DOCUMENT SH100B
THE TRANSITIONAL 2003 WESTMINSTER HIGH HEDGES BILL
Introduction
In June 2009, the English
High Hedges Bill will have been in operation for 4 years. The Hedgeline Appeals
Adviser comments (May 2009):
“I would add that the whole system has worked fairly well in
England. The Councils have been their usual mixture - good guys and bad
guys - as in all work areas. Pins (Planning Inspectorate Appeals) have
been professional and thorough throughout and have mopped up any contentious
issues arising from bad guys in Councils.”
Dot Sharman. Hedgeline Appeals Adviser.
The
initial estimations of over 40,000 pending cases has turned out to be largely
diminished into a Local Authority workload substantially less than 10% of that
anticipated in the Steven Pound Bill.
“I genuinely doubted that anyone could object
to a brief and effective Bill that would provide some hope for the 40,000
plus hedge victims”
Steven
Pound. M.P.
It was one of the most
debated bills to receive the Queen’s Assent as an amendment to the 2003
Anti-social Behaviour Bill. This
attachment to the A.S.B.B. was an escape route from the destruction of three
private member’s Bills through wrecking amendments by Christopher Chope and a
small coterie of conservative cronies. They ensured that the will of the house
to secure a High Hedges Bill would never survive the Friday 2.30pm cut-off for
PMBs. Lady Gardiner running a parallel campaign in the House of Lords ended the
Chope persistence, by managing to add the High Hedges Amendment to the ASBB
declaring:
"I think that we
have a measure on which we have common agreement; there has been endless
consultation. We have had too many Bills. The Stephen Pound Bill, which we are
putting into the Anti-social Behaviour Bill, is fit for the purpose. It will
serve and protect our citizens in the way in which its movers and all those who
have supported it in the past seek. I beg to move."
Lady Gardiner. House of Lords.
The legislation, despite a major difficulty in estimating
cases, which it would serve, was quite a remarkable accomplishment. The bill
enabled legislation which was not implemented until 1st June 2005,
following a consultancy stage involving a wide number of stockholders including
Local Authorities and Hedgeline, the parent organisation of Scothedge.
The evolution of the Bill provisions took some 7 years,
during which time the understanding of the problem slowly advanced from the
initial view that it was neighbours needing help to agree over Leylandii
hedges, to the understanding that the nuisance hedge owners were acting
entirely within the law. In their own eyes they had broken no law and this was
enough to enable them to be malicious with impunity. A legal pretext had to be
established and “causing the loss of reasonable enjoyment of a home” had a
historic legal precedent in English law. This became the legal pretext.
For this loss to be proven called for skilled inspection by
Local Authority Staff. This was considered a service to the complainant and
costs were to be paid by the party calling for an inspection as a service. The
provision of a service ignored the small matter of having no other alternative.
If trapped within a hedge dispute this would be the only way to seek a just
conclusion. Worchester Local Authority explained in their advice to applicants:
It is
important to understand the way the legislation works. It allows the City
Council to review these cases, as independent and impartial third parties. It
is not investigating an offence - none has been committed, even if a
complainant 'wins' their case - and so the legislation does not deal in
innocent or guilty parties. As a result, the fee is a payment for a service -
not a penalty.
Worchester Local Council.
Probably because of the anticipation of tens of thousands of
inspections, the decision in England was to expect every Local Authority to
employ its own inspection staff. This required a massive replication of effort
which was avoided in Wales, by the appointment of a single inspector. But this
also had its drawbacks.
“In Wales they decided in their wisdom - not to train
officially all their high hedge officers. Some got training and some did
not, some were taught by others who had gone on a course but some were just
sent paperwork - disastrous!!!
Then Wales decided to add in a Human rights touch in their
guidelines thus swivelling the whole Act in favour of the owners.
Then if that was not bad enough - Wales decided to have ONE
INSPECTOR - AN EX SOLICITOR.
