Legislation to end irreconcilable, residential, high hedge, tree and bush disputes.

Bitter wars often ensue when nations perceive their cross border interests to have been compromised through unilateral action by a neighbouring state. Civilisation depends upon guidelines, treaties and laws as a basis for negotiation and peaceful resolution of contentions.

Peaceful residential co-habitation is largely achieved through planning rules and the deflection of contentions to democratic third parties. Garden walls, satellite dishes and flagpoles attract arbitration by Local Councils to establish fair residential use of land with an added wider access through which to implement general planning policy.

Whilst those who lose out under the rule of the Planning Application may feel unhappy, they have to accept that arbitration has applied the rule of law in a democratic process. The decision has been made. Similarly those who gain planning approval may proceed with confidence in the knowledge that they have community backing. The matter is ended.

The situation is quite different in the matter of major growing plants such as hedges, trees and bushes. Massive and expanding growths can reduce a small domestic homestead to a clearing in a forest and deny fair enjoyment of a residence, submerged within a neighbour’s excessive boundary plants. These may meet the aspirations of their owners, but manifestly have serious and progressive destructive impact on the neighbouring property, to the distress of its inhabitant.

Bad though this situation may be it is made intolerable by the fact that there are no guidelines and no third party options for fair resolution. There is no legal constraint or guidance over plant deployment where height may become inappropriate. Neighbours are forced into personal dispute where there is no mechanism for fair resolution. Worse still such unsuitable hedge and tree deployments are sometimes vindictive. The immunity to challenge may be used by one of the parties to retaliate against the complainant for any reason. Typically a neighbour having been refused building permission upon a legitimate objection by a neighbour, may with impunity plant a row of Leylandii having much greater destructive capacity than the rejected building project. A Gretna resident chose this option when a fence was rejected by the local Planning Department. Vindictive response may simply be triggered by the complaint.

The aggrieved party having approached the Local Council, Councillor and MSP quickly understands that there is no mechanism for fair resolution and having raised the complaint with the hedge or tree owners finds that personal dispute is unavoidable and yet impossible to resolve short of capitulation. The problem only gets progressively worse as the hedge grows. A contented enjoyable life in a neighbourhood has been destroyed by the knowledge that a neighbour is prepared to refuse resolution and has every capacity to do so under the current statutory disinterest.

The worst case scenario is where an elderly retired resident, in poor health, suffers progressive amenity loss and faces an aggressive and selfish perpetrator to bring expense, misery and stress to final years. In several Scothedge cases, widows and widowers are aggrieved by the feeling that their partners have had their ends hastened by the strife. In an Edinburgh case, the hedge came down immediately following the death of the husband giving evidence that it was only retained to rile the deceased complainant or to prevent loss of face. An Inverness complainant faced the planting of many more trees as a retailiation to his complaint.

Other serious cases have involved physical assault. In one case an elderly pensioner was reported to have been pushed from his ladder whilst attempting legal abatement. In another case a Scothedge member had to involve the police when she was driven at by the perpetrator’s car. In England there have been deaths when frustration boiled over. The police can deal with the physical aggression but cannot resolve the high hedge and tree problem or the un-neighbourly stress. One MSP commented that she never failed to be dismayed by just how nasty neighbours can be to each other.

Many hedge and tree owners argue that high hedges are required for their personal privacy – but at what cost to their neighbours? This has to be a matter for third party adjudication. A large residential garden may accept high hedges as an asset but what of the small neighbouring garden where the hedge or tree swamps its environment and where the unsuitable deployment blocks windows and steals garden, house amenity and property value. Roots may damage drains and patios, high overhanging branches may block gutters and require expensive contractors to abate. The overhead of attempting to trim and aggressive hedge or tree may be huge and ongoing. An Aberdeen hedge owner told the complainant that she had a busy career and simply had not the time to attend to her garden. Having abated to the boundary the unsightly result may bring added distress. Should the work damage the property, namely the hedge or tree, then the abating party may face a law suit which he can lose and face serious financial penalty. An Edinburgh man was fined £5000 after mistakenly trimming a hedge. A Northumberland resident was fined £20,000 despite the judge advising that the hedge in question was unreasonable. He appealed and the fine was raised to £70,000. The founder of Hedgeline had to pay legal fees of over half a million but finally won his case only because of a legal loophole. The law could not address the problem hedge.

The landscaped residential development featuring outstanding sea views may be hijacked by a single neighbour desirous of hiding his uphill resident from view. A cottage in Arran has its sea view completely removed by a row of Leylandii where the grower has refused to limit height. A home in Limekilns physically designed to feature its outlook within a development, faces severe loss of both amenity and value. In one such case, the lawyer hedge owner simply said that he would not do anything until the law was changed. In the highlands a church hall cannot be sold because it is completely immersed in Scots Pine and decaying through dampness. The owner of the trees sees it as against his interest to see the property renovated as a home and has effectively taken the law into his own hands to block the approved development.

The whole situation is desperately unfair and exacerbated by the availability of fast growing cypress varieties. And yet such varieties cause no different problems than much slower varieties when they eventually achieve problem dimensions. The Leyland cypress just gets there faster and requires more aggressive management. The Leyland Cypress has therefore become an icon of the problem. A single ewe tree can wreak worse havoc than a Leyland hedge. The problem is not the species but the deployment and management without due regard for any effect upon neighbouring properties.

