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Hedgeline's Response to the ODPM Consultation

On the Guidance Notes for LEA Officers who will administering the High Hedges Law


 

A summary of the main drift of some of our arguments is outlined below. Summary

The full version of our reply is printed below this.Full version

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Summary

We deeply appreciate what has been done and tender suggestions in the following subject areas,

Our full response (virtually complete) is set out below in due course.

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Hedgeline


Office of the Deputy Prime Minister

June 2004

Dear Mr Copeman,

High Hedges Consultation.

We submit herewith the considered views of the members of Hedgeline in response to this consultation. As you know, Hedgeline is the national organisation which represents the victims of high hedge abuse, and which has done so much to bring this important "quality of life" issue to the attention of local and central government. We represent over 4,500 members, and many thousands more hedge-victims, who visit our website, and consult us for advice and support. During the five years of existence of Hedgeline, our keyworkers have developed an immense awareness of the practical aspects of high hedge abuse, by dint of actual site inspections, and detailed case-studies. Consequently, we feel we are supremely well-qualified to comment on the practical application of proposed legislation and associated guidance.

We would like to express our appreciation of the thoroughness, with which your officials have approached this consultation, as is evidenced by the very detailed nature of "High Hedges Complaints, Prevention and Cure", and "High Hedges Consultation, Implementing Part 8 of the Anti-social Behaviour Act".

Our specific comments are as follows, using the paragraph references of the original documents; where we make no comment, you may assume that we accept the draft version.

High Hedges Complaints, Prevention and Cure.

1.6: Status of the Guide: We appreciate that the vast majority of local authorities will follow the policy advice of the ODPM, but do have concerns that, so long as the advice is not mandatory, the application of the law will vary in quality and efficiency across the country. Such inconsistency of application would be unfair to hedge victims. We would prefer to see the policy advice having the status of "Home Office Circulars to Police", which are treated in practice as having the force of law.

2.16 -2.18: Covenants: Our practical experience is that covenants are of extremely limited benefit, since they cannot be enforced without recourse to a civil court, and the costs thereof discourage enforcement of the covenant. The weakness of the covenant enforcement option is a strong indicator of the need for the much more accessible Anti-social Behaviour legislation.

3.5 — 3.7: Mediation: We accept that advice on the option of mediation services should be included, though we are not aware of any widespread success in this area. By contrast, we are aware of the forceful impact already made by the proposed ASB legislation, even before it becomes operative, in that many monster hedges have already been reduced in height, or removed, by previously intransigent hedge-growers. This practical experience indicates to us that the "hardcore" cases which have precipitated the legislation are much more likely to be resolved by the mere existence of an efficient complaint system, than by attempts at mediation. We are also convinced that efficient initial application nationally of the complaint system will cause a fairly dramatic reduction in complaints made after the first three years, as envisaged by ODPM. This will however only occur if the complaint system is firmly administered in its initial stages.

5.2 & 5.7: Hedge definition: We are pleased to see the advice that a line of trees or shrubs does not have to be a straight line. However, unless the status of the advice is more than optional, this important factor might be ignored by some local authorities, to the detriment of hedge-victims. This applies also to the provisions of 5.15 & 5.16 (barrier to access).

5.15 We think it very important that these words are included, ’This means not just a bar to physical access ‘but also access to a view or outlook’.

6.1 -6.5: Informal Action: Being aware that all councils will have limited staff and resources to deal with hedge complaints, we query the advice that a complaint form and leaflet should notautomatically be sent to enquirers. Following this consultation, the relevant leaflets and forms should be clear and informative, and it would be more efficient in terms of staff time, if an information pack were sent to all enquirers. It is mildly contradictory to advise, at 6.2, that "factual information only" be offered, while then advising, at 6.3, that discussion should take place. We have no doubt that council staff will utilise their normal courtesy in dealing with public enquiries, so see no need to preclude the issue of a full information pack.

