establishment has produced an arithmetical guide to help calculate the ideal height at which hedges should be maintained to mitigate their adverse effects on neighbouring homes and gardens.
When making their decisions, Inspectors have access to the documents held on the LA’s file and, as representations have already been exchanged at complaints stage the English regulations provide only for a further written exchange when an appeal raises new issues. The Act applies exclusively to the effects of the height of the hedge; complaints about the effects of roots such as subsidence, drain blockage or the siphoning of moisture and nutrients from the soil are not relevant in this context. Neither the LA nor the Inspector can require any action which would involve a reduction of the height of the hedge to lower than 2 metres above ground level or the removal of the hedge. Removal, as defined in ODPM guidance “High Hedges Complaints: Prevention and Cure”, includes action that would result in the death or destruction of the hedge.
In practice, many of the appeal documents submitted to date have included personal and emotive matters, indicating that the hedge has become a further issue in a long-standing and seemingly irreconcilable dispute between the two parties. However, concerns that the hedge has caused worry, or depression leading to health problems, or the costs involved in reducing the height of the hedge are not matters that will normally be considered to be relevant.
To date, The Planning Inspectorate has received 56 appeals in England and 1 appeal in Wales . Charting of Inspectors to cases is ongoing. Of the 56 English appeals 15 have been made by hedge owners, the remaining 41 by complainants. 1 of the 56 has been withdrawn and 1 has been rejected. 5 site visits have taken place in England all within 9 weeks of the appeals being lodged and 2 dismissed decisions have been issued.
Both of the issued decisions concern appeals made by complainants. One was against the LA’s decision not to issue a remedial notice. The LA had calculated that the hedge in question had not reached a height at which action was required to alleviate its effects, and the Inspector concurred with this decision. The other appeal was made by the complainant on the grounds that the remedial and preventative actions specified in the LA’s remedial notice did not go far enough to alleviate the effects of the hedge on her house and garden. In this case, although agreeing with the appellant, the Inspector found that he was unable to issue a more effective remedial notice because the powers given by the Act did not enable him to do so.
Alan Langton
Operational Director, Wales and Major/Specialist Casework