There have been fewer applications to councils to invoke this law than was originally envisaged. This is partly owing to the fact that some growers are dealing with their problem hedges rather than become involved with the council. We do hear of satisfactory settlements, 'out of court'. Some of the hedges which have been cut by owners who did not wish to face the councils, are ones which have caused serious problems for a very long time. These have now vanished, to the delight of their victims.
But not all are so lucky and the law presents many issues which we would like to see addressed over the coming years.
Unfortunately, in the short term, there is little direct action which we can take to address these issues. What we have to do is look at the way councils implement the 'Hedge Law' and try to ensure that people get the best out of this Law as it stands. Taking a longer view, we are listing faults in need of remedy in the 'Hedge Law' and 'Government Guidance'. To help us to do this we are looking at appeal decisions. We currently give detailed advice to some of the victims who are contemplating an appeal and we receive details of every appeal decision which is made. We keep appropriate records
The implementation of the 'High Hedges Law'
Considerable time has now passed since the High Hedges legislation came into force. A large proportion of council decisions have been appealed against during this time, and we have recently seen some reasonably good appeal decisions that are fairly balanced on both sides.
Regrettably, the decision letters issued by local authorities still show much ignorance of the 'High Hedges Law' A great deal of this ignorance can be attributed to the fact that appeal decisions are not published and councils are not getting the feedback on appeal decisions which would help them to make more sensible decisions.
It should be born in mind that a third of appeal decisions result in a changed decision, so there is a one in three chance of overturning your council's decision on appeal.
Staging* is a normal process now when dealing with a very high hedge and care is now always taken by appeal inspectors to give a balance between the privacy requirements of the owner against the harm caused to the complainant by the hedge.
No progress has been made concerning 'overhanging branches'. Even our elderly victims (80 plus years) are being expected to deal with overhang themselves. Why
'overhang' is considered to have no bearing on a person's enjoyment of their garden and property is something we do not understand.
However, though the hedge may still be too high to trim the overhang, the grower must trim the top at the same height, and he must now, by law, carry out this work annually. It could well be worth considering the 'long game' and waiting to see how deep his pockets are when it comes to this annual expense.
This is an injustice we do hope to address at the review of this law in 2010 and in the meantime if any visitor to this site has been affected by a decision which ignores the burden of removing overhang we would ask to keep that decision letter, and a record of any how you did, or did not, deal with the overhang after the decision and of any costs involved in removing the branches or in taking the grower to court /court case history of. We will ask for these histories during 2009 to make our case for the review.
For those of you who have very high hedges, and found the decisions left the hedges still over five metres, we would like to hear from you in 2009 and would like to know whether these hedges are still in existence, or whether the owner's finally reduced them to heights they could manage.
* staging: This is an expedient brought in, in an attempt to deal with situations where a hedge might be killed by cutting to the height recommended on the council remedial notice. The hedge is reduced by a certain proportion each year and is given a chance to recover before further reduction. Also c.f. Councils are not allowed not to kill the hedge
Councils are not allowed to kill the hedge
If the offending hedge is mature and very big or if it has a lot of dead wood towards the bottom of the trunk its victims will have difficulty in getting it reduced sufficiently.
Whatever the height the council thinks the hedge should be reduced to under the terms of the Act, it will not order that reduction if it thinks there is any
possibility at all of the hedge being killed.
This is becauseAct states that hedges cannot be ordered to be removed . The Government Guidance Notes for the councils (section 6.24) states that ordering any reduction which might possibly kill the hedge is the same as ordering it to be removed.
This interpretation has its roots in the human rights legislation.
The Councils are able to use cutting in stages over more than one year to give the trees time to recover between reductions. Appeal decisions, in England, uphold the use of 'staged cutting' or allow one cut of between 50 and 66 percent, depending on the health of the hedge.
The first conviction under the 'High Hedges Law'
We have received news of the first ever conviction under the High Hedges Law for failure to comply with a remedial notice. The hedge owner was fined £320 with a further £325 court costs to be paid.
These fines are accompanied by a court order to reduce the hedge, in accordance with the remedial notice, within 28 days. Should the owner decide to ignore the order the court will then levy a fine of £50 per day until the hedge is reduced. This amounts to around £1,500 a month.
Something to be closely watched!
Your council's remedial notice should specify a height reduction which it considers would remedy the adverse effects to your amenity and a further height reduction which will take account of the hedge's regrowth? But if it has given these two heights as the same measurement you should really be concerned.