6.9: Form of complaint: We feel that these requirements are too bureaucratic to be regarded as a "minimum" level of information. While they would be reasonable for a complaint being handled by a legal representative, the object of the legislation is to permit individual citizens to make complaint without recourse to expensive legal representation. The appropriate design of complaint information pack will make clear what level of information is desirable, but practical experience indicates that many elderly complainants would be daunted by the prospect of having to provide a location plan, and scaled photographs, at the preliminary stage. These two particular aspects of a complaint will in any case have to be verified by the council investigator on a site visit, so should not be regarded as essential preliminary information. Equally, the reference to "details of steps taken" should be replaced by "outline of steps taken". Whilst Hedgeline has always advised members to keep diary records of contacts made, and copies of letters sent, it would not be reasonable for a council to reject an initial complaint on the grounds that recorded "details" of approaches made were not available.

6.10: Model form of complaint: we should like to be consulted on the format of all model forms.

6.11: Copy of form to hedge-owner: We fail to see why it should be the duty of the complainant to copy documentation to the alleged offender. In no other area of criminal law is there an obligation for the victim to copy legal documentation to the alleged offender. That is surely the responsibility of the judicial authority, in this case the investigating local authority, which is also the potential prosecuting authority. One of the major factors underlying the need for legislation is that of perceived intimidation or aggression from the alleged offender. Though it is accepted that the victim must previously have voiced their complaint to the hedge-grower, and thus a formal complaint will be of no surprise to him/her, it is surely the function of the judicial authority to provide formal notice of the investigative procedure.

6.13-6.14; Maximum fee: We are aware that s.68(1)(b) permits a fee to be charged. We strongly recommend that a national maximum fee should be stipulated, and that this should be a notional figure. We strongly disagree with the premise that a fee should represent the actual cost to the council of officer time spent investigating the complaint. We repeat that it is iniquitous that a victim of perceived Anti-social Behaviour should have to pay a fee in order to make a complaint. In what other area of criminal law is there a precedent for such a procedure ? If a maximum fee level is set, then the council should be permitted to vary or refund the fee in certain circumstances. We suggest that where a fee is charged, and the complaint upheld, the cost of the fee should be charged to the offender.

6.23: Exchange of correspondence: we firmly recommend that evidence of one written request to abate the hedge nuisance is sufficient. In many cases there will have been no written reply, and this will be beyond the control of the complainant to alter.

6.24: Fresh correspondence: where there is clear evidence of an exchange of correspondence prior to the implementation date of the legislation, it is utterly unfair to require yet another approach from the victim to the offender after the implementation date. There has been adequate publicity surrounding this issue in the last five years, and more will undoubtedly follow around the time of implementation. It is unfair to place the onus of awareness of the criminal law solely on potential complainants. Hedge-growers can be presumed to read the papers too !

6.26: One letter will be quite sufficient to advise a hedge-grower that a complaint under new legislation is being considered. The only benefit to the hedge-victim of such an approach, in view of our comments at 6.24, is that it might save the cost of a complaint fee.

6.28: Postponement of investigation: We firmly reject this proposal. Where the criteria preceding a complaint are met, and the due fee is paid, the council should forthwith investigate. There is no case for the council to accept a fee for the investigation of a complaint, and then advise the complainant to go away and try and sort it out himself. Far too much leeway is provided for the alleged offender by a proposal such as this, to the detriment of the hedge-victim.

6.31: Example; This is not a good example of a vexatious complaint.

6.32: Refund: Whilst we argue against the concept of a fee to be charged in the first place, the sole reasonable justification we find for a fee is that it should discourage vexatious complaints. It would be iniquitous to collect a fee for a justified complaint, and keep it, whilst returning fees for vexatious complaints. That would hardly discourage vexatious complaints.

6.34: Site visit: We consider it imperative that a site visit be made in every case. The adverse impacts of high hedges cannot be adequately demonstrated by photograph.

