Complaint Refused by Merton Council
Any Council thinking of refusing a complaint citing any of the several grounds put forward by Merton Council and dealt with in this Judicial Review should study the informed summary of the Review quoted below and/or the judgement itself as it will then become clear that ALL BUT ONE of the grounds brought by Merton Council were dismissed by the Review Judge as wrong.
See summary below and link to the full judgement below that. (There is also a very interesting Appeal Decision )
Summary of the Judicial Review Decision:
The claimant (C) applied for judicial review of the defendant local authority's decision that four trees did not constitute a "high hedge" under the Anti-social Behaviour Act 2003 s.66(1). C's rear garden backed onto parkland belonging to the local authority. C complained to the local authority about four trees which were over two metres high at the edge of the parkland. The local authority's response was that the growth complained of was not a high hedge under s.66(1); there was "no growth in the essential two metre zone"; the trees were "individual trees forming an edge to woodland"; and there was "no overhang of the trees' canopy" onto C's property. C submitted that (1) the fact that "there was no growth in the essential two metre zone" was not the applicable test for identifying a high hedge under s.66(1); (2) denying that the growth was a high hedge because it was actually "individual trees forming an edge to woodland" amounted to an incorrect exception to s.66(1), because a row of trees did not cease to be a line simply because there were other trees behind them; (3) the local authority's reliance on the fact that there was "no overhang of the canopy" onto C's property was wrong in law because there was no statutory requirement for there to be such an overhang for s.66(1) to be engaged.
(1) The local authority's comment about the essential two metre zone amounted to it saying that the absence of foliage between ground level and two metres disqualified the trees from constituting a high hedge. Such an analysis was wrong in law: whilst it was true that foliage from ground level was a typical characteristic of what one would ordinarily think of as a hedge, the local authority was not merely concerned with the normal meaning but also with the definition under s.66(1). The fact that there was no foliage growth below two metres was not a legally good reason for finding that the growth was not a high hedge.
(2) In deciding whether a particular growth amounted to a line of trees under s.66 (1), it was open to the local authority to decide that it was not a high hedge by weighing up the alignment of the trees, their proximity to one another in the so-called line, and their relationship to other surrounding trees. In the instant case, the local authority's statement that the four trees were individual trees adequately explained that it thought that they did not form a line. Its comment that the trees formed an edge to woodland was a further elaboration of its opinion that the four trees did not constitute a line. The local authority had adequately concluded that the trees did not form a line, and that was a decision that it was entitled to reach.
(3) In referring to the overhang of the canopy, it was entirely unclear whether the local authority was considering issues of a barrier to light and access, which were relevant under s.66(1), or issues of amenity, which were not relevant.
(4) Accordingly, whilst the first and third comments complained of were wrong in law, the local authority was entitled to conclude that the trees did not constitute a high hedge because they did not form a line as required by s.66(1). Judge: Nicholas Paines Q.C.
Link to the full judgement
Appeal Decision, 2nd August, 2013
The Appeal, ref: APP/HH/12/1142, was dismissed but the Appeal Decision stresses that there is no reason, even after an unsuccessful complaint and appeal, why a case cannot be taken further if the circumstances change after a while.
It goes even further than this in its concluding paragraph, which we quote 10. It is clear that as result of the Regulations quoted at paragraph 5 above changes in circumstances since the District Council's decision, such as the growth of the hedge, cannot be a reason for my now issuing a Remedial Notice. I do consider, however, that it would be appropriate in the circumstances of this case that the Council revisits its original decision in the light of the change in circumstances.