Advice offered before the implementation of the 'High Hedges Law' and intended for use prior to November 2003
At later dates please see homepage
Hedgeline workers are all volunteers and there is nothing at all in it for us except hard work and the satisfaction of seeing the new legislation steadily becoming more of a realistic probability,
We ask you to send an S.A.E. to the address given on our businessline, 0870 24 00 627. You will be sent a welcome pack, and the telephone number of a local organiser, to whom you can talk about your problem. Our annual subscription is £5, or less for people on a very low income. We need you to join us because the larger we are, the more powerful we will be as a lobby group.
|
Reclaiming cost of 'cutting back' through the Small Claims Court. | |
Topping the hedge is illegal and may land you in court, and having to pay compensation and a colossal expenses claim. This course of action is not recommended.
Dealing with The Neighbour.
As you have no rights to control the situation, your best course is, first of all to try and remain friendly, to appeal gently to your neighbour's sense of fair play and to ask for his help. Be firm in explaining your problem, but not confrontational or aggressive. If you antagonise your neighbour he can, quite legally grow the hedge to enormous heights, just to spite you.
Unfortunately some people have neighbours who will do this anyway, because they enjoy exerting power and the hedge gives them a means of doing so.
If you cannot get anywhere with friendly appeals over a long period, you can try putting
your case more firmly. This occasionally works, but try to keep to relevant facts.
Never become personal or abusive as this will produce a similar reaction in your
neighbour. Remember he has all the real power.
You could mention to your neighbour that failure to keep the hedge suitably maintained would be almost certain to result in the invalidation of the third party damage cover, which most house insurance policies include. This means the responsibility for paying for any damage to your property, would be his own, and not his insurance company's. (Information from Mr Hooker, Chief Surveyor of 'The Subsidence Claims Advisory Bureau', - 01424 733727).
If you are still left with a problem hedge and can evoke no response from your neighbour, continue to avoid taking your neighbour to Court unless your circumstances render this absolutely necessary. Legal costs are enormous; often thousands and thousands of pounds. Cases can go on for years and can put the contestants into a state of prolonged anxiety, often taking over their whole lives.
You can ask for your MP on the number, - 0207 219 3000 Let the Environmental Health Department of your Local Council know. It is also worth contacting the Planning Department, as the Government sometimes contacts them to find out the extent of the problem in the area.
Return to Contents of this Page |
Action You Can Take if You Have A Nuisance Hedge, an Unsympathetic Neighbour and a Long-Term Entrenched Problem.
In the case of Subsidence.
If cracks are appearing in your walls, spreading diagonally out from corners of windows
and you think that your neighbour's tree-roots are causing subsidence, then contact
your insurance company for advice. You may be able to persuade your insurance company to take your neighbour to court or you may be able to make use of any cover for legal
costs which your policy provides. It must be born in mind that the cause of subsidence
and damage to drains may be fairly clear, but still very difficult to prove. This makes
insurance companies shy of legal action.
Mediation UK
This is a channel sometimes recommended to hedge victims. It is not a law court of any kind and the idea is to allow the parties in dispute to state their cases in front of a disinterested professional third party who will help them come to some suitable compromise. It has not yet proved of any use in the case of hedge-bullies, as it is only neighbours with a conscience, who will volunteer to participate. Contact them at, -
Alexander House,
Telephone Avenue,
Bristol BS1 4BS.
Tel. 0117 9046661.
Trying out the Statutary Nuisance Law
If you have a really monster hedge, of thirty feet or more, and your council says
there is nothing it can do to help you, you can try to force your Council to act
on your behalf.
No-one has tried this yet, but for anyone with both a stomach for a fight and a severe
hedge problem this is surely worth a go. The aim is to get a council prosecuted
at public expense, so there can be no personal costs involved. 'Any premises in such
a state as to be prejudicial to health or a nuisance', under the Environmental Protection
Act 1990 section 79, constitute a statutory nuisance. This means that a nuisance hedge
is a public nuisance, and, as such, the responsibility of the Council.