This man was a typical Solicitor, everything became on
appeal a compromise or failing that, a win for the owner!!!!! With no
other Inspectors and no way to appeal his decision - the state of play in Wales
is that high hedge victims are worse off if faced with owners appealing.
Also he decided that any land owner (and I am assuming that this
will occur in Scotland) who surrounded his estate with high hedges had a
'forest' 'woodland' not a high hedge. Despite aerial photography often
showing a faint line of trees holding in copses or woodland and never mind that
brand new estates had been built on these land owner's land (where they got
short of money and flogged off a bit for development) - so people moved into
their new homes to face these gigantic hedges - he would not budge on that.
So make sure you have at least more than one Inspector and do
not let them use anyone who does not have an arboriculturist type of background
- resist solicitors at all costs or one inspector!!!”
Regards
Dot Sharman. (Hedgeline)
The English
Legislation, whilst legally explicit, left implementation largely a matter of
whatever was locally deemed reasonable in over 300 separate Local Authorities.
Remarkably the English Local Authorities have generally managed the law in a
consistent manner but the Welsh Assembly, encouraged by their smaller
population, took an alternative option of a central inspectorate, but failed to
achieve sensible results by making the inspectorate a single, all powerful
individual.
Scotland may wish to follow the Welsh appointment of a
single central inspectorate but might consider a balanced three man team in
order to avoid the Welsh failures.
This document identifies successes and failures over the
first four years of implementation of the Westminster High Hedges Bill.
1. PERFORMANCE
Until there are returns from all the Local Authorities there
is no accurate record of the number of inspections carried out. We know however
that as of end April 2009 some 800 appeals were handled by PINs. Over the first year (2005) Hedgeline
estimated that 2/3rd of cases went to arbitration and that this
ratio has fallen to 1/3rd of cases in 2008. Over this four year period the average
appeal rate can be estimated as 50%.
The total number of cases therefore seems to be around 1600.
This case number is only a small fraction of that
anticipated during the planning stage of the legislation. A Birmingham
newspaper article at the end of year one identifies this overestimation and
assumes that the shortfall is due to the high fee charged for the inspection
service.
Shock fall in hedge disputes
COUNCIL: Peacemaker costs £350
By David Bell
FIVE thousand city families locked in bitter high hedge disputes with their
neighbours have decided to sit and suffer - rather than pay a hefty fee for a
council peacemaker.
Planners were braced for a busy workload when hedge battles were embraced by
anti-social behaviour laws a year ago.
But instead of getting hundreds of complaints, they have received only nine.
But this deduction was too simplistic. A better diagnosis
was possible by the examination of a report by South Tyneside Local Authority
contacted by Clare Hinchcliffe of Hedgeline.
“ I know that many more people are applying than going ahead. It was 1 in 40 in Tyneside. South Tyneside, I think. They managed to contact 2/3 of the 39 and all he hedges had come down under threat of the Law. This is happening a great deal, I understand.” Clare Hinchcliffe.
It
had always been the experience of Hedgeline and Scothedge that even approaching
legislation encouraged problem hedge owners to recognise that they were acting
improperly and capitulate rather than face the rigours of the law. As if to confirm this collapse in feared
overheads through many inspections, South Tyneside went on to reduce their fee
to zero. A Sandwell Council employee further confirmed this trend although
there is no figure to tell us how the cases were resolved.
Sandwell Council
has had 100 cases resolved. 99 cases resolved successfully before any fee paid.
The other one gave in two days before his allowed 28 days was up.
These indications when
combined with the PINs 800 appeals in four years establishes to a high degree
of confidence that the numeric
expectations for high hedge inspections is only a small fraction of that upon
which cost and workload estimations were made.
2. Success of legislation.
Within the narrow
definition of a hedge as being a line of 2 or more evergreen or semi-evergreen
trees or shrubs, the legislation has substantially achieved its intended
purpose as seen through the records of the PINs appeals process.
