Le Fromentel, La Grande Route de la Cote, St. Clement: High Hedge Reduction Application (HH/2013/1321) determined by Minister

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A decision made 16 January 2014:

Decision Reference: MD-PE-2014-0005			Application Number: HH/2013/1321 (If applicable)
Decision Summary Title :	Le Fromentel, La Grande Route de la Cote, , St. Clement, Jersey.		Date of Decision Summary:		15th January 2014
Decision Summary Author:	Planner - G Way		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)		Public
Type of Report: Oral or Written?	Oral and Written		Person Giving Oral Report:		Director of Planning & Planner
Written Report Title :	Report for Ministerial Meeting HH/2013/1321		Date of Written Report:		22nd November 2013
Written Report Author:	Planner - G Way		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)		Public
Subject: Le Fromentel, La Grande Route de la Cote, , St. Clement, Jersey, JE2 6SD Application to complain about a high hedge.
Decision(s): Following a Public Ministerial Meeting on 6th December 2013, when the Minister deferred the item for an accompanied site visit (which took place on 13th December 2013), at an internal meeting on 13th January 2014 the Minister decided: That both the Holly (Ilex Aquifolium) and the Leylandii (Cupressocyparis Leylandii) hedges are adversely affecting the reasonable enjoyment of the owners of the neighbouring property, known as Melsar. And has resolved to: Uphold the High Hedge Complaint and issue a Remedial Notice to initiate the following: To reduce the height of the Holly Hedge to 3m and for it to be maintained at 3.5m. To reduce the height of the Leylandii to 4.2m and for it to be maintained at 4.2m annually.
Reason(s) for Decision: To ensure that the owners of the neighbouring property Melsar are not adversely affected by the Holly and Leylandii boundary hedges and can reasonably enjoy their property. 1. Initial Action Reduce the height of the Holly (Ilex Aquifolium) (‘the hedge’) along the south west boundary of Melsar to a height not exceeding 3 metres above ground level. Reason The hedge is required to be reduced to this maximum height to reduce the problems caused by it, whereby it adversely affects the level of daylight enjoyed by the Complainant, whilst ensuring the survival of the hedge. Reduce the height of the Leylandii (Cupressocyparis Leylandii) (‘the hedge’) along the north west boundary of Melsar to a height not exceeding 4.2 metres above ground level. Reason The hedge is required to be reduced to this maximum height to reduce the problems caused by it, whereby it adversely affects the level of daylight enjoyed by the Complainant, whilst ensuring the survival of the hedge. 2. Preventative Action The Holly (Ilex Aquifolium) (‘the hedge’) shall be maintained as such that at no time does it exceed a height of 3.5 metres above ground level. Reason To ameliorate the impact of the hedge upon the adjacent property whilst seeking to ensure the survival of the hedge. The Leylandii (Cupressocyparis Leylandii) (‘the hedge’) shall be maintained annually and reduced to a height of 4.2 metres above ground level on an annual basis. Reason To ameliorate the impact of the hedge upon the adjacent property whilst seeking to ensure the survival of the hedge. 3. Time for Compliance The Initial Action (1) shall be complied with in full within three months of the date when this Notice comes into effect. Reason To provide a reasonable period of time within which the Initial Action may be carried out. INFORMATIVE: All works should be carried out in accordance with good arboricultural practice BS3998: ‘Recommendations for Tree Work’. It is recommended that skilled contractors are employed to carry out this specialist work. Notwithstanding the time frame set out above the applicant’s attention is drawn to the comments set out by the Natural Environment dated 15th October 2013 which state the following: If a tree or hedgerow is to be removed, heavily pruned or pollarded during the bird and squirrel breeding season (March to September inclusive) then the tree/hedgerow should be first checked by a competent person (such as a tree surgeon) to determine the presence of any nests that are in use. If any nests are found then work should halt immediately and the Department of the Environment contacted. This is to avoid any accidental infringement of the Conservation of Wildlife (Jersey) Law 2000.
Resource Implications: None
Action required: Issue Remedial Notice to Owner and Notify Complainant.
Signature: Deputy R C Duhamel		PLeg / AS Initials		Position: Minister for Planning and Environment
Date Signed:				Date of Decision (If different from Date Signed):

Le Fromentel, La Grande Route de la Cote, St. Clement: High Hedge Reduction Application (HH/2013/1321) determined by Minister