Members have received letters from the Dept. Environment, Transport and Regions advising
them to take the Council to Court for failure to act on their behalf. Some councils
are seeing the possibility of this kind of action being taken and are worried.
If your council refuses to take action, go to the local magistrates court. Ask for
an order under section 82 of the Environmental Protection Act 1990, to force your
council to declare your hedge a statutory nuisance, and persist. The Ministry has
implied to Michael Jones that the court has no choice, but to issue this order. Take the order
to the police and the Council Crown Prosecution Service and ask them to prosecute
your council for not acting on your behalf.
Contact Michael Jones (address and tel. below) if you are interested in following this path. It will benefit our campaign greatly, whichever way your particular council and local police decide to act.
We now know of one member who was successful
in the Small Claims Court: in the other cases we know of the neighbours have backed down at the summons stage.
One of our members took a neighbour to the Small Claims
Court. Her claim was for compensation for damage to her fence by his hedging trees.
On the eve of the hearing, her neighbour gave in, cut the hedge right down and paid
her expenses. He obviously expected her to win.
One member took her neighbour to the Small Claims Court and the neighbour (who turned out to be a development company, as the property was rented) filed a counter claim. The Claim was subsequently withdrawn and the property company agreed to make good all damage the trees had caused and fell the trees at its own expense.(October/November 1998)
Similar reports of such out of Court settlements have come in since we received these two.
This is very encouraging but do consider the possibility of counter claims before going ahead with the Small Claims' Court, and also the fact that where damage is involved Your neighbour's expert witnesses must be paid for if you lose.
The Small Claims Court was set up to allow people to represent themselves in court,
so that costs could not escalate to enormous figures. You do not
need to hire a solicitor, or pay for your opponent's solicitor. There is a chance that, if the case becomes too complicated it may be shifted to the ordinary courts. If matters did get to this stage, you would probably be advised to back out. The detailed
explanatory brochures sent out by local courts, make a clearly worded claim that proceedings can be stopped at any stage. There will be a requirement for you to pay for the expenses of the grower's expert witnesses, if you stop the case
(This advice was put out on the basis of the Small Claims Court as it was before the changes in April 2000, so read the new brochures carefully.
There is a fixed fee, which depends on how much compensation is being claimed, e.g.
£60 for £1,000 claimed, plus tax if you win. You have to fund any witnesses. There
may also be a sheriff's fee, payable to have your money collected, if it is not forthcoming, but all expenses can be reclaimed if you win. The court can even enforce the money
being stopped out of your opponent's earnings, if he loses. (Do not take anyone on,
in these courts, who has no money).
A comprehensive explanation of all matters concerning the Small Claims Court is obtainable from your local law courts. (N.B. The documentation changed on April 1st OO. The Small Claims Court is now absorbed into a three tier system of legal action. We do not believe the set-up has changed materially but read the leaflets. There are quite substantial fees now.)
The Small Claims Court is mainly used to make monetary claims, so reclaiming the costs of professional cutting-back of overhang would seem applicable. ( remeber that you could be liable if you kill the rest of their hedge/tree.) You could say to your neighbour, "Remove the trespass of your roots and branches from my property or I will have them removed, and give you the bill." You must not risk going beyond the boundary, so you must know exactly where it is. Contesting boundaries in court is very expensive, and the outcome is never certain and goes much beyond claiming the cost of cutiing back of branches to aknown boundary. The branches and roots are legally your neighbour's property so offer him the alternative of having them back, or paying for disposal.
The free solicitor, available by appointment, at the citizen's advice bureau would supply advice on which claims are appropriate to these courts. (Tree damage to buildings and drains is difficult to prove, insurance companies often sidestep the issue, and a claim over deprivation of light, requires loss of at least 50% of measurable light, and has just about always failed in private law suits in recent years).
Return to Contents of this Page |
Reclaiming the Costs of Cutting Back Trespassing Roots and Branches
Owing to the efforts of our Leicester Area Organiser, we have just received details of a hedge victim taking her neighbour to the Small Claims Court and winning her claim for the expenses of cutting back his hedge. The hearing took place about five years ago. This is the first record we have of a member actual taking a hedge owner to Court and winning. All the records we have are of members' cases which have been won and settled out of Court.