Having said that, clearly there are situations where the planting of aggressive forest trees should be inhibited. Urban and sub-urban housing estates may not provide ground space to accommodate large trees and hedges. In such cases title deed inhibitions may be appropriate. In other cases substantial trees may enhance a neighbourhood before backland or infill developments take place and it may be appropriate that they should remain. Trees protected by T.P.Os may require reassessment as part of a fair arbitration process and the T.P.O. re-confirmed or revoked as appropriate.

In many cases amenity trees and hedges are initially accepted as an asset by neighbours until eventual growth brings problems. Any remedial trimming may only have temporary benefit. Ownership of properties may change bringing new perceptions of fair hedge and tree management. The hedges and trees may remain unaffected but the tolerance of the parties may bring contentions.

In a sense, the problem has nothing to do with the species of plant but has everything to do with the perceived nuisance. Where there are no rules and no guidance neighbour expectations may be unrealistic on either or both sides of the curtilage. Impartial and sensible assessment is required.

Unresolved contentions lead some into anti-social behaviour and failing to respond to a complaint from a neighbour can in itself be anti-social behaviour. Where vindictiveness is in play, then anti-social behaviour is confirmed. Where aggressive pressure is levied against a fair complaint, anti-social behaviour is confirmed. But this is not always the case.

The plant owner may not afford proper remedial action or may be simply ignorant of their communal responsibility.

So the elements of the disputes may be seen to be:

1) A valid or spurious cause for complaint involving close to boundary plants.

2) An ensuing personal confrontation where participants stand on their personal perceived rights, uncertain in law and are forced to engage in dispute without independent third party adjudication or final resort resolution.

In the vast majority of cases the parties come to a reasonable accommodation but this is entirely reliant upon the plant owner accepting an unwritten responsibility to behave in the interests of his neighbour in the belief that the freedom to grow within a garden does require such consideration. Unfortunately a minority do not perceive this responsibility and deny a complainant even the courtesy of a hearing. It is of significance that lawyers and self made businessmen appear to possess the mindset to stand upon their rights without any regard for unwritten social responsibility. The contention as one MSP put it in debate is between a sheep and three wolves where the complainant lacks any protection.

So it is incumbent upon the law to provide protection and to enable fair rules for engagement and final resort resolution. With such provisions in place the opportunity exists for the contention to be ended before it becomes a dispute.

Evidence coming from England where legislation was placed on the statute book in 2003 and activated in 2005 shows that the existence of third party arbitration resolves the vast majority of cases simply because one or other of the parties realises that they will be found to have been unreasonable in their stance and be penalised. Typically in South Tyneside 40 disputes provided a single arbitration. Research showed that the majority of problem hedges were trimmed. In Birmingham the Local Authority prepared for some 1500 arbitrations whilst the reality was only in single figures. Some of this reduced expectation did however come from high fees for arbitration to be paid for entirely by the complainant and anomalous definitions of the qualifying problems which denied complainants the arbitration route. At the centre of the anomalies was the decision to give consideration only to a narrow definition of a hedge as “two or more evergreen trees” and to refuse remediation if the problem hedge might be killed by trimming to such a height that would remove the problem. This was an accidental outcome of a ruling that a hedge could not be removed. Killing it effectively removed it and so many of the worst problem hedges became protected.

After seven years, Scott Barrie himself, suggested that the appropriate path should be to regard the effect of hedge mismanagement as ‘nuisance’ where the complainant sought redress. This extract from South Derbyshire seems relevant:

"You will no doubt be very surprised to learn that South Derbyshire District Council are not charging ANY fee at all. The issue over which department should deal with the new high hedges legislation and what we should charge was discussed with councillors some months ago. With the available information at the time, members felt that the issue was more "nuisance" related and therefore decided to allocate the duties to Environmental Health (rather than Planning which most authorities appear to have done). As it was felt to be a nuisance issue it was considered unfair to charge for the service when a member of the public can complain about neighbours' bonfires / noise etc. without having to pay a penny. This decision was made on the proviso that the charge (or lack of) can be reviewed at any time should the new law become a burden on department resources. However, I would imagine that any charge imposed would be still relatively small in comparison with most other authorities" - Environmental Protection Manager - South Derbyshire District Council.

Indeed the statement is the key to an improved Scottish Bill which deals with NUISANCE and BEHAVIOUR rather than PLANNING issues.

An extremely simple and inexpensive solution can be envisaged.

1) Parties facing such dispute could apply to their Local Council for “Guidelines” which outline unacceptable “nuisances” which can result from inappropriate High Hedge and Tree deployment and offer third party arbitration should the parties fail to follow the guidelines.

2) A central arbitration service could be empowered and required to arbitrate according to the “guidelines” and where appropriate, to issue compulsory remedial orders designed to remove the identified nuisance.

3) Should the party which has been issued with the remedial order fail to comply, this response can be considered to be anti-social. Remedial action could be taken by the Local Authority with costs falling upon the party held responsible for the nuisance.

4) The decision of the arbiter could be taken to appeal should the affected party feel that the arbiter has failed to follow the guidelines.

The legislation might therefore consist of an enabling Bill to enable and require Local Councils to provide High Hedge, Tree and Bush guidelines, to manage the arbitration service and to implement its decisions.

Considering the England/Scotland demographics a single arbitrator could probably handle Scottish arbitrations with annual applications probably falling below double figures.

The major resolution would come from available “guidelines” and a final resort intervention which would remove the absolute immunity of the owner of the “nuisance”.

By focussing upon the “nuisance” rather than the size or species of plant, the anomalies of the English legislation could be substantially eliminated. The trigger height of 2 metres hedge or tree height might be retained to eliminate the “hollyhock” effect(John Home Robertson MSP 14/9/06).