Draft High Hedges (Jersey) Law 200-

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A decision made (01.08.06) to approve the Draft High Hedges (Jersey) Law 200-

Subject:	High Hedges (Jersey) Law 200- : response to consultation
Decision Reference:	MD-PE-2006-0093	Exempt clause(s):		None
Type of Report (oral or written):	Written	Person Giving Report (if oral):		Kevin Pilley: Assistant Director (Policy and Projects)
Telephone or e-mail meeting	n/a	Report File ref:		1/05/02/04
Written Report Title:	High Hedges (Jersey) Law 200- : response to consultation	Written report – Author:		Kevin Pilley: Assistant Director (Policy and Projects)
Decision(s): The Minister for Planning and Environment; 1. Approved the High Hedges (Jersey) Law 200- (Version 10 – 30th November 2005) as a basis for referral to the Law Officer’s Department and subsequently the States; and 2. Authorised the Assistant Director of Planning to consider the advice awaited from the Law Draftsman relative to Article 23 and the application of the provisions of the draft law to Crown land, and to make the necessary amendments, where appropriate.
Reason(s) for decision: 1. Due consideration has been given to the representations made which are not considered by the Minister to be of sufficient weight to amend the draft law and its constituent articles; and 2. Having considered the specifics of the matter, the Minister is content for the application of Articles 8 and 11 and their provisions to Crown land in the draft Law to be determined by officers, having regard to the advice of the Law Draftsman.
Action required: 1. The Assistant Director of Planning to liaise with the Law Draftsman with regard to the application of Articles 8 and 11 to Crown land; 2. Subject to the outcome of 1., the matter to be referred to the Law Officers Department for; a. an assessment of compliance with Human Rights; b. a determination of the level of fines; c. referral to the Receiver General’s Office, and possibly the Lord Chancellor’s Department, for consideration of the implications for Crown land; 3. On receipt of the further advice of the Law Officer’s Department, to bring the matter back before the Minister in order that it might be lodged in the States.
Signature: (Minister/ Assistant Minister)			Date of Decision:

Draft High Hedges (Jersey) Law 200-

High Hedges (Jersey) Law 200-

REPORT

Explanatory Note

This Law will enable the Minister for Planning and Environment to take action in respect of a complaint made to him or her by an owner or occupier of domestic or residential property that alleges that the reasonable enjoyment of the property for domestic or residential purposes is being adversely affected by a high hedge situated on land owned or occupied by another person.

Article 1 provides special meanings for certain terms used in the Law.

Article 2 defines “domestic property”.

Article 3 defines “residential property”.

Article 4 defines “high hedge”.

Article 5 defines “complaints”.

Article 6 sets out what the Minister must do on receipt of a complaint.

Article 7 sets out what the Minister must do if the Minister determines that the allegation in the complaint is justified. In particular it requires the Minister to issue a remedial notice specifying what must be done to the hedge.

Article 8 allows a person authorized by the Minister to enter land to check a complaint or to check if required work has been carried out.

Article 9 allows the Minister to withdraw a remedial notice and, if appropriate, to issue an amended one.

Article 10 makes it an offence not to comply with the requirements of a remedial notice.

Article 11 allows the Minister to undertake what is required to be done by virtue of a remedial notice if the person upon whose land the hedge is growing fails to do so. The Minister’s costs of doing so can be recovered from that person.

Article 12 provides for appeals against a determination by the Minister that a hedge is not causing problems. The appeal is to the Royal Court.

Article 13 provides, in the same way, for appeals against a determination by the Minister that a hedge is causing problems.

Article 14 will allow a person to be represented at an appeal before the Royal Court by a person who need not be legally qualified.

Article 15 allows Rules of Court to be made in respect of appeals made under Articles 12 and 13.

Article 16 makes it clear that a person is not entitled to compensation for any action taken by the Minister under the Law.

Article 17 provides that where the action required to be taken by a remedial notice would require permission under another Law that permission is to be taken to have been granted so long as the conditions of the notice are complied with.

Article 18 requires the Minister to keep a register of remedial notices that are in force so that a subsequent owner of land on which a hedge is growing may know if he or she has any responsibility in respect of the hedge by virtue of a remedial notice.

Article 19 places conditions on the entry to land in accordance with the Law.

Article 20 sets out the responsibility of directors and others where a company is guilty of an offence under the Law.