6.37: Notice of complaint: (See 6.11 above). It should not be the responsibility of the complainant to notify the alleged offender.

6.44: Site visit: (see 6.34 above) a site visit should be arranged in every case.

6.54: Overlooking: Claims for privacy should be considered with great caution. In the context of suburban developments, claims for privacy at other than ground level are often unreasonable.

6.71: Winter Sunlight: We find the thrust of this paragraph most unhelpful, inferring as it does that winter sunshine is relatively unimportant. In fact the opposite is true; the lower the percentage of sunshine in winter, the more important it is that the sunshine is not obstructed by a high hedge. We therefore suggest that the paragraph be suitably amended.

6.72 : Winter sunlight: We suggest that the additional obstruction resulting from a hedge being above a minimum 2 metre height may be very significant, rather than minimal, whatever the aspect. We would wish to see 6.72 appropriately amended to incorporate the following:
"where no building or otherwise is present to obstruct the path of sunlight into ground floor windows,, consideration can be given for a hedge height that allows the maximum available sunlight, along with the solar energy thus afforded, into the main rooms of a house all the year round".
Paragraph 6.73 may need to be amended in accordance.

6.80: Factors other than light obstruction: This point needs much greater emphasis. We suggest a change in wording as follows: "It must be strongly emphasised that the BRE guidelines do not take account of factors beyond light obstruction and so do not produce general all-purpose recommended hedge heights".

6.82: Views of the sky: We feel that the following words should be added to this paragraph. 'Loss of view of the sky' must be considered, if it is a subject of complaint. From our experience it is likely to be a very common cause of complaint.

6.86: Hedges near to windows: Although views and light will be very important considerations for hedges close to windows (either to the front or to the side), other criteria may also have a bearing in these situations. We feel that the paragraph needs reconsideration and rewording.

6.95: Unrelated factors:We suggest the deletion of point 2, (causing worry, concern," etc.) This is arguably a most relevant factor in deciding adverse effect on the reasonable enjoyment of property. Point 5, (cutting the hedge too costly) should be very definitely excluded as a defence for growing an over-high hedge.

6.99: Decision factors: We recommend deletion of point 3 (reasons why no action should be taken). Once a complaint is found to be justified within the terms of the Act, we fail to see what reason might exist to preclude appropriate action, i.e. the issue of a remedial notice.

6.100 — 6.101 & 6.107: Non-issue of remedial notice: We recommend that these paragraphs be deleted, as they are superfluous. Where a complaint is upheld within the terms of the Act, the appropriate remedial notice should be issued. The appeal system built into the Act is adequate for dealing with borderline cases.

6.113-6.116: Time Limits: The absence in the Act of a time limit for investigating complaints is a defect, and not a benefit. The appeals system envisaged provides the possibility of lengthy delays in the enforcement of a remedial notice. If the teeth of the Act are not to be drawn completely, then there should definitely be a limit of time within which an investigation should be completed by the appropriate officer. Given that there will normally be only two parties to a dispute, that the terms of the Act are clear, and that a site visit will demonstrate the validity of the evidence proffered, there is no excuse for an investigation to take more than two or three weeks to fit in to a work schedule. We propose that a limit of (5) weeks be imposed for a decision to be made, starting from the date of acceptance of the registration fee (if any).

7.17: Compliance period: It is not the case that every hedge will contain nesting wild birds between March and August. It is therefore perfectly unreasonable to exclude those months from a compliance period. The last sentence of this paragraph should be amended to say "the compliance period may need to be set to avoid cutting …. Between March & August".

7.31: Costs: We agree that the costs of remedial action and the means of the hedge-owner to pay them are irrelevant to the issue of whether remedial action should be taken. This should be made explicit at point 7, so that the last line should amended to read "… however, not to be considered relevant considerations".

7.39: Hedges at 2 metres: Hedges, to be reduced to 2m, are a special case. We feel that sections 7.52 to 7.55’ should be expanded to cover what ongoing remedial action will be required when 2m is the height specified by the LA.