Most councils are taking the High Hedges Law very seriously and doing their best to make sure it works but unfortunately one or two are not giving any consideration to what will happen when the hedge begins to grow again.
In its remedial notice the council will give measurements for reduction of hedge height -
- It will specify a 'preventative action height'. The council has has decided that the hedge would cause undue problems if it grew above that height and has set this down as the height above which the hedge must never be allowed to grow. The grower would be breaking the law if he allowed the hedge to grow above this height.
- Most councils also specify an 'initial action' hedge height, a lower height, to which the hedge must be annually reduced. This is to allow for the fact that trees grow and is designed to prevent the hedge quickly growing up to the point where the problems recur.
Unfortunately one or two councils are not allowing a margin for regrowth and are just setting out the two measurements at the same level. This means that hedge will have grown to an illegal height very shortly after it is cut to the prescribed height.
Our advice for people who have been given one height only with no satisfactory explanation as to why regrowth has not been considered.
1) First make sure that you can . See notes below Methods of hedge measurement*
2) Then, when you are sure you know that the hedge is above the legal height, send a letter to your council. You will need to tell them how high the hedge is and
include details of how you arrived at that measurement.
NB. It cannot be stated enough that you must carry out communications either by email or in writing - you will need proof of what the Council did, or did not do, when it comes to enforcement. Verbal conversations are not enough. Contact Dot for advice (There will be no charge for an initial appraisal, though if we become further involved we may need reinbursement of our material expenses) email@example.com
Height enforcement in cases where no allowance has been made for regrowth
preliminary note - to be completed
If a complainant contacts the council in a very short time after the cutting to say that the hedge has already exceeded the 'preventative action height' and produces sufficiently clear evidence that the hedge has exceeded that height, the grower may still refuse to cut the hedge. He may say that he cut it to the height the council prescribed only a few months before.
In such cases there is a possibility that the council might be reluctant to enforce the cutting.
There is a 'Code for Crown Prosecutors' which has the status of Law and which might be used by a council to justify not prosecuting an offender against a remedial notice. In this code there are reasons given as to why a body, such as a council, should consider not prosecuting, even when an offence has been committed.
We list the most likely of these reasons to be used by a council to justify its not enforcing the High Hedges Law .
The hedge height is generally taken to be the height of the highest shoot.
For hedges up to 5m some people are fixing long bamboo poles to pruning poles or strapping bamboo poles together to make measuring poles. Some are using stiff measuring tapes. With these methods it is usually possible to measure down from a particular point and up from the same point and to add the two heights together.
To make a convincing case for the local authority you could use two poles and perhaps mark them in bright paint, or otherwise, at 1M intervals. Once these poles are
in the ground in front of the hedge, string builders tape (rather like police tape round a crime scene) between the two poles. Tighten the tape to show a line across the
hedge at the 'preventative action hedge height' and to indicate how far over this height the hedge is! An photograph illustrating this method is given on a separate
2 pole measuring method
Others are measuring against the bricks on the side of a house.
NB. It is always best to get a second person to stand back and check that you are measuring to the right places.
There is a more sophisticated method of estimating hedge height yourself.
Take a straight stick and stand some distance away from the hedge. Hold the stick vertically at arms length (get someone else to check it is vertical). Keeping the stick vertical, hold it so the top of the stick is aligned with the top of the hedge and the top of your fist is aligned with the base of the hedge. Then the height of the hedge is given by the horizontal distance between you and the hedge trunk, multiplied by the length of the stick above your fist, divided by the horizontal distance between your eye and the stick (get your assistant to measure this).
See "Hedge Height and Light Loss" , Annex 1 from which this information is taken, and which provides a diagram. http://www.communities.gov.uk/planningandbuilding/planning/treeshighhedges/ highhedges/
The surest way of getting a convincing measurement is to obtain the services of a professional tree surgeon or chartered surveyor to visit your property with a
'clinometer' and measure the hedge and work out how it relates to the the 'preventative action hedge height'. Try to find a static physical point to relate the hedge
height to so it is possible to know that when it exceeds that point, it is over the preventative height.
If you employ a professional, ask him for a letter stating the height of the hedge, how he discovered it (i.e. clinometer) and where he considers the static physical point is which will prove the height. He should then include this information in a letter and you will be able to enclose copy of this letter when writing to your council.
There are serious problems for complainants in Wales. Hedge victims living in Wales, who intend to make use of the 'High Hedges Law' should first contact Dot, firstname.lastname@example.org. (There will be no charge for an initial appraisal of your case)
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