Article 21 requires complaints and other documents mentioned in the Law to be in writing and provides how their contents may be made known to the people affected by them.

Article 22 allows the States, by Regulations, to amend the scope of the Law.

Article 23 applies the Law to the Crown and to Crown land so that a complaint may be made by or against the Crown in respect of a hedge. However, as is usual, nothing in the Law renders the Crown liable to prosecution for an offence under the Law. Also the Minister has no right to authorize a person to go onto Crown land for any purpose of the Law.

Article 24 provides how the Law may be cited and for its commencement.

High Hedges (Jersey) Law 200-

Arrangement

Article

1 Interpretation. 5

2 Domestic property. 6

3 Residential property. 6

4 High hedges. 6

5 Complaints to which this law applies. 7

6 Complaints. 8

7 Remedial action required to be taken. 8

8 Powers of entry in respect of complaints. 9

9 Minister may withdraw a remedial notice. 10

10 Penalty for failure to comply with remedial notice. 10

11 Minister may undertake work. 10

12 Appeal against determination of Minister in respect of complaint 11

13 Appeal against determination of Minister in respect of remedial notice. 11

14 Hearings. 12

15 Rules of Court 12

16 No compensation payable. 12

17 Other permissions. 12

18 Minister to maintain Register of Remedial Notices. 12

19 Conditions on entry of land. 12

20 Responsibility. 13

21 Documents. 13

22 Power to amend certain Articles by Regulations. 14

23 Law to apply to Crown and Crown land. 14

24 Short title and commencement 14

High Hedges (Jersey) Law 200-

A LAW relating to high hedges.

Adopted by the States [date to be inserted]

Sanctioned by Order of Her Majesty in Council [date to be inserted]

Registered by the Royal Court [date to be inserted]

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

1 Interpretation

(1) In this Law, unless the context otherwise requires –

“complaint” means a complaint to which this Law applies by virtue of Article 5;

“complainant” means –

(a) a person by whom the complaint is made; or

(b) if every person who made the complaint ceases to be an owner of the domestic or residential property specified in the complaint, any other person who is for the time being an owner of the property,

and references to the complainant include references to one or more of the complainants;

“domestic property” has the meaning assigned to that expression by Article 2;

“high hedge” has the meaning assigned to that expression by Article 4;

“Minister” means the Minister for Planning and Environment;

“neighbouring land”, in respect of a complaint, means the land on which the hedge specified in the complaint is growing;

“owner”, in respect of domestic or residential property, includes any tenant of the whole or a substantial part of the property;

“remedial notice” has the meaning given to that expression by Article 7(1)(b);

“residential property” has the meaning assigned to that expression by Article 3;

“residential purposes” has the meaning assigned to that expression by Article 3.

2 Domestic property

(1) In this Law “domestic property” means –

(a) a dwelling; or

(b) a garden or yard that is used and enjoyed wholly or mainly in connection with a dwelling.

(2) In paragraph (1) “dwelling” means a building or part of a building occupied, or intended to be occupied, as a separate dwelling.

(3) A reference in this Law to a person’s reasonable enjoyment of domestic property includes a reference to his or her reasonable enjoyment of a part of the property.

3 Residential property

(1) In this Law “residential property” means –

(a) a property, not being a domestic property, that is otherwise used for a residential purpose; or

(b) a garden or yard that is used and enjoyed wholly or mainly in connection with the residential use of such a property.

(2) In paragraph (1) “property” includes a building, a part of a building and an area of land, in each case, occupied, or intended to be occupied, for a residential purpose.

(3) In paragraph (1) “residential purpose” includes both short and long term occupation for a residential purpose and includes holiday occupation.

(4) In paragraph (3) “holiday occupation” includes occupation by way of the use of a tent or caravan or other moveable structure on the property.

(5) A reference in this Law to a person’s reasonable use of residential property for a residential purpose includes a reference to his or her reasonable use of a part of the property for that purpose.

4 High hedges

(1) In this Law “high hedge” means so much of a barrier to light as –

(a) is formed wholly or predominantly by a line of 2 or more evergreens; and

(b) rises to a height of more than 2 metres above ground level.

(2) For the purposes of paragraph (1) a line of evergreens is not taken to be regarded as forming a barrier to light if the existence of gaps significantly affects its overall effect at heights of more than 2 metres above ground level.

(3) In this Article “evergreen” means an evergreen tree or shrub or a semi-evergreen tree or shrub.

