Field No. O60A, La Route de Plemont, St. Ouen: High Hedge Complaint

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A decision made on 11 February 2019

Decision Reference: MD-PE-2019-0021			High Hedge Complaint Ref: HH/2018/0677
Decision Summary Title:	Field No. O60A, La Route de Plemont, St. Ouen – High Hedge Complaint		Date of Decision Summary:	07/02/2019
Decision Summary Author:	Planning Officer (GHE)		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	n/a
Written Report Title:	Report for Ministerial Meeting - High Hedge Complaint		Date of Written Report:	Not dated
Written Report Author:	Planning Officer (GHE)		Written Report : Public or Exempt?	Public
Subject: High Hedge Complaint made under Article 7 of the High Hedges (Jersey) Law 2008 - Field No. O60A, La Route de Plemont, St. Ouen.
Decision: The Assistant Minister decided to uphold the Complaint made under the High Hedges (Jersey) Law 2008 and to serve a Remedial Notice requiring the hedge to be reduced in height.
Reason for Decision: The Assistant Minister agreed with the Written Report in that the complainant’s reasonable enjoyment of part of their property is adversely affected by the height of the high hedge situated on the eastern boundary of Field No.O60A.
Resource Implications: n/a
Action required: Planning officer to issue a Remedial Notice in accordance with the recommendations of the Written Report.
Signature: Deputy Gregory Guida		Position: Assistant Minister for the Environment
Date Signed:		Date of Decision (If different from Date Signed):

Field No.O60A, La Route de Plemont, St. Ouen: High Hedge Complaint

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

Report for Ministerial Meeting

High Hedge Complaint

Site Visit

1. Application Number

HH/2018/0677

2. Site Address	Field No. O60A, La Route de Plemont, St. Ouen.

3. Complainant	Mr & Mrs B Scholfield

4. Description	Reduce height of hedge to Eastern boundary of Field O60A.

5. Type	Major Application

6. Date Validated	17/05/2018

7. Zones & Constraints	Green Zone
Summary Department Recommendation	This is a High Hedge Complaint relating to an ornamental evergreen hedge, measuring up to approximately 17m in height, located on the eastern boundary of Field No.O60A, adjacent to Clos du Mur, a residential dwelling. The Department, having regard to all material considerations, accepts that the complainant’s reasonable enjoyment of part of their property is adversely affected by the height of the high hedge – the relevant test under Article 5 of the High Hedges (Jersey) Law 2008. Accordingly, in consultation with the GHE Arboricultural Officer, the Department recommends that a Remedial Notice be issued to the owner of the hedge, requiring the hedge to be reduced to 8.5m in height; the overhang to Clos du Mur cut back to green shoots; and, thereafter remedial works undertaken on an annual basis to secure ongoing compliance with the requirements of the notice.

8. Site Description & Existing Use	Field No.O60A is located on the eastern side of La Route de Plemont within the designated Green Zone, adjacent to which on its eastern side lies Clos du Mur, a residential dwelling. The evergreen hedge subject of this complaint, runs north to south approximately 30m in length and up to approximately 17m in height on the eastern boundary of Field No.O60A, adjacent to Clos du Mur.

9. Complainants Case	Mr & Mrs Scholfield, the complainants and owner occupiers of Clos du Mur, have set out their case on the completed application form and supporting documentation. Their case is summarised as follows: The reasonable enjoyment of their property is being adversely affected by the height of the hedge; The hedge is a significant barrier to light entering the house; The height of the hedge should be reduced to 2m to avoid blocking too much daylight/sunlight; The hedge makes contact with the walls and gutters of Clos du Mur; Given its height and location the hedge is making the bank which it is sited upon unstable and there is a risk that one or more of the trees forming the hedge will fall onto Clos du Mur; Clos du Mur is continuously littered with fallen tree debris and rocks, which are dislodged from the bank; Given the size of the hedge there is substantial wind noise; and, The hedge does not contribute to the amenity of the neighbourhood.

10. Hedge Owners Case	Mr & Mrs Radcliffe, the owners of the land upon which the hedge is sited have submitted a statement, the content of which is summarised as follows: The hedge was originally planted by the owners of Clos du Mur so the property could be screened from the road and other areas; The hedge is planted on a steep sloping bank that should have been reinforced; The water from a downpipe and gutter end to Clos du Mur has eroded the bank; The metal grills, installed in the openings of the walls to Clos du Mur, to stop loose rocks and debris, have been removed; We have planted a native hedge to the west of the field and some 3500 native plants; Agree that the hedge is thinning at the base; The growth to one side of the hedge is mainly because of the wind; In ten years the hedge has not grown much at all; We are prepared to address the overhang but request that the boundary stones be returned to their correct position; Complainant suggests in a current planning application for Clos du Mur that the hedge provides a screen yet are asking for the same hedge to be removed under this High Hedge Complaint; Agree that the hedge could be replaced by a better mixture of species – this is our long term intention; and, As the hedge provides shelter and some wildlife amenity and screens the roofline of Clos du Mur, it should remain until a new mix of trees and hedging plants are established (this area could be 10-12m deep to create a good wildlife habitat).

