New provisions for dealing with "high hedge" disputes

On 1 June 2005 Part 8 of the Anti-Social Behaviour Act 2003 (the “Act”) comes into force. Part 8 deals with high hedges and provides a way of dealing with disputes that arise due to the height of hedges where previously there has been no mechanism. Whilst there has been much publicity surrounding hedge disputes involving domestic property, commercial premises could now face being served with a notice by the local authority requiring remedial action to be taken in relation to hedges growing on their land if the criteria set out in the Act are met.

What is a high hedge?

For the purposes of the Act a high hedge is defined as a barrier to light or access formed wholly or predominantly by a line of two or more evergreens and rising to a height of more than two metres above ground level.

Breaking this definition down;

"Line of two or more"

For the Act to apply there needs to be a line of two or more evergreens. The Act does not apply to a single tree or shrub. Guidance issued by the Office of the Deputy Prime Minister ("ODPM Guidance") suggests that two or more trees or shrubs do not have to form a straight line as long as they are roughly in a line.

Barrier to light or access

The hedge must be a barrier to light or access. Gaps in the hedge will be taken into account. Barrier to access does not mean just physical, it can also relate to access to a view.

Evergreens

Section 66 of the Act defines an evergreen as "an evergreen tree or shrub or semi-evergreen tree or shrub." The ODPM Guidance suggests that a semi-evergreen means a hedge that retains some live foliage throughout the year and rather unhelpfully the ODPM Guidance suggests that what shrubs will be classed semi-evergreen will depend on their location in the UK. As the definition of high hedge requires the hedge to be "predominantly" formed by evergreens the Act may apply to a hedge that is a mix of evergreen and deciduous plants.

"Two metres above ground level"

The Act only applies to hedges that have grown to a height of two metres above ground level. It is thought that the two metres will be measured from the ground where the hedge has its roots. Therefore, if the complainant's ground is lower than that land on which the hedge is situated the Act will only apply once the hedge has reached two metres from where it is growing, even if it is three metres above the complainant's land.

To whom does the Act apply?

The Act applies to owners or occupiers of domestic property only. To make a complaint the owner or occupier of domestic property must show that his reasonable enjoyment of the property is adversely affected by a high hedge. To qualify under the Act the reasonable enjoyment of the property can be to a part only of the property. Therefore, it is not necessary to show that enjoyment of the property as a whole is adversely affected. The Act also applies to prospective occupiers who would be adversely affected. It is the affected land that must be domestic and not the land where the hedge is situated. Therefore, hedges on commercial land/parks/open spaces may fall foul of the Act if they adversely affect domestic land.

The local authority's powers

The Act's emphasis is on resolving complaints between parties. If the local authority does not consider that the complainant has taken all reasonable steps to resolve the matter it may decide that the complaint should not proceed.

If the local authority does think the claim has merit it must decide whether the height of the hedge is adversely affecting the complainant's reasonable enjoyment of his domestic property and, if so, what action should be taken. If action is to be taken the local authority must issue a remedial notice. The remedial notice will, amongst other things, specify what action is to be taken which may include requiring the hedge to be cut to the appropriate height or taking such steps to prevent problems recurring. It should be noted that the local authority cannot require a reduction of the hedge to below two metres or removal of the hedge.

Failure to comply with a remedial notice means the owner/occupier is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. Further if a remedial notice is not complied with the Act gives a local authority the power to enter onto the relevant land to carry out the required action and recover any expenses incurred.

The Act allows a right of appeal against a remedial notice or against the local authority's decision not to take action.

The new provisions for dealing with high hedges will offer a mechanism for those who until now have had very few remedies available to them. It remains to be seen, however, how involved local authorities will be prepared to become in what are essentially neighbour disputes.

Should you have any queries in relation to this topic please contact Danielle Drummond-Brassington on +44 207 367 2768 or on [email protected]