Scottish Guidelines
(SCOTHEDGE
PREPARATORY DRAFT)
High Hedges, Trees,
Shrubs and Plants reducing the reasonable enjoyment of neighbouring
residencies.
The legislation will
consist of an enabling bill which empowers and requires Local Authorities to
deliver a remedial order to the owner of trees, hedges, shrubs or other
vigorously growing plants, hereinafter
all referred to as plants, should the owner fail to remove a problem caused
by their plants to the detriment of a neighbouring property. Should the plant
owner fail to implement the remedy, then a fine will be prescribed and the
Local Authority will be empowered to enter the plant owner’s land to carry out
such remedial works as are necessary and charge the plant owner for all work carried out and have the right of
access to the owners property to complete this work.
The
identification of problems caused by such plants, the scope of the remedial
order and the procedures to be followed are contained in these “Guidelines”.
The Guidelines also
contain information to the grower of plants that either presently or may in the future cause
problems to a neighbour and for the complainants, so that all are aware of the considerations and
constraints that apply.
It is also the intention of these Guidelines to limit any
Local Authority involvement except to cases where they are being breached and
the plant owner is refusing to undertake remedial measures.In instances however
where an elderly, ill or vulnerable person may become engaged in a complaint
dispute with an unsympathetic owner, the Local Authority may take the initial
step of advising that owner that they are intent on investigating a possible
problem they may be causing to his neighbour/s.
The Guidelines should
enable a commonsense approach to the identification of problems caused by
neighbouring plants and the avoidance or removal of such problems. Without a
complaint, recognisable under the Guidelines, then there will be no Local
Authority requirement to intervene. The legislation will therefore not restrict
the growing of plants within a property but will come into force only when
problems are raised by neighbours which
may be identified in the Guidelines.
In this respect the
legislation does not interfere with the right to grow plants but does interfere
when plants cause problems to others. Such problems, in terms of the Act would
then fall under the definition of the
term “nuisance”.
The “Guidelines” can be
assigned to:
1) Unacceptable Plant Impacts.
2) Local Authority Guidance.
3) Legislation Aims.
1.1
The
domestic garden or surrounding land owned by others is always a significant
asset to where one lives and may be cultivated to provide an attractive
recreational space or landscape made all the more attractive by good
horticultural management. The property boundary forms the interface between
owners of adjoining lands. The wrong species of plant, in the wrong place or
under inadequate management can cause severe problems for an adjacent neighbour.
It is considered reasonable therefore for the affected householder to expect
consideration from the owner/s of any problem growth plants which whilst being
deployed to suit its owner may be the subject of nuisance to a neighbour.
Growing plants require routine management.
1.2
A
reasonable complaint would be one which, as a result of an unacceptable plant
impact, is defined within the Guidelines of the legislation.
1.3 Such
complaints would relate to loss of
reasonable enjoyment of a
property through:
a)
Unacceptable
or excessive domination by high plants which are causing nuisance to
neighbouring property.
b)
Unacceptable
or excessive encroachment by roots and / or branches which are causing nuisance
to neighbouring property.
c)
Unacceptable
or excessive deposition
(whether seasonal or not), of branches, leaves, needles or
resin deposits from plants overhanging
or close to the boundary which are causing nuisance, or damage to neighbouring
property
d)
Damage
through land heave, subsidence or water shedding.
e)
Loss of
reasonable access to a communal cherished view or views.
f)
Loss of
light (whether seasonal or not) caused by the planting or proliferation of an
excessive number of plants which are causing nuisance to a neighbouring
property
g)
Loss of
light (whether seasonal or not) to greenhouses and conservatories of a
neighbouring property.
h)
Loss of
garden fertility (whether seasonal or not) through light deprivation or
nutrient starvation of a neighbouring property.
i)
Insect
infestations (whether seasonal or not) from dominant plants close to a neighbouring property.
j)
Danger from
the proximity of problem plants whose height exceeds the distance between them
and a building and whose height from the ground level at the building to the
ground level of the plant plus the height of the plant exceeds the height of
the building or has potential for doing so.
1.4 Whilst most undesired impacts arise from
lack of consideration or ignorance
of the need to maintain boundary plants, there are cases
where such plants are deployed with the intention of causing harm to a
neighbouring property .In such cases it may be appropriate to also seek legal
recourse in addition to the issue of a remedial order.
1.5 Complaints relating to loss of reasonable
enjoyment of a property through the
impacts outlined in 1.3 must imply that
nothing should be ruled out when consideration
of the guidelines is being applied. For example it could be that a single
deciduous tree or even a reasonable sized beech hedge is the cause of a serious
problem, then that problem it causes should equally be considered within the
protocol of the Scottish legislation.
1.6 If in effecting a remedy to a problem plant growth by trimming
branches or by cutting back to the boundary line any excess of root extension
or by reducing the height growth to a more reasonable and acceptable size that
plant growth subsequently dies neither the Council nor the neighbour raising
the complaint shall be held responsible. The responsibility for the maintenance
and non impact on neighbouring occupiers for the plant rests solely with the
owner.