11. Consultations

GHE Arboricultural Officer in their response dated 29 September 2018 stated:

“Species of hedge:

Single line of Cupressocyparis leylandii (leylandii) mixed with Cupressocyparis leylandii “Casttlewellan Gold” (Golden leylandii) both are an ornamental evergreen hedge.

Position:

The hedge runs North to South on the Eastern boundary of field 060A and the House Clos Du Mur. The hedge is planted on top of a steep sloping bank of expose soil and rock.

Contribution to public amenity:

The hedge does not provide much amenity value as the lower portion is in decline and thinning out which now is not providing a good screen. To the West of field 060A there is a younger smaller native hedge of Sloe, Hawthorn and Field Maple which provides a good screen to the road and hedge.

The leylandii hedge is an ornamental evergreen hedge planted in the countryside which means it does not provide much habitat for wildlife.

Health and vigour:

The lower branches are dying off as the hedge gets bigger this will likely to continually die back. Where gaps have appeared they have been temporary filled in with plastic sheeting. They are positioned on thin soils on a rock face will not allow for good deep roots so in time they will be prone to the exposed to high winds.

The majority of good growth is one sided and unbalanced over the property Clos Du Mur.

All this leads to a poor low vigour hedge.

Potential for it to be reduced in height and the implications of doing so for its health and its public amenity value:

It is my opinion the height which would not put the hedge in too much stress would be only around half the height is it now no lower. The house owner would like it taken down to 2m but this would put the whole hedge into sever stress and may perhaps die which the minister is unable to agree to.

The majority of the problem is the overhang to the neighbouring property. My understanding of Jersey law is that every owner is duty bound to trim branches which grow over the land of a neighbour see Hanbry v Smith, however the landowner cannot cutback the overhang himself as they can English law.

The removal of any overhang to Clos Du Mur would significantly reduce some of the concerns. Unfortunately the cutting back of said branches could cause more gaps in the lower half of the hedge.

The embankment which the house sits below would cast shade to the property and garden even if the hedge was not there so any added height of the hedge extends to the time the property is in shade.

Its probable annual growth rate ( i.e extent of annual pruning likely to be required.

Regrowth would be limited to the upper most portion of the hedge as the base is already naturally dying back and there is nothing to prevent this. The regrowth would be around 200mm to 700mm.”

Natural Environment Section of GHE in its response dated 24 May 2018 stated:

“I have no concerns about this work which seems appropriate and necessary.

Due to the size and scale of the proposed work, the tree reduction should take place outside of the bird nesting season.”

All consultations are attached with the background papers

12. Appraisal

This High Hedge Complaint falls to be considered under the High Hedges (Jersey) Law 2008.

This complaint is made by the owner (Mr & Mrs Scholfield) of a domestic property (i.e. Clos du Mur); and 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 the eastern boundary of Field No.O60A, which is land owned or occupied by Mr & Mrs Radcliffe.

Firstly, the ornamental evergreen hedge to the eastern boundary of Field No.O60A, which is the subject of this complaint, amounts to a “high hedge”, as defined under Article 4 of the High Hedges (Jersey) Law 2008, in that it is formed wholly or predominantly by a line of 2 or more evergreens; and it rises to a height of more than 2m above ground level.

In determining the outcome of this complaint the Law requires the following matters to be taken into account:

Whether the hedge existed at the time the complainant

acquired an interest in their property and the height of the hedge at that time;

Any extent to which the hedge adds to the privacy and

enjoyment of the neighbouring land or contributes to the amenity of the neighbourhood;

and,

Any legal obligation relating to the hedge, whether the

obligation is imposed by virtue of an enactment or otherwise.

For ease of reference each matter is addressed in the order in which it is set out above.

The complainant has confirmed that they occupied Clos du Mur as of 30 November 2017 and the height of the hedge was unchanged (i.e. approximately 17m).

As set out above the high hedge aligns part of the eastern boundary of Field No.O60A, which the Department understand is used for grazing. The field does not form part of the residential land use of La Place to which the hedge owners occupy and which lies in excess of 60m to the south of the high hedge. As such given the nature of the use of land and the high hedge being largely screened and physically detached from La Place, it is not reasonably considered to add to the privacy and enjoyment of the land.

Moreover, the poor condition of the high hedge and it being a non-native species within a distinctly rural setting offering little value to biodiversity, is such that it is not considered to contribute to the amenity of the neighbourhood.

The Department at this time are not aware of any legal obligation relating to the hedge, whether the obligation is imposed by virtue of an enactment or otherwise

In this instance the height of the hedge (approximately 17m); its position on an elevated bank (approximately 4m above the ground level of Clos du Mur); and, its close proximity to Clos du Mur (within 2m of dwelling), is such that the hedge is considered to act as a barrier to light, causing overshadowing of Clos du Mur and the garden on the northern side of the property; and; a loss of light to windows on the north east facing elevation of the property.

