What has happened so far
The Government have always taken these neighbourhood problems very seriously and, in November 1999, launched two new initiatives to help tackle nuisance hedges.
The Right Hedge for You 1
Consultation paper - High hedges: possible solutions 2
Consultation results
Over 3,000 people responded. The results showed that 94% of respondents believed that new laws were needed to control these hedges. This included 77% of local authorities. A new system to allow local authorities to determine complaints (option 4 in the consultation paper) was the clear favourite. 72% of respondents chose this option, including 67% of local authorities. However, authorities were more likely to want other measures, such as mediation, to be introduced alongside this legislation.
Government commitment to legislate
Some of the points of detail of the complaints system have yet to be settled. For instance, we want to think further about how the rules would be enforced. But we are committed to legislation, in England, as soon as Parliamentary time can be found.
We will also be consulting the National Assembly about whether these new laws should extend to Wales.
1 The leaflet and consultation paper are on the DETR website at http://www.detr.gov.uk/
When will new laws on high hedges be introduced?
There are several points of detail on which we need to do more work before legislation is ready to be presented to Parliament. As a result, we cannot say at this stage when the legislation will be introduced into Parliament or when the complaints system will be up and running. But we are committed to legislation - in England at least - as soon as there is space in the Parliamentary timetable.
Why are you not acting more quickly?
There's a ready vehicle in Baroness Gardner of Parkes' Private Member's Bill on nuisance hedges, that is already before the House. Why not support that?
How will the new laws improve things for people who suffer hedge problems?
What about the rights of hedge owners?
Will it be restrospective - ie deal with the problems caused by existing hedges?
Does this mean that people will have to get local authority permission before planting a high hedge?
Will there be a height limit for all hedges - like that for garden walls and fences?
Will the controls be limited to leylandii? What about individual trees, or groups of trees, that cause similar problems? Will local authorities be given extra resources to administer this complaints system? Why not just ban leylandii?
Will any new laws on high hedges mean that owners could be forced to cut back traditional countryside hedgerows? This could be damaging to their biodiversity.
What about the role of mediation? A lot of local authorities thought this should be introduced alongside legislation. HIGH HEDGES: EXISTING PROCEDURES
There are some procedures currently in place that might help to resolve disputes between neighbours concerning high hedges.
Neighbourly co-operation Mediation SUP> 2
Civil courts Easements of light Statutory Nuisance
It has been suggested that the statutory nuisance provisions in the Environmental Protection Act 1990 might provide a potential remedy for disputes over high hedges. Section 79(1)(a) of the Act says that premises in such a state as to be prejudicial to health or a nuisance, amount to a statutory nuisance. Experience in other kinds of cases, not involving hedges, suggests that - for something to be a statutory nuisance - there must be a direct risk of disease or illness. This may be difficult to prove as regards high hedges, as the direct impacts are not usually health-related. We are unaware of any successful statutory nuisance proceedings relating to high hedges.
Return to Main Report on the Promises of Legislation. Summer 2001
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Thousands of people's lives are being made a misery by ill-advised planting or lack of maintenance of garden hedges. Leyland cypress is often singled out for blame but is not the only culprit.
First, to help inform gardeners on how to choose the right hedge for their situation, DETR joined forces with the horticultural and landscape industries to produce a leaflet, setting out the alternatives to fast-growing species, such as Leyland cypress, and the upkeep necessary to make an attractive healthy hedge. The leaflet is available through garden centres and other sales outlets.
Secondly, to address existing nuisance hedge problems, DETR published a consultation paper seeking views on options for dealing with nuisance hedges. These were:
promoting existing procedures such as mediation;
improving advice and strengthening planning conditions;
through legislation, extending the right to light to include land as well as buildings;
introducing new tailor-made legislation.
The consultation showed there was overwhelming support for tougher controls. And so the Government announced on 10 August 2000 that we would work up legislation in England to allow local authorities to determine complaints about nuisance garden hedges. The authority would decide whether to require the hedge owner to remedy the problem by, for example, cutting back the hedge.