7.49 — 7.51: Specifying Action: Remedial action should be specified precisely, and not left vague. It is to be expected that hedge-owners will seek to evade or minimise the remedial action to be taken, so that action must be specific and unambiguous. In general this will simply require the appropriate maximum hedge height to be stipulated, and the time within which the work must be done. Therefore, the last sentence of 7.49 should be deleted.

Although the Act does not provide for conditions to be attached to remedial notices, we would think it not unreasonable for the remedial notice to suggest that work should be done to a reasonable standard.

8.5: Correcting errors procedure: It is essential that the complainant and the hedge-owner be notified in writing of any alteration to a remedial action, and this guidance should stipulate that.

8.10 — 8.13: Extension of Compliance Period: We strongly resist this provision, which would considerably undermine the value of a Remedial Notice. The Investigating Officer, having made a thorough investigation, will be aware of the general work and health situation of the hedge-owner, and can reflect this in the original Remedial Notice. Any difficulty in compliance can be dealt with by the Appeal procedure. The issue of compliance should be dealt with either by an Appeals Inspector, or by the Magistrates Court, and NOT by an individual case officer. We emphasise again that if the legislation is to prove effective, it must initially be enforced fairly rigidly. The provision of escape routes and delaying tactics, as envisaged by these paragraphs would be highly damaging to the status of the legislation.

8.23: Procedure: A site visit should be mandatory.

9.27: Appeals: A site visit should be mandatory.

9.37 — 9.38: Time frames: at 9.37 to 9.46, where the draft suggests time scales of 6 weeks and 9 weeks, we propose 4 weeks and 6 weeks should be substituted. We are deeply concerned that scope for unreasonable delay should not be built into the regulations.

10.10: Enforcement: these recommended steps should be mandatory.

10.13: Investigations: The provisions for an investigation and a site visit should be mandatory, and not optional, as is suggested.

10.18: Informal Action: We see no justification at all for the option of an "informal chat" with the owner of a hedge, who has failed to comply with the provisions of a remedial notice. The system of investigation, decision, and avenue of appeal is simple enough for all to understand. To provide for "informal chats" with what would be a blatant offender would do nothing but undermine the legislation.

10.26: Council Intervention: There must be a responsibility for the Local Authority to secure remedial action, if all else fails. To suggest that councils may evade that responsibility wholesale is again to undermine the whole purpose of the legislation.

 

High Hedges Consultation

Implementing part 8 of the Anti-social behaviour Act.

Q1: No. We strongly disagree with the premise that a fee should represent the actual cost to the council of officer time spent investigating the complaint. We repeat that it is iniquitous that a victim of perceived Anti-Social Behaviour should have to pay a fee in order to make a complaint. In what other area of criminal law is there a precedent for such a procedure ? If a maximum fee level is set, then the council should be permitted to vary or refund the fee in certain circumstances. We suggest that where a fee is charged, and the complaint upheld, the cost of the fee should be charged to the offender.

In respect of practical considerations, it has been envisaged from the outset that once the Law is working well the nuisance-hedge problem will diminish and with it most of the expense to local authorities. The imposition of excessively high fees at the outset would be counter-productive.

Q2.. We repeat that it is iniquitous to expect the victim of Anti-social behaviour to pay for his complaint to be investigated. The aim of the legislation is to protect the victim, not penalise him for daring to make a complaint.

Q3. Though we would prefer to see no fee at all, we propose an absolute maximum of 100, including VAT. There must also be provisions for the reduction of the fee for persons on low incomes etc.

Q4. Yes.

Q5. Yes.

Q6. Yes.

Q7. Yes.

Q8. We believe the Appeal process should be confined to the main parties only, each of which would have the option to call witness evidence from other interested parties.

Q9. We consider the proposed procedures to be reasonable, subject to confirmation that a site visit by the Appeal Inspector be mandatory, not optional. (see para.21)

Q10. All proposed actions are needed.