Department of the Environment

Planning and Building Services

South Hill

St Helier, Jersey, JE2 4US

Tel: +44 (0)1534 445508

Fax: +44 (0)1534 445528

Department of the Environment

Report for Ministerial Meeting

1. Application Number

HH/2013/1321

2. Site Address	Le Fromentel, La Grande Route de la Cote, St. Clement, JE2 6SD.

3. Complainant	Mr G. Dance

4. Description	Application to complain about a high hedge.

5. Type	Major Application

6. Date Validated	25/09/2013

7. Zones & Constraints	Built-Up Area Eastern Cycle Route Corridor Primary Route Network Potential Listed Building
Summary	This is a High Hedge complaint relating to a row of Leylandii which are located on the north east side of the property known as Melsar and a row of Holly trees which are on the south west side of Melsar. At their highest, the Leylandii reaches a height of approximately 6m and the Holly trees vary from 3.4m to 5.4m above ground level. The department accepts the arguments made by the complainants in respect of those trees and hedges along the north west and south west boundaries, namely that the Leylandii and Holly hedge (which, for the purposes of the High Hedge legislation, do constitute a hedge) adversely affect their reasonable enjoyment of their property. Accordingly, the department recommends that a Remedial Notice be issued to the owner of the hedge, which requires it to be cut back and maintained at a lower height (as set out below). In respect of the two deciduous trees further west of the Holly hedge, the Department does not believe that these trees constitute a High Hedge as they are not evergreen or semi evergreen, as required under the legislation.
Department Recommendation	That a Remedial Notice be issued requiring an initial reduction in the height of the Holly Hedge (Ilex Aquifolium) to 3.2m and an intial reduction of the Leylandii (Cupressocyparis Leylandii) to 4.2m (‘the hedges’), thereafter the Holly shall be maintained at a maximum of 3.8m and the Leylandii at a maximum of 5m. This should be undertaken within 3 months of the Remedial Notice taking effect.

8. Site Description	Melsar (the complainants’ property) is a two storey property which was built in 1969. This is located to the south west of Rue de la Pontlietaut in St Clement. The hedges, which are the subject of this complaint, a row of Leylandii are located on the north west and Holly hedges are located on the south west boundaries. The landowner of Le Fromental arranged for the Leylandii trees to be reduced in height since the Chartered Surveyor submitted his report to the Department. The Leylandii therefore reaches a height of approximately 6m (no longer 7.42m). The Holly hedge still remains (at the time of writing this report) at a height of between 3.4m at the south end of the south western boundary increasing to 5.4 at the north end of the same said boundary.

9. Complainant’s Case	Within the application form the complainants state that the trees and hedging have resulted in a serious loss of light to their property. The complainant has been in written and verbal contact with the landowner. They confirm however, that he has been unwilling to meet in person to discuss the heights. They recognise in their submission that the landowner has reduced the height of the trees in the past and the Leylandii more recently, since the submission of the High Hedge Complaint. It is the complainant’s opinion that the landowner has not reduced them to an appropriate height of 1m above the fence line in their view (approximately 2.7m high from ground level). They confirm that they are having to switch lights on in the afternoon. Accordingly the complainants consider that they have been left with no other option other than to submit a High Hedge Complaint to the Minister for Planning and Environment in order to seek redress. Copies of recent correspondence between the two parties are attached in the background papers.

10. Hedge Owner’s Case	The hedge owner states that he arranged for gardeners to reduce the height of the Holly to the same height as it had been reduced in the past following a conversation with the complainant. He also confirms in the submitted correspodence that he significantly reduced the boundary in July. Furthermore, he clarifies that he would be arranging for a tree surgeon to look at various trees, ‘to see what trimming ought to take place to bring them to where they have been in the past’, as he has done on a tri-annual basis in the last few years. The owner also states that the vegetation in his garden is important in terms of retaining the privacy that he enjoys and wishes to continue to enjoy. The owner also refers to the terms of the High Hedges (Jersey) Law 2008, Article 6 sub-section 4 which addresses what the Minister is required to take into account in determining a complaint. The owner disagrees with the suggestion that the hedges should be reduced to below where the hedging has been cut back to in the past. He also states that he has previously removed a Leylandii which was appreciated by the complainant at the time. In conclusion the owner confirms that he is ‘happy to have them at the same level that they have always been and that some maintenance is overdue and this will be attended to in the fairly near future’.

11. Consultations

Natural Environment Section of DoE in their letter dated 15th October state the following:

This planting is of limited ecological value with incidental potential for nesting birds. Reduction in height of this planting would only impact on nesting birds using these plants at the time of pruning. The long term implications of a reduction in height would be negligible providing work is done inline with the advice and subject to a condition for protecting birds during the nesting season.

Independent Surveyor (Mr B Livesey of NSJ Chartered Surveyors) in his email 20th November 2013 reports the following:

It should be noted that the report was undertaken by the Surveyor prior to lopping carried out on 20th November 2013 by the tree owner’s tree surgeon. At the site visits by the officer on 20th and 21st November, it was considered that the Leylandii had been reduced by approximately 1.5- 2m in height.

1) The entire length of the south west Holly hedges should be reduced down to 2m in height from ground level. Their current heights range from 3.38m to 5.44m high.

2) The entire Leylandii hedge to the north west should be reduced down from approximately 6m to 2.15m high from ground level.

Three tall deciduous trees are disadvantageous for the complainant, however they do not constitute a High Hedge under the legislation as they are not evergreen or semi evergreen.

States of Jersey Aboricultural Officer in his email dated 21st November 2013 identified the following:

The Holly hedge (Ilex Aquifolium) is of varying ages between 20-35 yrs old.

Public amenity value – relates only to the two house owners as a green screen.

Health and Vigour - it is in good health.

Potential for re growth - the reduction of its height down to 2m would significantly reduce the life span of the hedge as it would soon become exposed to disease.

