The new legislation to prevent neighbour anti-social behaviour comes into force in April 1999. It comes within the 'The Crime and Disorder Act 1998'.

It centres round 'Antisocial Behaviour Orders', 'ASBO's, which are 'designed to allow people to live their lives free from fear and intimidation' and can be applied for if a neighbour has acted in such a way as to cause, 'harassment, alarm and distress'. ¹

Comments in the Department of the Environment's 'Leylandii Briefing Letter of September 1998', must be born in mind,-

'the orders are intended to be used for criminal or subcriminal activity, rather than neighbour disputes. Nevertheless, potentially they might provide a remedy in the more extreme cases where the planting of high trees and refusal to reduce their height are part of a malicious action against neighbours'.

A letter to Michael from the DETR (signed Andrew Colski) dated 1st Dec, 1999, and headed 'Leylandii and Other Nuisance Hedges', reinforces the fact that ASBOs can only be used where hedge nuisance is part of a wider, malicious campaign against others in the neighbourhood. This letter goes on to say,

'We note that you are collecting information preparatory to ABSOs coming into effect on 1st April 1990 Evidence of behaviour before that date can be used to support an application for an ABSO, but any order would only apply to behaviour which takes place after 1 April 1990'

'From April 1st, antisocial neighbours can be taken to court and punished. I say to the Police: 'use those powers,' and I say to the public, 'help the police make them work'.'

¹ Quotations from 'The Crime and Disorder Act 1998 A Practitioner's Guide', Curd and Ward, Jordans £24.95 and it is worth trying larger libraries.

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Councillor Sutter (Dudley) was advised by the Council's Legal Dept, in a letter dated 30th June 1998, that there was no case law to support conifers being treated as a statutory nuisance. (30th June 1998). The letter referred to a statement by the Chartered Institute of Environmental Health Officers that they doubted that a nuisance caused by conifers would amount to a statuory nuisance.

A letter from the Chartered Institute of Environmental Health Officers to Michael Jones' MP, Dr Jones, signed 'Howard Price' and dated, 29th July 1996, states,

It is established that for a nuisance at common law (which I imagine this case to be) to be considered a statutory nuisance, it must at least have some public health significance. I can see none here and accordingly concur with the view of my colleagues in Birmingham. For the same reasons, residents would not succeed in any prosecution brought under section 82 of the 1990 act.

Department of the Environment Replies to a Later Query about Statutory Nuisance. (Spring 1999)

Mr Matthews of Dorset wrote to the DETR for a definition of 'statutory nuisance' as referred to in the '1990 Environmental Protection Act',

The Department replied by first giving a reminder of the relevant section of the Act:-

'There are two distinct types of 'statutory nuisance'.These are:-

1. a nuisance prejudicial to public Health
2. (as the Courts have made clear) a common Law nuisance'

The DETR letter goes on to give a most explicit statement about the responsibility of local councils regarding hedge nuisance,

'In your case, you say the local authority have agreed that there is "justifiable objection to the loss of light caused by the cypresses" in front of your living room windows, You say they have admitted that there is a nuisance", but that they do not act in cases of common law or private nuisance. Section 80 is quite clear on this point. If a local authority is satisfied that a common law nuisance exists, the Act requires them to serve an abatement notice'.

Update There were reports in the winter 1998/1999 that some councils were worried that they were going to be called upon to serve abatement notices on statutory nuisance caused by a nuisance hedges but no Council has yet done so.July 2000

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It will include guidance on how to pass on practical information about the growth potential of the Leyland Cypress and about the work needed to maintain them as a hedge. It expects retailers to advise on the distress these hedges can cause to neighbours, and sometimes to the growers themselves and also about the number of costly disputes which have arisen from Leylandii hedges.

The code is conciliatory and seeks to persuade retailers that they will derive benefits from advising and selling alternative hedges as these willbring increased customer satisfaction. Retailers will be expected to advise on other catagories of hedge and their relative benefits.

The expectation is that the code will be implemented in September 1999.

Hedgeline's reaction is that the code may be useful in drawing attention to the problem and in isolating the true bullies, but that it is of no use at all to existing victims. Michael Jones original statement when the working party was first set up was 'Four members of Hedgeline have recently died under the shadow of enormous hedges and under the shadow of vitriolic disputes with neighbours. The emancipation of hedge victims is long overdue'.

The news release, 23rd Sept 98, from the Department of the Environment included comments from Mr Alan Meale, MP, Minister of the Environment.

'I appreciate this will provide little in the way of comfort to those caught in disputes about existing trees and hedges: we have not yet ruled out some form of intervention in those cases. We are considering carefully the issues involved and will announce our conclusions in due course.'

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We have had reports of large private commercial concerns of various kinds are taking their own initiatives.
 
These include newspaper reports of very large building firms, announcing their intention of putting a covenant in the deeds of all their new developments to prevent high hedges ever being grown on any of the properties.
 
Despite the specifis nature of the newspaper reports there is still confusion about exactly which companies have imposed covenants and other regulations. We would welcome detailed information.
 
A large building society has announced its intention of refusing mortgages on any properties where coniferous trees are an issue which are, or could cause dispute.

'The hedge problem is one that does urgently need to be addressed.'

A copy of the Society's letter has been sent to Hedgeline.

The Law Society's reference is,

PD/SD/232.BB.

Tel. 0121 320 5726. Fax 831 0170

Steven Durno.

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