STATES OF JERSEY
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HIGH HEDGES (Jersey) Law 200-
Lodged au Greffe on XXXX 2007
by the Minister for Planning and Environment
STATES GREFFE
REPORT
Introduction
Where problem high hedges exist they can seriously affect people’s lives. They can deprive people’s homes of sunlight and daylight and make gardens dank and miserable if they are not properly managed. At present there is little that those affected by high hedges can do if their neighbour is unwilling to address the situation.
The Minister for Planning and Environment believes that this is wrong and is of the view that government should support the introduction of a new law which will enable this problem to be tackled.
A new draft law, the subject of this report, has been prepared which strikes a balance between encouraging people to act responsibly in managing high hedges and the need for government to intervene. The draft law attempts to provide a framework within which serious problems can be addressed together with powers to require their resolution.
Need for legislation
Just as the right hedge can be an ideal garden boundary, the wrong hedge may bring problems. Hedges that are not suitable for their location or that are not properly maintained can cause difficulties for neighbouring property. Problems can arise because people do not realise just how high and how quickly various hedging plants can grow and what they might have to do to maintain them properly. A well-maintained hedge can also become neglected and overgrown when ownership changes. The commonest concern about high hedges is the perceived reduction in daylight and sunlight to neighbour’s homes and gardens.
Where neighbours do not co-operate, there is little that a person affected by a high hedge can do to obtain relief. There are some legal obligations on landowners in Jersey to maintain hedges – such as trimming branches which grow over the land of a neighbour – but there is no specific law that can deal with the issue of hedges that are considered to be too high. There is a legal provision, dating back to 1771, which might be used to control fully grown trees in certain limited circumstances but which would not generally apply to the control of high hedges.
Legal powers have been introduced in England and Wales to allow people to take a complaint about a neighbour’s evergreen hedge to their local authority. The role of the local authority is to see if the hedge is unreasonably affecting someone’s property. If it is, they can set out what the hedge owner has to do to remedy the problem.
This is an issue that does affect people in Jersey and there has been growing support for the introduction of legal provisions to enable the matter to be addressed. Work has been undertaken to identify the most appropriate legal vehicle to enable this to happen and the preparation of the draft law is the outcome of this.
The scale of the problem is not considered to be hugely significant in an Island context – the Planning and Environment Department has been contacted by about 100 people in the course of this work being undertaken who are believed to be affected by this issue - but where is does exist, it can seriously harm people’s quality of life for which there is no legal redress presently. The Minister for Planning and Environment is proposing that a new law be introduced to enable this problem to be tackled in the Island.
Overview of the draft law
The draft law creates a new procedure for dealing with complaints about high hedges, to be administered by the Planning and Environment Department on behalf of the Minister.
Complaining to the department about a high hedge would be a last resort. People should have tried to solve their hedge problems by negotiation with their neighbours before approaching the Planning and Environment Department. If they haven’t their complaint could be rejected.
What complaints can be considered?
If someone could not settle their hedge dispute amicably, they would be able to take their complaint to the Planning and Environment Department provided that:
· the hedge in question was formed wholly or predominantly by a line of two or more evergreen or semi-evergreen trees or shrubs;
· it was over two metres high;
· the hedge acted, to some degree, as a barrier to light; and
· because of its height, it was adversely affecting the complainant’s reasonable enjoyment of their home or garden.
How would complaints be dealt with?
The Planning and Environment Department would be able to charge a fee, to be paid by the person bringing the complaint.
In each case, the Minister for Planning and Environment would decide, in the first place, whether the height of the hedge was adversely affecting the complainant’s reasonable enjoyment of their property by virtue of its affect on light. If so, the Minister would then consider what, if any, action should be taken to the hedge in order to remedy the adverse effect and to prevent it happening again.
In reaching a decision, the Minister for Planning and Environment would take into account all relevant factors, including the comments of the hedge owner and the contribution of the hedge to the wider amenity of the area.
The Minister for Planning and Environment will publish and employ guidelines, based on the research undertaken by the Building Research Establishment on behalf of the UK Government[1], to set out how the impact of a high hedge upon a property will be determined.
Remedies
If the Minister decided that action should be taken to resolve the complaint, the Planning and Environment Department would issue a formal notice setting out what must be done and by when. This could well include long-term maintenance of the hedge at a lower height, but could not involve reducing the height of the hedge below two metres, or the hedge’s removal.
This would be known as a ‘remedial notice’. It would be binding not only on whoever was the owner or occupier of the land where the hedge was situated at the time the notice was issued but also on anyone who subsequently bought or lived in the property.
Appeals
Both the hedge owners and complainants would have rights of appeal against the Minister for Planning and Environment’s decision. Appeals would have to be made to the Royal Court within 28 days of finding out the Minister’s decision.
