High Hedges (Jersey) Law 2008: Royal Court Rules.

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A decision made (01/06/2009) regarding: High Hedges (Jersey) Law 2008: Royal Court Rules.

Decision Ref:	MD–PE–2009-0095
Subject:	High Hedges (Jersey) Law 2008: Royal Court Rules
Decision Summary Title:	DS – HH Royal Court Rules
DS Author:	Assistant Director
DS Date:	07 May 2009	DS Status:	Public
Written Report Title:	WR –HH Royal Court Rules
WR Author:	Assistant Director
WR Date	07 May 2009	WR Status:	Public
Oral Rapporteur:	Assistant Director
Decision(s):	The Minister for Planning and Environment resolved to express the view to the Court, through the Law Officers, that the Royal Court Rules be amended to make a High Hedges appeal procedurally the same as a planning appeal; the Royal Court Rules be amended to ensure that all interested persons have the right to be involved; the amended Royal Court Rules for High Hedges be subject to a modified procedure to ensure that interested parties are not normally at risk of costs.
Reason(s) for Decision:	The Minister does not wish to discourage those who wish to exercise their right of appeal in respect of the administration of the High Hedges (Jersey) Law 2008 by virtue of the Rules of the Court and/or the risk of costs.
Legal and Resource Implications:	The effect of the Practice Direction for the modified procedure in respect of planning appeals is, in most cases, to deprive the successful party from recovering their costs, unless there are exceptional circumstances. If as a matter of policy the Minister takes the view that High Hedge appeals should be placed on a similar footing to appeals under the modified procedure for planning appeals, then the probability is that the department will not get its costs for most appeals It is relevant to note that the number of appeals anticipated under the High Hedges Law is considered to be low based on the fact that since the introduction of the Law, in January 2008, there have been eight applications made; one of which has resulted in an appeal (from a complainant, where the complaint was dismissed). Costs borne by the department are those related to officer time in preparing the case for appeal: this work will be done by the Department’s Appeals team, with support from the case officer, where required.
Action required:	Notify Law Officers of the Minister’s view, with a request that they communicate such to the Court
Signature:		Date of SMT approval:
Position:	Minister for Planning and Environment
Date Signed:		Date of Decision (If different to Date Signed):

High Hedges (Jersey) Law 2008: Royal Court Rules.

PLANNING AND ENVIRONMENT

Appeals: High Hedges (Jersey) Law 2008

Royal Court Rules

Purpose of the Report

This purpose of this report is to provide the Minister with an opportunity to determine whether he is of the view that the Royal Court Rules might be amended to ensure that all interested persons have the right to be involved in appeals brought under the High Hedges (Jersey) Law 2008 and whether the Rule should also be amended to make a High Hedges appeal procedurally the same as a planning appeal, and so subject to a modified procedure too, which has implications for the award of costs.

Background

The High Hedges (Jersey) Law 2008 enables one neighbour to complain about the height of a hedge on their neighbours land to the Minister for Planning and Environment. If the Minister considers the complaint to be justified he can serve a remediation notice on the owner of the hedge. The right to bring a High Hedges appeal depends on whether it is an appeal by the complainant (Article 12) against the Minister's conclusion that the complaint is not justified, or by the owner of the hedge (under Article 13 as recipient of a remediation notice). The complainant must be the owner of domestic or residential property.

Under the existing Royal Court Rules 15/1(2); “planning appeal” means an appeal under Part 7 of the Planning and Building (Jersey) Law 2002 and ‘appellant’ in relation to such an appeal shall be construed accordingly.

A High Hedges Appeal is not an appeal under Part 7 of the P&B Law 2002, and so by definition cannot be a planning appeal for the purposes of RCR 15, and so the special rules for a modified procedure will not apply. It also means that the Court’s Practice Direction for Costs under the Modified Procedure will not be at large.

Appeal made under the High Hedges Law will fall to be considered under the general rule that deals with administrative appeals. A High Hedges appeal will by its very nature affect three parties (the complainant; the hedge owner and the Minister for Planning and Environment). The general Rule for administrative appeals cannot, however, accommodate a tripartite case of this nature presently and would need bespoke provision to ensure that, depending on who is bringing the appeal, notice is appropriately served on the other party (complainant/hedge owner) and; that person then has the opportunity to join in the proceedings at the appropriate time.

Discussion

Law Officers have suggested that the Minister might like to consider expressing a view to the Court that the development and introduction of a Practice Direction for High Hedge appeals, similar to that used for appeals brought under the Planning and Building (Jersey) Law, might be beneficial and appropriate.

In the case of applications, and subsequent appeals (whether brought by the complainant or the hedge owner) under the High Hedges Law the appellant will always be the owner or occupier of residential property and so there is a greater potential for appeals being brought by litigants in person.

Also a high hedges appeal, under the general administrative appeals rules, does not have the benefit of costs protection that the Court's Practice Direction for the modified procedure gives for a planning appeal. This means that unsuccessful parties to the appeal may be liable for costs.

As with the case with planning appeals, there is a need to consider the matter of access to the appeals process and the ability and ease of access to the appeals process for potential appellant’s, as well as the financial risk associated with an appeal to the Court.

Legal and resource implications

The effect of the Practice Direction for the modified procedure in respect of planning appeals is, in most cases, to deprive the successful party from recovering their costs, unless there are exceptional circumstances.

If as a matter of policy the Minister takes the view that High Hedge appeals should be placed on a similar footing to appeals under the modified procedure for planning appeals, then the probability is that the department will not get its costs for most appeals. If the Minister takes the view that he should be in a position to recover his costs whenever he is the successful party, then that may well serve to discourage a would be appellant from exercising their right of appeal.

It is relevant to note that the number of appeals anticipated under the High Hedges Law is considered to be low based on the fact that since the introduction of the Law, in January 2008, there have been eight applications made; one of which has resulted in an appeal (from a complainant, where the complaint was dismissed). Costs borne by the department are those related to officer time in preparing the case for appeal: this work will be done by the Department’s Appeals team, with support from the case officer, where required.

Recommendation

On the basis that High Hedge appeals will likely involve more litigants in person, who may otherwise be discouraged by the nature of the legal procedure for the general Court rules and also by the risk of costs, it is considered beneficial and appropriate, and therefore recommended, that the Minister expresses the view to the Court, through the Law Officers, that

the Royal Court Rules be amended to make a High Hedges appeal procedurally the same as a planning appeal;
the Royal Court Rules be amended to ensure that all interested persons have the right to be involved;
the amended Royal Court Rules for High Hedges be subject to a modified procedure to ensure that interested parties are not normally at risk of costs

Reason(s) for Decision

The Minister does not wish to discourage those who wish to exercise their right of appeal in respect of the administration of the High Hedges (Jersey) Law 2008 by virtue of the Rules of the Court and/or the risk of costs.

Action Required

Notify Law Officer’s of the Minister’s view, with a request that they communicate such to the Court.

Written by:	Kevin Pilley, Assistant Director

Endorsed by:

1/05/02/04