Good hedges make good neighbours
Scotland is finally to have legislation enabling the control of nuisance high hedges, with local and central government being given the crucial decision-making powers
Any sage will tell you that good fences make good neighbours. The corollary of this proverbial wisdom is that bad fences make intractable litigation. As Lord Hoffmann put it, “Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent” (Alan Wibberly Building Ltd v Insley  UKHL 15).
A growing problem
It’s not just bad fences that make the blood boil: there has been a growing phenomenon of “hedge rage”. This is where a dispute over the height of a hedge spirals into antisocial or criminal behaviour.
Now, it is true that most people do not fly into a rage should their neighbour’s hedge become a little bit unruly. But in a lot of cases, the height of a neighbour’s hedge can cast a long shadow over neighbouring property – and neighbours’ lives. Consider that a leyland cypress tree (or “leylandii”), commonly used for fast-growing hedges, grows at the rate of one metre a year and, left untended, grows to the towering height of 30m, and you might appreciate the scale of the problem.
Hedge rage would seem to have been fuelled by two factors: the density of modern developments (which in turn spurs owners or occupiers to plant fast-growing hedges for privacy), and the lack of legal recourse. For the sad fact is that, without a servitude of light or prospect, an aggrieved neighbour has no legal remedy at present. Faced with this lacuna, many resort to self-help remedies instead.
Despite a promising start, the Scottish Parliament has also been cast into shadow by other legislatures in the British Isles. England & Wales have had high hedges legislation since 2003, the Isle of Man since 2005, and Northern Ireland since 2011.
That omission finally looks set to change. The High Hedges (Scotland) Bill, a member’s bill promulgated by Mark McDonald MSP, is currently progressing through Parliament. We have been here before, of course, with a Scottish Executive consultation paper in 2000, member’s bill proposals by former MSP Scott Barrie in 2002, 2003 and 2006, and a Scottish Government consultation in 2009. But this bill had wind in its sails. It passed stage 3 on 28 March and now goes forward for Royal Assent.
Root and branch reform
The new high hedge regime will be complaint-driven, rather than regulating the height of hedges across Scotland. The bill provides local authorities with the effective means of settling disputes over the effects of a high hedge. The applicant will, however, be expected to have taken “all reasonable steps” to resolve the dispute before applying to the local authority.
Any owner or occupier of domestic property who feels that a high hedge adversely affects the reasonable enjoyment of their property can apply to their local authority for a high hedge notice. A high hedge is defined as one which is wholly or mainly formed by a row of two or more trees or shrubs over two metres in height and which forms a barrier to light (but not to a view). This height restriction reflects the restriction for planning permission for any fence, wall, gate or other means of enclosure (unless the enclosure is facing a road, in which case it is one metre).
Late amendments were passed by Parliament that change the effect of the bill away from the simplicity of resolving disputes over fast-growing conifers. The restriction to evergreen or semi-evergreen hedges was removed at stage 3, meaning that beech hedges and rows of deciduous trees are now included. Further, a hedge will not be regarded as a barrier to light if it has gaps which significantly reduce its overall effect as a barrier to light at heights of two metres. The bill confers unusually wide powers on the Government to amend the definition of a high hedge by regulations, by adding or removing types of trees or shrubs, or by altering the height limit or the effect of a hedge as barrier to light.
Parliament has given local authorities maximum flexibility on fixing the costs of the application. The financial memorandum accompanying the bill makes it clear that the high hedge regime is to be cost neutral. Therefore there is no cap on the application fees local authorities can charge, but fees must not become a profit centre by exceeding the reasonable costs of the local authority in deciding the application. The estimate of fees in the financial memorandum ranges from £325 to £500 for the initial application.
When to take the axe
Once received, the application is filtered so that disputes that lack sufficient pre-application efforts at resolution or are frivolous or vexatious will be weeded out. Substantial applications are copied to every owner or occupier of the neighbouring property and they have 28 days to make representations. At the end of the period, the local authority must decide whether to uphold the application, taking into account the effect of the hedge on the amenity of the area and any cultural or historical significance that attaches to it. Biodiversity value is not a factor.
If the application is upheld, a high hedge notice will be issued by the local authority, specifying what remedial and preventative action is appropriate and the timescale for compliance, which is binding on the owner of the neighbouring property. A high hedge notice takes precedence over a tree preservation order but, unlike a TPO, it is not registered or recorded with the Keeper.
There will be a right of appeal to the Government in respect of the local authority’s decision that the high hedge adversely affects the reasonable enjoyment of domestic property and in respect of the remedial or preventative action to be taken, but not on the threshold issues of whether there have been sufficient pre-application attempts to resolve the dispute or whether the application is vexatious or frivolous.
Local authorities are handed the power to enter neighbouring property for the purposes of inspection and monitoring compliance, and the Government for determining any appeal.
By this stage, the costs to the local authority will be stacking up, with input from solicitors, estates surveyors and arborists. As mentioned above, in relation to fees for the application, the aim of the bill is to be cost neutral. The local authority will therefore seek to recover reasonable costs from the owner of the neighbouring property on the “loser pays” principle. The minister rejected a cap on fees when giving evidence to the committee, having regard to the recoverability of costs and the reasonableness rule for fees.
Any unpaid fees can be secured by the local authority recording a notice of liability for expenses in the Register of Sasines or the Land Register. This notice creates a several liability on any new owner along with the former owner, provided the notice is registered at least 14 days before the new owner acquires title to the neighbouring property, and will remain until discharged by the local authority. The Keeper is not required to determine whether the information in either the notice of liability for expenses or the notice of discharge is accurate before recording or registering it.
Everybody needs good neighbours
The aim of the bill is not to promote good hedges as such, but to promote good neighbours. It fills the legal lacuna by providing an effective means of dispute resolution in relation to high hedges for the most intractable cases, but the fact that there is finally a dispute resolution mechanism will provide leverage to warring neighbours to achieve a resolution. The bill’s aim is that the number of cases will diminish after the initial spike of the thousands of simmering disputes across Scotland awaiting this legislation. That the bill is now about to be enacted may already have an impact on parties’ intransigence.
Euan Sinclair, solicitor and author