5 Complaints to which this law applies

(1) This Law applies to a complaint that –

(a) is made by the owner of domestic property; and

(b) alleges that the reasonable enjoyment of all or any part of the property for domestic purposes is being adversely affected by the height of a high hedge situated on land owned or occupied by another person.

(2) This Law also applies to a complaint that –

(a) is made by the owner of residential property; and

(b) alleges that the reasonable use of all or any part of the property for residential purposes is being adversely affected by the height of a high hedge situated on land owned or occupied by another person.

(3) This Law also applies to a complaint that –

(a) is made by the owner of a domestic property that is for the time being unoccupied; and

(b) alleges that the reasonable enjoyment of the property by a prospective occupier of the property for domestic purposes would be adversely affected by the height of a high hedge situated on land owned or occupied by another person.

(4) This Law also applies to a complaint that –

(a) is made by the owner of a residential property that is for the time being unused; and

(b) alleges that the reasonable use of the property by a prospective owner of the property for residential purposes would be adversely affected by the height of a high hedge situated on land owned or occupied by another person.

(5) This Law does not apply to complaints about the effect of the roots of a high hedge.

(6) In relation to a complaint falling within paragraph (3), references in Article 6 and 7 to the effect of the height of a high hedge on the complainant’s reasonable enjoyment of a domestic property shall be read as references to the effect that it would have on the reasonable enjoyment of the property by a prospective occupier of the property.

(7) In relation to a complaint falling within paragraph (4), references in Article 6 and 7 to the effect of the height of a high hedge on the complainant’s reasonable use of residential property shall be read as references to the effect that it would have on the reasonable use of the property for residential purposes by a prospective owner of the property.

6 Complaints

(1) This Article has effect where a complaint –

(a) is made to the Minister; and

(b) is accompanied by the fee prescribed by the Minister by Order.

(2) If the Minister considers –

(a) that the complainant has not taken all reasonable steps to resolve the matters complained of without proceeding by way of such a complaint to the Minister; or

(b) that the complaint is frivolous or vexatious,

the Minister may decide that the complaint should not be proceeded with.

(3) If the Minister does not so decide the Minister must determine if the allegation made in the complaint is justified.

(4) In doing so the Minister must take into account every relevant consideration, including any extent to which the hedge –

(a) provides privacy to the occupier of the neighbouring land; or

(b) contributes to the amenity of the neighbourhood,

and, in either case, how far it could continue to do so if the hedge were to be reduced in height.

(5) The Minister must also take into account any legal obligation relating to the hedge, whether the obligation is imposed by virtue of an enactment or otherwise.

(6) If the Minister determines that the allegation made in a complaint is not justified the Minister must notify the complainant accordingly.

(7) The notification must specify the right the complainant has under this Law to appeal against the determination of the Minister.

(8) An order made for the purpose of paragraph (1)(b) may provide that a fee payable under that paragraph may be refunded by the Minister in such circumstances and to such extent as the Minister may determine.

7 Remedial action required to be taken

(1) If the Minister determines that the allegation contained in a complaint is justified the Minister must –

(a) decide what needs to be done to the hedge to remedy the adverse effect it is having and to prevent the recurrence of that effect; and

(b) issue a notice (in this Law called a remedial notice).

(2) A copy of the remedial notice must be sent –

(a) to the complainant; and

(b) to each person who is the owner or occupier of the neighbouring land.

(3) The remedial notice must specify –

(a) what must be done to the high hedge by the owner or occupier of the neighbouring land and any conditions subject to which it must be done;

(b) the period during which it must be done and any part of that period during which it must not be done;

(c) anything that must be done after that period to prevent any recurrence of the adverse effect and any conditions subject to which it must be done;

(d) the consequences of not taking action to remedy the adverse effect during that period or, after that period, any action mentioned in paragraph (c); and

(e) the rights an owner or occupier of the neighbouring land has under this Law to appeal against the determination of the Minister or any requirement or condition specified in the remedial notice.

(4) The Minister may not, by a remedial notice, require –

(a) a hedge to be removed or to be reduced to a height of less than 2 metres above ground level; or

(b) require anything to be done by a date that is sooner than 28 days after a copy of the notice has been sent to each person who is the owner or occupier of the neighbouring land.

(5) While a remedial notice has effect it shall be binding on any person who is for the time being the owner or occupier of the neighbouring land.