We do not underestimate the misery that thousands of people endure - day in, day out. They are, of course, looking for early relief. But it is important - for them - that we get this right. That means making sure that we have ironed out all the wrinkles before Parliament scrutinises our proposals. It will not help anyone if we rush into legislation that proves unworkable and so does not meet people's reasonable expectations.
Baroness Gardner of Parkes' Bill would add boundary hedges to the list of statutory nuisances in section 79 of the Environmental Protection Act 1990. The effect would be to give environmental health officers powers to investigate hedge problems and, where they are considered to constitute a statutory nuisance, to order the owner to take remedial action.
Because statutory nuisance is about issues of public health, the Government have serious concerns about whether the approach in this Bill will meet the expectations of those suffering from hedge problems. We think the better way forward is to work up new laws that are specifically designed to deal with this issue.
At the moment, if someone is in dispute with their neighbour about a hedge, the only way they can settle the matter is to go to court. The cost, time and effort involved - plus the uncertainty about what the outcome will be - has deterred people from pursuing such a course.
Taking their complaint to the local authority should be cheaper and quicker - and more accessible for everyone. While the result cannot be guaranteed, nevertheless people will have the assurance that all aspects of the case will be reviewed and considered fairly and impartially.
We would expect local authorities to take account of the views of the hedge owner as well as those of the complainant before reaching a decision on the case. Hedge owners will, therefore, have the opportunity to tell their side of the story and to have it considered impartially.
In a lot of cases, it will come down to a question of balance between preserving privacy, on the one hand, and safeguarding the amenity of neighbours on the other. These are the sort of judgements that local authorities are used to making, for instance in determining planning applications.
Yes, people will be able to complain to the local authority about hedges that are causing problems now.
But involving the local authority should be a last resort - only after people have tried to settle the matter amicably with their neighbour. We will be looking at how we build this into the system.
No. This is not like getting planning permission for tall boundary walls and fences. The proposed legislation would only come into play if a high hedge was causing problems and these could not be settled amicably. It would not apply to hedges where there is no dispute about them.
No. The proposed legislation will not introduce an arbitrary limit on the height to which garden hedges can be grown. What we are talking about is giving powers to local authorities to deal with hedge disputes impartially.
However, we are considering whether the complaints system should kick-in only if the hedge exceeds a specified minimum height.
We have not opted for a general restriction on the height of hedges because sometimes a tall hedge is a positive benefit. For example, it might screen something unsightly or block the view of, say, a busy road. Equally, it might act as a windbreak, protecting tender plants or crops.
It is unlikely that controls will be limited to leylandii because it is not the only culprit here. It could also be replaced in future by some equally fast-growing new hybrid - that is yet to be developed.
It will be important, however, that new laws do no more than tackle problem hedges. We would not, for instance, want to discourage the planting of suitable trees in gardens.
The main problems seem to be with tall, dense screens of foliage - whether as a hedge or a line of closely planted trees. That is what the legislation is likely to focus on. But we will think further about whether it should also to deal with complaints about individual trees, or groups of trees. This is one of the points of detail yet to be settled.
The right tree in the right place can, however, make a significant difference to the quality of the local environment and we would not want to do anything that discourages people from planting suitable trees.
We will follow the established procedures for assessing the financial burdens imposed on local authorities by new initiatives and for providing resources where appropriate.
In the consultation paper, we estimated that the costs to local authorities of administering a complaints system would be about £1 million over the first couple of years. We will be refining this as we firm up on the details of the legislation and in the light of the consultation responses.
Leylandii might be the villains in the press, but the letters we receive indicate they are not the only culprits. A ban would not, therefore, resolve the problem for a lot of people.
In addition, Leylandii can be magnificent single specimen trees in the right location. They also make an excellent hedge and screen if they are trimmed regularly. It would be wrong to deprive everyone of these benefits because some people do not look after them properly.
