DOCUMENT SH46

THE CAMPAIGN TO END INTERMINABLE BOUNDARY PLANT DISPUTES

There is something viciously stressful about seeing your residential asset trashed by the unfortunate deployment of problem yielding, external, excessive plants such as hedges, which upsets fair living within the communal residential environment and being refused remedy, sometimes aggressively by a neighbour, as the sole judge, jury and perpetrator of the problem.

In the civilised world, which we aspire to, vested interests are denied the ability to unreasonably damage the common weal, by last resort legislation. A high wall will be refused planning permission if it is deemed to adversely affect others. Satellite dishes may be forbidden if they break a house skyline and flagpoles may require local authority permission. Buildings inappropriate to a site are refused planning permission.

And yet an excessively intrusive and damaging plant is effectively protected when its impact may be major theft or destruction of amenity and physical encroachment, which would be voted down in the case of man made structures. Local authority arbitration against planning guidelines protects the rights of individuals in the case of man-made developments within planning policy.

Worse still, the problem is expansive as plants grow and the absence of communal legislation faces neighbour against neighbour supported by no rules of engagement, with only the plant owner having the ability to address the problem. Left un-managed, the greenery may take on the dimensions of a three storey building, inches from house windows and depositing a deadly blanket of leaves, needles and resins – not to forget nasty allergens. Root and branch encroachments may be expensive and difficult to deal with and the dangers of tree fall may be present. Trust in an unresponsive or aggressive neighbour is replaced by disgust at sight. The indecency of inconsideration is in some cases vindictive and intentional of harm, augmented by threats of violence. This is against any justice and it bears most cruelly upon those who have a belief in equitable community life and the rule of law. To those retired and living ‘twenty four-seven’ in their homes the injustice is even more intolerable and traumatic as their major asset , their home, home is, little by little devalued and turned into nothing at all.

The perpetrators of the problem are that minority which seeks advantage by using cracks in regulation in total disregard of common decency. As in the banking furore, the empowered grab it all. Westminster legislated in 2003 to provide Local Authority Arbitration in the case of defined hedges after five years of wrecked private member’s bills through an amendment of the English Antisocial Behaviour Bill. Emanating as a rescue attempt from wrecking amendments, the Bill was naively flawed but brought about many capitulations where the insecure party in a dispute understood that their freedom to disregard commonsense and decency would be revealed within a formal arbitration process – and dealt with.

The problem however does not evaporate north of Hadrian’s wall but in some respects the guideline requirements change with the increased asset of cherished views as a valued communal resource and the dominance of species such as Scot’s Pine. In 2000 the Scottish Executive launched a Public Consultancy. The then Minister of Justice, Jim Wallace accepted in January 2001 that legislation was probably the required approach. In 2003 MSPs backed the proposal by MSP Scott Barrie to launch a “High Hedges (Scotland)” bill. However nothing was launched and in the Autumn of 2003, the Standing Orders changed to require a Public Consultancy which was not launched until Autumn 2006 – too late for the Parliament and without publicity. Meanwhile, Westminster had legislated in an amendment to part 8 of their Antisocial Behaviour Act in 2003.

With the election of the SNP Government in May 2007, Fergus Ewing included the issue in his portfolio and postponed consideration until the conclusion of his substantial antisocial behaviour review which was published in March 2009.

The campaign to secure an end to this injustice has taken nearly a decade but in mitigation, the scale, effect and reasons for these disputes is now known far better, in Scotland, than it was in the early days of the Westminster Private Member’s Bills.

Whilst Leylandii became the initial icons of hate, the real source of dispute is the absence of last resort resolution in a fair and final manner by informed and independent judgement, similar to that provided to level the structural planning process.

The English legislation provides a last resort process through Local Authority arbitration, remedial orders, an appeals process and ultimately enforcement and penalties. Despite high hopes - “ 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" (House of Lords 2003) - severe inadequacies were evident incurred by poor drafting of the arbitration guidelines, the confusion of multiple inspectors and the freeing of Local Authorities to set their own inspection costs. The jewel in the process has been the single Appeals Court, which has attempted to make sense of the legislation in an increasingly sympathetic manner. The Bill will be reviewed in 2010.

The Scottish Parliament can revise the same route or come up with a better solution but the status quo is bitterly destructive of fair enjoyment of a home and friendly cohabitation of a residential community.

With the Promoting Positive Outcomes (PPO) aspirations of better community life, the propose framework suggests the model within which the required legislation should achieve its ends of fair communities, living together in an enjoyable environment. Without the inhibition of a last resort intervention and enforcement, affected families will remain abandoned and isolated under the stress of a breakdown in justice which allows them to be bullied by those who care to adopt this means of securing their vested interests whatever they may be, regardless of common decency. England has closed this door with an imperfect bill which regardless of its imperfections has brought large scale capitulation where its limited scope has been effective. The model appears functional but the parameters and guidelines need revision.

That then is the issue, which the Scottish Parliament has struggled to address since 2000 and which is now being examined in detail by the Community Safety Unit team in liaison with Scothedge and other stakeholders. Importantly however it is Scothedge victims who experience fully the trauma of isolation from justice and abandonment to the bullies to whom right is might if it serves their vested interests. Their protection is long overdue.