8 Powers of entry in respect of complaints

(1) Where a complaint has been made or a remedial notice has been issued, a person authorized by the Minister may enter the neighbouring land to obtain information required by the Minister –

(a) to determine if the allegation made in the complaint is justified;

(b) where the Minister determines that it is, to decide what needs to be done to the hedge to remedy the adverse effect it is having and to prevent the recurrence of that effect;

(c) to determine whether to withdraw a remedial notice and if the Minister decides to do so, whether to issue an amended one; or

(d) to ascertain if a requirement of a remedial notice has been complied with.

(2) A person may not enter land in the exercise of a power conferred by paragraph (1) unless at least 24 hours’ notice of the intended entry has been given to every occupier of the land.

(3) A person who enters land in the exercise of a power conferred by paragraph (1) may –

(a) take with him or her other persons as may be necessary;

(b) take with him or her equipment and materials needed to obtain any required information; and

9 Minister may withdraw a remedial notice

(1) The Minister may at any time –

(a) withdraw a remedial notice; or

(b) withdraw a remedial notice and issue an amended one.

(2) The Minister must send notice of the exercise of a power under paragraph (1)(a) to each person who was sent a copy of the remedial notice.

(3) A notice sent under paragraph (2) shall have effect as if it were notification in accordance with Article 6(6).

(4) The exercise of a power under paragraph (1)(b) shall have effect as if it were the issue of a new remedial notice on a complaint made to the Minister.

10 Penalty for failure to comply with remedial notice

(1) A person who –

(a) fails to comply with a requirement of a remedial notice that binds the person; or

(b) when complying with a requirement of a remedial notice, fails to comply with a term or condition of the notice,

shall be guilty of an offence and liable to a fine not exceeding [level ?] on the standard scale.

(2) An offence under paragraph (1) may be charged by reference to a day or any longer period of time and a person may be convicted of a second offence or subsequent offences under paragraph (1) by reference to any period of time following the preceding conviction for such an offence.

(3) If –

(a) a person charged with an offence under paragraph (1) has not been sent a copy of the remedial notice in accordance with Article 7(2)(b); and

(b) details of the notice are not contained in the Register of Remedial Notices maintained in accordance with Article 18,

it shall be a defence to show that the person was not aware of the existence of the notice.

11 Minister may undertake work

(1) If a person fails to comply with a requirement of a remedial notice that binds the person the Minister may –

(a) authorize a person to enter the neighbouring land and undertake what is required to be done; and

(b) recover any expenses reasonably incurred by that person in doing so from any person who is the owner or an occupier of the land as a debt due from the owner or occupier to the Minister.

(2) If the expenses are recoverable from 2 or more persons, they shall be jointly and severally liable for them.

(3) A person may not enter land in the exercise of a power conferred by paragraph (1) unless the Minister has given every occupier of the land at least 7 days’ notice of the intended entry.

(4) A person who enters land in the exercise of a power conferred by paragraph (1) may –

(a) use a vehicle to enter the land;

(b) take with him or her other persons as may be necessary;

(5) For the purpose of paragraph (1)(a), a person who carries out work under this Article must provide details of the work carried out if asked to do so by the owner or occupier of the land.

12 Appeal against determination of Minister in respect of complaint

(1) A complainant may appeal to the Royal Court against a determination by the Minister that the allegation made in the complaint by the complainant is not justified.

(2) The appeal must be made within 28 days of the complainant being notified by the Minister of the determination or within such further period as the Royal Court may consider justice requires.

(3) On the appeal the Royal Court may –

(a) confirm the determination of the Minister; or

(b) order the Minister to issue a remedial notice that specifies, in particular, what must be done to the high hedge by the owner or occupier of the neighbouring land as determined by the Court.

(4) The Minister must comply with an order made under paragraph (3)(b).

13 Appeal against determination of Minister in respect of remedial notice

(1) The owner or occupier of the neighbouring land may appeal to the Royal Court against –

(a) a determination by the Minister that the allegation made in a complaint is justified; or

(b) any requirement or condition specified in a remedial notice.

(2) The appeal must be made within 28 days of the owner or occupier being sent a copy of the remedial notice or within such further period as the Royal Court may consider justice requires.

(3) Where an appeal is made in pursuance of paragraph (1), the remedial notice shall be of no effect pending the final determination or withdrawal of the appeal.