Our consultation paper on high hedges recognised that the main problems occur in residential areas and so new laws are likely to be restricted to garden hedges. They might need to cover hedges that are just the other side of garden boundaries but we are keen to avoid interfering with the legitimate use of hedging by agricultural and other industries.
Mediation has a good track record at resolving neighbour disputes. It also helps to open up channels of communication and so improve future neighbour relations. However, research suggests it has to be voluntary to stand any chance of success.
Mediation is unlikely, therefore, to be a compulsory element of the proposed system but we want to consider further just what part it might play in the process.
A hedge owner may not be aware of the effect it has on neighbours. A polite request to keep a hedge properly trimmed and maintained may often be all that is needed to resolve matters. The harmful effects of a high hedge can be felt by the hedge owner as much as by their neighbour, and both will benefit if they co-operate to keep a hedge properly maintained.
Where neighbours cannot agree between themselves, local mediation services can provide an effective remedy. If both parties are willing to reach an amicable solution, but differ over what that solution might be, mediation by an independent third party can help them reach an acceptable agreement. This is a quick, cheap and informal approach which has been successful in many disputes between neighbours involving high hedges. Often disagreements over a high hedge form part of a wider dispute and mediation aims to get at its root cause rather than focusing only on a single aspect, such as the hedge.
However, for mediation to be effective, it requires the good will of both parties. Where one or both sides are unwilling to reach an agreement, mediation is unlikely to resolve the dispute.
There are currently 150 groups, mainly comprising volunteers, providing community mediation services in England, Wales and Scotland. The majority of services are independent charities, with a small proportion attached to local authorities. Coverage is varied with some significant gaps, eg in the north of England and in Scotland. It is estimated that about one third of the population currently has access to mediation services. There is also a national umbrella group, Mediation UK, which can put people in touch with their local service .
Where co-operation and mediation have failed, the next step in the resolution of a private dispute is through the civil courts.
The small claims procedure allows people to pursue claims of up to £5,000 for loss or damage, by way of an informal hearing before a district judge, without needing costly legal representation. We are aware of a few cases of damage to property caused by hedges being brought before the small claims court. They were, however, settled by the parties before being heard by the court. There have been reports of people using this procedure successfully to reclaim the costs of cutting back to the boundary the overhanging branches of large neighbouring hedges, under their common law rights. These do not, of course, allow topping of the hedge to reduce its height.
For claims of up to £15,000 there is now a fast track procedure, where cases are heard within 30 weeks of allocation and managed by a judge who will ensure that parties adhere to strict timetables. This limits the amount of work to be done and thus costs involved.
Previously, the cost, time and effort involved in mounting a legal challenge made going to court an unattractive option for many private individuals with limited resources. In addition, although Michael Jones won the right to cut back the hedge his neighbour had planted (in the well publicised case of Stanton v Jones), the specific circumstances of his case mean that it did not set a general precedent on which others can rely. The lack of any certainty of a successful outcome, therefore, makes people unwilling to risk the legal costs involved if they lose the case. There is also the risk of a counter-claim from the hedge owner.
There is no general legal right to light. Easements of light are legal rights which attach to property. Where an easement of light exists, the property benefiting from the easement will be entitled to a certain amount of light to certain windows or openings. However, easements of light do not extend to people's gardens. One way of demonstrating that a property benefits from such an easement, is for a person to show (among other things) that the light in question has been enjoyed uninterrupted for at least 20 years.
The law relating to easements of light is for the most part contained in common-law, rather than in legislation. If natural light inside a building were seriously affected by the presence of a high hedge, the existence of an easement of light could be used as a basis for civil legal proceedings, with the usual remedy being an award of damages.
All in all, existing procedures have not proved effective in dealing with the problems caused by high hedges. The lack of a specific legal or administrative remedy means that, in most instances, people have no means of resolving the issue, leaving them to suffer the adverse effects of their neighbour's hedge.
2 Mediation UK, Alexander House, Telephone Avenue, Bristol, BS1 4BS, ( 0117-904 6661).
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