Q11. Where the draft suggests time scales of 6 weeks and 9 weeks, we propose 4 weeks and 6 weeks should be substituted. We are deeply concerned that scope for unreasonable delay should not be built into the regulations.

Q12. Yes.

Q13. Generally, yes. At para.6.52 we think that, since 2 metres is considered to be usually enough to ensure a reasonable level of privacy on a flat site, it would clarify matters a great deal and give a useful pointer for LEA officers if the following words were added "In situations where a 2m fence seems to be the common sense height for a garden screen, a 2 metre hedge would also be an appropriate height."

Q14. We believe all the proposed model notices would be useful, and would wish to be consulted on their format. We would like to see a model letter for victims to send to the grower before lodging a complaint under the high hedges law. This letter would request that the hedge be lowered so as to remove the nuisance and would apprise the grower of the possibility of an official complaint under the new legislation if agreement with the complainant cannot be reached.

Q15. We accept that the proposed process is reasonable, other than the proposal at 6.11 & 6.37 that the complainant should have copied his complaint to the alleged offender. We fail to see why it should be the duty of the complainant to copy documentation to the alleged offender. In no other area of criminal law is there an obligation for the victim to copy legal documentation to the alleged offender. That is surely the responsibility of the judicial authority, in this case the investigating local authority, which is also the potential prosecuting authority. One of the major factors underlying the need for legislation is that of perceived intimidation or aggression from the alleged offender. Though it is accepted that the victim must previously have voiced their complaint to the hedge-grower, and thus a formal complaint will be of no surprise to him/her, it is surely the function of the judicial authority to provide formal notice of the investigative procedure.

Q16. Yes.

Q17. No. There is no need or benefit in advertising the matter more widely.

Q18. In the main, the advice given is clear and comprehensive but we do have some serious reservations which we have outlined earlier in this response. We suggest that para.6.54 might safely be omitted.

Privacy from ground floor windows and gardens only is safeguarded (6.52 ). We suggest that any threat to privacy from a balcony or roof garden is in the same category as that from windows of higher stories and should not be considered.

Q19. None known.

Q20. We recommend deletion of point 3 at 6.99 (reasons why no action should be taken). Once a complaint is found to be justified within the terms of the Act, we fail to see what reason might exist to preclude appropriate action, i.e. the issue of a remedial notice.

Q21. We consider the approach sound, but believe that remedial action should be specified precisely, and not left vague. It is to be expected that hedge-owners will seek to evade or minimise the remedial action to be taken, therefore that action must be specific and unambiguous. In general this will simply require the appropriate maximum hedge height to be stipulated, and the time within which the work must be done. Therefore, the last sentence of 7.49 should be deleted.

Although the Act does not provide for conditions to be attached to remedial notices, we would think it not unreasonable for the remedial notice to suggest that work should be done to a reasonable standard.

Q22. We are most anxious that the scope for delaying tactics by the hedge-grower be minimised, and that therefore remedial notice deadlines be strictly adhered to.

Q23. We believe training events would be beneficial for LA enforcement officers.

Q24. In addition to the legislation and guidelines, the training event should include illustrations of actual cases, which demonstrate the very real "quality of life" issues raised by ostensibly simple high-hedge disputes.

Q25. The reported experiences of our 4000+ members indicate that few Local Authorities have kept records of high-hedge complaints, in the absence of legislation, and that therefore estimates of expected complaints will be unreliable. We recommend that, in the interests of making accurate future reviews of the legislation, LAs be strongly advised to keep records of complaints received about hedges which come outside the scope of this Law in its present form.

Q26. We are unable to comment authoritatively on the costings for public sector bodies, but can state confidently that the law can only be implemented effectively if the cost of complaint set for individual complainants is at an affordable level, which must certainly be less than 100.

Q27. Taking an all-round view, there are absolutely no benefits to the "do nothing" option.

Signed on behalf of the Hedgeline Executive.


 

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