(4) On the appeal the Royal Court may –

(a) confirm the determination of the Minister;

(b) order the Minister to withdraw the remedial notice; or

(5) The Minister must comply with an order made under paragraph (4)(b) or (c).

14 Hearings

A person appearing at a hearing by the Royal Court of an appeal under Article 12 or Article 13 may appear and be heard, either in person or by a representative, who shall be an advocate of the Royal Court or such other person as the Royal Court may by rules prescribe.

15 Rules of Court

The power to make rules of court under Article 13 of the Royal Court (Jersey) Law 1948 shall include the power to make rules regulating practice and procedure in applications and appeals under Articles 12 and 13.

16 No compensation payable

Action taken by the Minister under this Law does not give any person the right to claim compensation in respect of any loss or damage the person may suffer as a result of that action.

17 Other permissions

In so far as any permission is required under any other Law that permission shall be taken to have been granted to undertake work in compliance with the terms and conditions of a remedial notice.

18 Minister to maintain Register of Remedial Notices

(1) The Minister shall maintain a register, called the Register of Remedial Notices, containing details of each remedial notice that the Minister has issued and is still in force.

(2) The Minister shall make the register available for inspection by the public at all reasonable hours.

19 Conditions on entry of land

(1) A person authorized under Article 8 or Article 11 to enter land –

(a) must, if so required, produce evidence of his or her authority to do so before entering; and

(b) must produce that evidence if required to do so at any time while on the land.

(2) If, in the exercise of a power conferred by Article 8 or Article 11, a person enters land that is unoccupied or from which all of the persons occupying the land are temporarily absent, the person must on departure leave it as effectively secured against unauthorized entry as he or she found it.

(3) A person who intentionally obstructs or hinders a person acting in the exercise of a power under Article 8 or Article 11 is guilty of an offence and shall be liable to a fine not exceeding [level ?] on the standard scale.

20 Responsibility

(1) If an offence under this Law that has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of –

(a) a director, manager, secretary or other similar officer of the body corporate; or

(b) a person who was purporting to act in any such capacity,

that person, as well as the body corporate, shall be guilty of the offence and be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, paragraph (1) shall apply in relation to the acts and defaults of a member in connection with her or his functions of management as if the person were a director of the body corporate.

(3) A person who aids, abets, counsels or procures the commission of an offence under this Law shall also be guilty of the offence and liable in the same manner as a principal offender to the penalty provided for that offence.

21 Documents

(1) This Article applies to a complaint, notice or notification authorized or required to be made, issued, sent or given by virtue of this Law.

(2) It must be in writing.

(3) If it is to be sent to a body corporate it may be sent to the secretary or clerk of the body corporate.

(4) It may be sent to a person –

(a) by delivering it to the person;

(b) by leaving it at the person’s proper address;

(5) For the purposes of this Article and of Article 7 of the Interpretation (Jersey) Law 1954 in its application to this Article, the proper address of a person is –

(a) in the case of the secretary or clerk of a body corporate, the registered or principal office of the body corporate; and

(b) in any other case –

(i) the usual or last-known place of abode of the person, but

(ii) if the person has given the Minister an address for service, that address.

(4) If the Minister is unable to ascertain after reasonable enquiry the name or address of the owner, lessee or occupier of land to whom anything to which this Article applies is to be sent, it may be sent –

(a) by addressing it to the person to whom it is to be sent by the description of “owner”, “lessee” or “occupier” of the land (describing it) to which it relates; and

(b) by delivering it to some responsible person resident or appearing to be resident on the land, or, if there is no such person, by affixing it, or a copy of it, to a conspicuous part of the land.

22 Power to amend certain Articles by Regulations

(1) The States may by Regulations –

(a) amend Article 4 to amend the definition of “high hedge”; and

(b) amend Article 5 to extend the scope of complaints relating to high hedges to which this Law applies.

(2) Regulations made under paragraph (1) may also make such consequential amendments of this Law as the States consider appropriate.

23 Law to apply to Crown and Crown land

(1) This Law applies to the Crown and to Crown land.

(2) Nothing in this Law renders the Crown liable to prosecution for an offence under this Law.

(3) Articles 8 and 11 do not apply in respect of a hedge growing on Crown land.

24 Short title and commencement

(1) This Law may be cited as the High Hedges (Jersey) Law 200-.

(2) It shall come into force on the seventh day following its registration.