Perhaps the major success
has been the termination of cases through capitulation of the party most
worried about being found wanting through the inspection process. Rather than
face a compulsory remedial order or a rejected complaint, many hedge owners
took the decision to trim appropriately and trivial complaints were brought to
an end. This deterrent effect illustrates the primary aim of the legislation to
end disputes voluntarily and at no cost to the Local Authorities.
The second major success
has been the appeals process itself which appears to have smoothed out the
variations in inspection results by over 300 inspectors scattered throughout
England. The appeals during the first year were estimated to follow 2/3rd
of the inspections and they have latterly tailed off to around 1/3rd
as the law has bedded in and the inspectors become more skilled in their task.
3. Failures of legislation.
The most significant
failure appears to be the postcode lottery of charges for the inspection
service and the excessively high rate of many Local Authorities.
Fury at high hedges cost
By Peter Johnson
Telford residents
whose lives are blighted by giant hedges blotting out the daylight could be
forced to pay £500 up front just to get the borough council to investigate
their complaint.
The fee, being imposed under new “neighbours from hell” laws, was described as “absolutely
diabolical” by borough pensioners leader Harry Taylor.
This factor seriously
confuses accurate evaluation of the real number oif hedge complainants since
those failing to apply for inspection leave no records.
Also falling into this
category are those who have simply rejected the concept that the complainant
should pay all the costs as the victim of the high hedge problem.
This topic was discussed on
a forum following a Scottish query:
|
Alan Harris |
|
||||||
The
difficulties over fees was raised by Hedgeline in the pre-implementation
consultancy:
Q1: No. We strongly disagree with the premise
that a fee should represent the actual cost to the council of officer time
spent investigating the complaint. We repeat that it is iniquitous that a
victim of perceived Anti-Social Behaviour should have to pay a fee in order to
make a complaint. In what other area of criminal law is there a precedent for
such a procedure ? If a maximum fee
level is set, then the council should be permitted to vary or refund the fee in
certain circumstances. We suggest that where a fee is charged, and the
complaint upheld, the cost of the fee should be charged to the offender.
In respect of practical
considerations, it has been envisaged from the outset that once the Law is
working well the nuisance-hedge problem will diminish and with it most of the
expense to local authorities. The imposition of excessively high fees at the
outset would be counter-productive.
Q2.. We repeat that it is iniquitous to
expect the victim of Anti-social behaviour to pay for his complaint to be
investigated. The aim of the legislation is to protect the victim, not penalise
him for daring to make a complaint.
Q3. Though we would prefer to see no fee at
all, we propose an absolute maximum of £100, including VAT. There must also be
provisions for the reduction of the fee for persons on low incomes etc.
The overestimation of Local Council cost is less likely in Scotland following this English experience and the likely costs may be centred upon a single inspectorate working in partnership with Local Councils.
The big anomaly in the English legislation
arises from what has been described as a drafting error in the bill. The
refusal to allow hedge height reduction below 2 metres was a reasonable
decision however it blocked any remedial trimming which might kill a hedge. In
a Gilbertian logic perhaps the worst hedges became exempt from remedial orders
on the grounds that timming nto an acceptable height would kill the hedge as so
reduce its height to ground zero.
As referred to in the above forum excerpt,
the exclusion of deciduous trees also excluded worthy complainants from fair
remedy. This peculiar logic was a throwback to an early concept of loss of
winter sunlight when indeed summer sunlight loss is in many ways a more serious
problem. In any case light loss was not the only problem to be overcome. For
example encroachments which could not be easily dealt with because of hedge
height are not limited to winter months and excessive domination or viewpoint
aspects are clearly at their worst in the summer months when deciduous trees
have leaves.
Generally speaking the English legislation
excludes so many problems such as depositions and roots that very many complainants
have no access to the legislation and their disputes remain unresolved.