Enforcement
Failure to comply with a remedial notice will be an offence that, on conviction, carries a fine. If the offender subsequently fails to carry out the required work, which could be within a set period of time, they could be convicted of another offence.
The Minister for Planning and Environment would also have powers to authorise the work to be undertaken by someone else and to recover costs from the hedge owner. The Minister would be able to use these powers whether or not the criminal offence was pursued.
Consultation and amendment
Comments on the draft law were invited between November 2005 and January 2006. The greatest weight of comment received concerned the need for legislation to be introduced from those adversely affected by high hedges.
The justification for the levying of a fee for the submission of an application to the Planning and Environment Department and the potential fee level was also challenged in the consultation response: this is examined as part of the regulatory impact (below).
The view has been expressed that the occupants of new dwellings adjacent to a high hedge should not be able to submit a complaint on the grounds that the hedge has been there longer than they or their property. The history of the hedge or a dwelling house is not, however, relevant to the question that the Minister has to decide – which is about the impact of the hedge on the complainant’s reasonable enjoyment of their property. In making a decision the Minister has to have regard for the privacy of hedge owners and the contribution of any hedge to the amenity of the area: the Minister has indicated that the privacy of hedge-owners will be given due weight in his consideration of applications.
Earlier drafts of the law exempted Crown land from some of the provisions of the draft law. This was anomalous when considered in relation to the new Planning and Building (Jersey) Law 2002 and the legislation relating to high hedges in England and Wales: on this basis, the draft law has been amended to extend all of the provisions of the draft law to the Crown, with the exception of criminal liability.
Regulatory impact
The effect of the draft law on business is expected to be minimal. The main costs of introducing new legislation would fall on the Planning and Environment Department, which would administer the complaints system, and the Royal Court, which would administer the appeals process. The level of work will be related to the number of problematic high hedges which cannot be resolved through negotiation. It is expected that there will be an initial backlog of existing problem cases to deal with and that, thereafter, the case load should fall to a relatively low level.
The law allows for the costs of dealing with the complaints system for high hedges to be met predominantly through fees paid by complainants. The justification for charging a fee is that the States do not presently provide this service and, therefore, there is a need to pay for it. Some comment received from consultation on the draft law also suggested that it was unfair for the applicant – the ‘victim’ of the high hedge – to be required to pay the fee. There are, however, several reasons for requiring the applicant to pay a fee, as follows:
· it is common practice for the States to charge a fee for a service which is likely to benefit an individual (in this instance, the complainant) rather than the community in general;
· payment of a fee will encourage people to resolve disputes amicably, making sure that the involvement of the government is a last resort;
· a fee helps to deter frivolous or vexatious complaints.
The draft law enables the Minister to prescribe the level of fees by Order. Fees would be used to fund the provision of the service as the Planning and Environment Department will not receive any other additional resources to undertake this work. The level of fee would need to be sufficient to cover the cost of dealing with applications (in England, the average level of fee is £345; the highest is £650 and seven local authorities have chosen not to charge any fees. It is important to note, however, that the UK Government will have taken a view on what portion of the costs to local authorities of administering the legislation should be provided through additional revenue support grants to UK councils).
The cost of dealing with applications will involve a survey of the high hedge and its physical relationship with affected property, including the height and length of the hedge; the area of any garden; orientation; distance from boundary; impact of any change in levels; distance from windows; and height of windows[2]. It is proposed that the Planning and Environment Department would engage the services of a qualified surveying practice to provide this information. Once this detailed information is available, the application would then require assessment by a planner with the necessary skills for assessing the impact of the hedge on the amenity of neighbours and the value of trees and hedges for the amenity of an area. All of the survey information and planning assessment would then form the basis of a report to the Minister to enable the application to be determined.
The Minister will need to set the level of fee to recover as much of the cost of this work as is deemed appropriate and reasonable. The draft law also confers powers upon the Minister to waive fees where he considers it appropriate to do so.
European Convention on Human Rights
Article 16 of the Human Rights (Jersey) Law 2000 requires the Minister in charge of a Projet de Loi to make a statement about the compatibility of the provisions of the Projet with the Convention rights (as defined by Article 1 of the Law). The Minister for Planning and Environment made the following statement –
In the view of the Minister for Planning and Environment the provisions of the High Hedges (Jersey) Law 200- are compatible with the Convention Rights.
[1] Office of the Deputy Prime Minister (March 2004) Hedge height and light loss. See http://www.communities.gov.uk/index.asp?id=1127869
[2] See Annex 3: spreadsheet to calculate action hedge height in Hedge height and light loss, previously cited
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