Recommendation: The Holly to be reduced to 3m 20 cm allowing annual regrowth and still provide some screening between properties. The hedge shall be pruned when it has regrown 60 cm or every three years depending on the vigour of the hedge.

The Leylandii (Cupressocyparis Leylandii)

Public amenity value - has a low amenity value as it provides a green screen between property owners

Health and vigour – Just been cut on two sides, so unable to tell extent of vigour but growth around 30cm on average but it is in good condition.

Potential for re growth - The reduction of the hedge to 2.15m in order to give maximum light would significantly reduce the life span of the hedge as it would soon become exposed to disease.

Recommendation - The hedge is recommended to be reduced to 4m 20cm in height to allow for annual re growth and still provide some screening between properties. The hedge shall be pruned every year or when it gets to 5m depending on the vigour.

All consultations are attached with the background papers

12. Assessment

The Leylandii hedge is a high hedge under the 2008 Law in that is is formed wholly or predominantly by a line of 2 or more evergreens and rises to a height of more than 2 metres above ground level. The complaint is therefore legitimate as it relates to a High Hedge as defined by the Law.

The supporting documentation submitted by the complainant and the owner of the hedge clearly illustrates that relations have unfortunately broken down and that all reasonable steps have been taken to resolve the matters complained of prior to submitting the complaint.

Attempts to resolve the issue by the landowner have only stipulated a reduction in the height of the hedge, to the same level as they have always been’ but this does not specify the exact reduction in the height of the hedge.

The Department accepts the recommendation of the Chartered Surveyor in that the Holly Hedge is 3.38m to 5.44m high and the Leylandii is approximately 6m high (taking into account recent lopping) and both boundaries result in an unreasonable loss of light. However the Surveyors recommendation of the extent of the reduction in height is considered excessive as this will endanger the life of the hedges.

It is noted however that the landowner already enjoys a significant level of privacy to his garden which is orientated mainly to the south of the dwelling. Crucially the landowner’s private amenity space is located close to the south side of the dwelling Le Fromental and is a significant distance from the first floor (north west and south west facing) windows of Melsar.

13. Conclusion

The High Hedge Law requires the Minister to determine:

‘whether the reasonable enjoyment of property, for domestic purposes, is being adversely affected by the height of a high hedge on land owned or occupied by another person’

Having regard to all material considerations, the department’s view is that the run of Holly hedge and Leylandii boundary does adversely affect the complainants’ reasonable enjoyment of their property. Accordingly, the department recommends that action be taken in order to address this problem under the provisions of the High Hedge legislation.

The proposed reduction in the height of the Holly hedge to 3.2m above ground level and the Leylandii to 4.2 metres above ground level is considered to be a reasonable outcome for all parties. It would ensure sufficient privacy is maintained between the relevant properties whilst ensuring that an adequate level of light reaches the rear (north west and south west) of Melsar.

14. Officer Recommendation	Issue Remedial Notice as per below.

15. Remedial Notice Conditions	1. Initial Action Reduce the height of the Holly (Ilex Aquifolium) (‘the hedge’) along the south west boundary of Melsar to a height not exceeding 3.2 metres above ground level. Reason The hedge is required to be reduced to this maximum height to reduce the problems caused by it, whereby it adversely affects the level of daylight enjoyed by the Complainant, whilst ensuring the survival of the hedge. Reduce the height of the Leylandii (Cupressocyparis Leylandii) (‘the hedge’) along the north west boundary of Melsar to a height not exceeding 4.2 metres above ground level. Reason The hedge is required to be reduced to this maximum height to reduce the problems caused by it, whereby it adversely affects the level of daylight enjoyed by the Complainant, whilst ensuring the survival of the hedge. 2. Preventative Action The Holly (Ilex Aquifolium) (‘the hedge’) shall be maintained such that at no time does it exceed a height of 3.8 metres above ground level. Reason To ameliorate the impact of the hedge upon the adjacent property whilst seeking to ensure the survival of the hedge. The Leylandii (Cupressocyparis Leylandii) (‘the hedge’) shall be maintained such that at no time does it exceed a height of 5 metres above ground level. Reason To ameliorate the impact of the hedge upon the adjacent property whilst seeking to ensure the survival of the hedge. 3. Time for Compliance The Initial Action (1) shall be complied with in full within three months of the date when this Notice comes into effect. Reason To provide a reasonable period of time within which the Initial Action may be carried out. INFORMATIVE: Notwithstanding the time frame set out above the applicant’s attention is drawn to the comments set out by the Natural Environment dated 15th October 2013 which state the following: If a tree or hedgerow is to be removed, heavily pruned or pollarded during the bird and squirrel breeding season (March to September inclusive) then the tree/hedgerow should be first checked by a competent person (such as a tree surgeon) to determine the presence of any nests that are in use. If any nests are found then work should halt immediately and the Department of the Environment contacted. This is to avoid any accidental infringement of the Conservation of Wildlife (Jersey) Law 2000.

16. Background Papers
	1:2500 Location Plan Three consultation responses Submissions from Complainant (3rd September 2013) Submissions from the high hedge owner (12 and 27th September 2013) Aerial Photo 2012