Accordingly, the complainant’s reasonable enjoyment of part of their property is considered to be adversely affected by the height of the high hedge situated on the eastern boundary of Field No.O60A – the relevant test under Article 5 of the High Hedges (Jersey) Law 2008.

Having regard to the above, consideration must then be given to the height to which the hedge could be reduced that would still afford reasonable protection to the interests of the occupier of the neighbouring land.

Current guidance provides a means of calculating the height of a hedge that is likely to cause a loss of light and provides a procedure to calculate the overall action hedge height (i.e. the height to which the hedge may be reduced). This is calculated having regard to the area of garden; the hedge length; the proximity of windows; and, the position of ground levels and internal floor levels relative to the high hedge.

In this instance the overall action hedge height identifies a reduction in the hedge height to 2m. However, as set out within the consultation response from the GHE Arboricultural Officer, such a reduction “would put the whole hedge into sever stress and may perhaps die”.

In deciding what needs to be done to the hedge to remedy the adverse effect it is having and to prevent the recurrence of that effect, a remedial notice may be issued. The wholesale removal of the hedge may be preferred. However, a remedial notice may NOT require:

- a hedge to be removed or to be reduced to a height of less than 2 metres above ground level.

Having balanced the limitations of a remedial notice; the need to remedy the adverse effect the hedge is having; and, to ensure the hedge is not placed under undue stress, the Department would recommend a maximum 50% reduction in the hedge height to 8.5m in height; and, to cut back the hedge overhang to Clos du Mur to green shoots, as advised by the GHE Arboricultural Officer.

13. Conclusion

Having regard to all material considerations, the Department conclude that the height of the hedge; its position on an elevated bank on the eastern boundary of Field No.O60A; and, its close proximity to Clos du Mur are such that the complainant’s reasonable enjoyment of part of their property is considered to be adversely affected by the height of the high hedge – the relevant test under Article 5 of the High Hedges (Jersey) Law 2008.

Accordingly, the Department recommends that a Remedial Notice is issued.

The removal of the high hedge may be a preferred course of action. Indeed the land owner has indicated a willingness to implement a more appropriate programme of planting as a long term replacement.

However, having balanced the need to remedy the ongoing adverse effect the hedge is having with the limitations of a remedial notice; and, to ensure the hedge is not placed under undue stress, which may place the hedge at risk of dying and put both parties at greater risk; the Department would recommend a maximum 50% reduction in the hedge height to 8.5m in height and to cut back the hedge overhang of Clos du Mur to green shoots. Thereafter, remedial works will be required to be undertaken on an annual basis to secure ongoing compliance with the requirements of the notice

14. Department Recommendation	Issue Remedial Notice

15. Remedial Notice Conditions (Reasons in Italics after each condition)	1. Initial Action Reduce the height of the line of Cupressocyparis leylandii (leylandii) mixed with Cupressocyparis leylandii “Casttlewellan Gold” (Golden leylandii) which runs north to south on the eastern boundary of Field No.O60A, adjacent to Clos du Mur, to 8.5m, as measured from the base of the hedge; and, cut back the hedge overhang of Clos du Mur to green shoots. Reason These actions are required to help remedy the ongoing adverse effect the hedge is having upon the complainant’s reasonable enjoyment of their property. 2. Preventative Action The reduced height and cut back of the line of Cupressocyparis leylandii (leylandii) mixed with Cupressocyparis leylandii “Casttlewellan Gold” (Golden leylandii) which runs north to south on the eastern boundary of Field No.O60A, adjacent to Clos du Mur, shall be maintained at the level, as set out under Condition no1 of this Notice. Reason These actions are required to secure ongoing compliance with the requirements of this Notice in the interests of the complainant’s reasonable enjoyment of their property. 3. Time for Compliance The initial Action (1) shall be complied with in full within 3 months of the date of this Notice. Reason To provide a reasonable period of time within which the Initial Action may be carried out. 4. Landscape Timing Condition Any works to the hedge shall only be undertaken between the months of 1 October and 1 March, unless a written statement has been submitted from a suitably qualified and competent person confirming that there are no nesting birds or other protected wildlife in any of the hedgerows to be pruned/lopped. The written statement shall be submitted and approved in writing by the Department at least 5 working days in advance of any works. Reason To ensure the protection of any nesting birds and any protected species.

16. Background Papers	1:2500 Location Plan Site Plan – Topographical Survey Site Plan All consultation responses Correspondence with Neighbour Tree Assessment Photographs Ground Floor Plan First Floor Plan Complainant email and attached details of 7 September 2018 Land Owner Response Case Officer Spreadsheet to calculate action hedge height

Ministerial Case: MD-PE-2019-0021