The advice which has filtered through from lawyers that there is a basis in Law for it being a neighbour's responsibility to remove his trespassing branches and roots is well founded.
Joan had a 42 foot hedge at 27 feet but she and her husband were not young or fit enough to cut it back. Joan read a popular Law book called 'Know your Rights' which told her she had the legal right to reclaim, by going to the Small Claims Court, the expense of cutting off the overhanging branches. She went for a free half hour's advice from a solicitor, had him write a letter and notice was given of her intention to sue for costs. After the notice had elapsed she had the overhanging branches cut and sent the Bill, which was not paid in the time given. She then took the neighbour to the Small Claims Court and won the costs of the hedge pruning. The money was paid by her neighbour the next day and he voluntarily cut the hedge down to 13 feet.
Her hedge is growing again and she also has a problem in her front garden. She tells me that she is looking at the new law which came out on April 1st - ASBOs.
Hedgeline's plan of action, March 1999.
We warn members not to embark on this route unless they have tried all other ways of getting their neighbours to be reasonable, and to take copies of all letters and keep records of conversations.
1. Get three quotes for removal of overhanging branches and/or invading roots.
2. Give you neighbour notice of your intention to cut overhanging branches or roots and reclaim costs from him. Keep originals and send copies to your neighbour. I would get a witness to the putting of the letter through his/her door. Do this at least twice. Give the cutting date and insist that you will need cash next day. If the police call when contractors are there, insist that you are within your legal rights and show the letter of notice to your neighbour. Pay the contractor and keep the receipt.
3. Small Claim's Court forms are available from the Local County Court. Fill in the form. Let your neighbour have a copy of this and the contractor's receipt. Ask for money after three days. If it does not come in a week, send off your completed form. (There is a fee at this stage, Please see leaflets from County Courts). If you win he must pay your inital fee and cost of cutting up to £5,000. (Small Claims Court only covers claims up to this figure) You will encounter only a judge in plain clothes and you do not need a solicitor. Neither party can claim any legal expenses but witnesses must be paid for. Give him no grounds for a counter-claim. Make sure you have witnesses that you do not go over the boundary and let him know you have have witnesses to this.
Complications
The Small Claims Court route for reclaiming the cost of cutting back overhang is not now proving quite
straightforward.
We are hearing reports of counter claims. One very old lady from Leicester (referred to above), our first ever known small claims success, claimed the costs of cutting back a second time but was
accused of cooking the books regarding her first claim The small claims judge
referred the case to a higher court so she withdrew.
Another member, when she claimed back the costs of cutting, was told she
would be taken to court for harassment if her claim was unsuccessful, so she
is hesitating.
Return to Contents of this Page |
A recent House of Lords ruling has clarified the Law on damage by trees, and if there is any chance that your property could, in the future, be damaged by roots or branches, it is very much in your interest to give notice.
For details see Letter of Notice
Return to Contents of this Page ARCHIVE INDEX - Records Prior to Legislation
We believe that the Small Claims Court is essentially the same, but the documentation and some details changed at the beginning of April 2000 when the Woolf reforms were instituted. The fees have certainly increased. The leaflets are obtainable from the county courts, and are clear and easy to understand. For complications which have appeared, see below.
Let him know that you intend to have witnesses to the fact that you do not go over the boundary at the cutting and let him know you will have witnesses. Make sure you have witnesses. A refinement would be to invite your neighbour to the cutting. He will probably not come but it will then be very difficult for him to claim that you have cut a couple of twigs over the boundary.
At this point you can still easily reconsider and withdraw and may wish to stop here.
Michael Jones and Clare Hinchliffe.
INDEX PAGES
We wish to give to hedge victims all the help we possibly can. We are basing this advice on our own experience and on that of other members of the group but we must make it clear that we are not legal experts, and that no member of Hedgeline can take any responsibility for any misunderstanding or adverse consequence, of whatever kind, or however caused, which may arise from the use of the contents of this website.
This page was written and constructed, and is maintained by Clare.
Created on a Mac
Copyright Clare, Hedgeline.