2.1
The Local
Authority will make available guideline leaflets which will outline good
practice in the deployment and management of plants so as to avoid the above
problems. When a complaint is received, drawing the attention of the parties to
the Guidelines and to the penalties against causing problems to a neighbour,
will in many cases be all that is required and this outcome should be
encouraged within a reasonable time period (6 months ??).
2.2
Where a
complaint can be recognised as a topic of the Guidelines and is not responded
to by voluntary removal of the problem, then the Local Authority will issue a formal warning to the plant
owner that should the problem not be removed, then a remedial order will be
issued and a penalty for non-compliance will be prescribed. A fee can be
charged to the plant owner for assessment of the problem. Should the complaint
not be recognised within the Guidelines nor appear on inspection to be of
substance , then no further involvement of by the Local Authority will be
necessary. In such cases a fee can be charged to the complainant by the Local
Authority for determining the complaint
as not having satisfied the terms of the Guidelines.
2.3
Issue of a
remedial order can be appealed against (within 14 days of issue?). If this
happens an appeals procedure will be implemented by the Local Authority.
2.4
Notification
by the Local Authority of a failure under the Guidelines of a complaint can also
be appealed against (within 14 days of issue?). If this happens an appeals
procedure will be implemented by the Local Authority.
2.5
The cost of
the actions raised under 2.3 & 2.4 will be borne by the person or persons
raising the appeal, unless that appeal is approved ??.
2.6
The issue
of a remedial order is a last resort action following the warning procedure.
2.7
The
resolution of the problem should not be left to personal confrontation of the
participants but be accomplished by compliance with a request from the Local
Authority to remove the problem. The process should be similar to a complaint
to a Planning Department over a planning issue.
2.8 In effecting a satisfactory remedy for any improperly sited
and/ or mismanaged plant/s, that remedy should not specifically exclude nor
restrict the actual removal of the plant/s provided the necessary parameters of
the Act have been satisfied and that the problem plant/s has/ have been proved
to be the cause of the nuisance.
3.0
Legislation Aims
3.1 The intention of the
legislation is to secure an equitable resolution of problems arising through
the careless or vindictive management of plants owned outside a residence but
having an undue and damaging impact upon the residence so as to reduce the
quality of life for the affected residents. This reduction in quality of life
arises both from the direct influence of the problem plants and from the stress
in being forced into personal contention with the plant owner. The combined
effect of pressure on the fair living space and a personal confrontation can
for many people be very uncomfortable
and stressful. In the case of man made
structures, the acceptable solution lies within the authority of a Planning
Department. The decisions are in accordance with established guidelines and direct
personal confrontation between vested interests is in the main avoided. The
motivation of this current legislation is to attain a similar civilised
resolution where plants are causing identifiable problems to nearby residents.
3.2 Owners of plants may
respond abusively when their right to grow whatever they like is challenged by
neighbour. It is easy to understand that being under no statutory constraint
this unfortunate response becomes an indecent means towards the diversion of
reasoned argument and being forced to admit that the complainant has a valid
case. The authoritative Guidelines and the provision of a statutory penalty if
the problem is not addressed should in itself tends to now prevent any such
this unreasonable stance. and combined with authoritive guidelines, all but the
most intractable contentions are likely to be avoided.
3.3 In a very real sense,
the complainant bears financial maintenance costs which cannot be avoided if
the plant owner is intransigent. Their house property values can plummet when a
neighbour dispute is active. The continuous abatement of somebody elses hedge
may require the employment of contractors which is expensive and on going. Loss
of a communal cherished view may substantially lower the value of a property.
Should frustration cause a complainant to undertake illegal trimming or cause a
hedge or tree to die, then if taken to court, very large astronomical fines may
be imposed. The affect of the dispute and the problem is quite able to amount
to theft of the ability to survive retirement or to maintain a reasonable
quality of life. Provision of fair resolution will avoid these harmful and
severe financial risks and penalties.
3.4 It is not everyone who
can face an inconsiderate or vindictive plant owner without considerable stress.
With the vast majority of the complainants simply wishing to enjoy the final
years of their life in peace with the world, the misery of a personal dispute
can be devastating. It is reasonable to assert that in many cases, the stress
will actually shorten life. Where complainants are already suffering heart
problems or high blood pressure, the imposition of unavoidable stress will
certainly result in risks to health. By supporting the complainants with
statutory guidelines and protecting them by appropriate penalties, there is a
far better chance that life can be returned to normal with the such stresses
removed.
3.5 In a small number of
cases, the deployment of plants close to a residence may be
vindictive. A landowner wishes to
hide a building which can be seen from his property. A plot owner having been
refused permission to build, may deploy, as an example, a row of Leylandii or
whatever other problem plant/s just to penalise the resident/s who may have
raised objections to the development. The legislation will prevent such
vindictive deployments by enabling the complainant to invoke the Guideline
standards and achieve remedy.
3.6 The matter of growing
hedges to provide privacy should be placed within the context of the height of
wall which the Planning Department might accept. Otherwise the high hedge is
simply a means for defeating the planning regulations. There is no
justification for a 10 metre high hedge under the pretext of privacy if it
presents problems to those whose homes are on the other side of it.