Fields 654A and 655, Temple View, St Martin: High Hedge Complaint

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A decision made on 12 November 2010 regarding the upholding of a high hedge complaint

Decision Reference: MD-PE-2010-0117			Application Number: HH/2009/2220
Decision Summary Title :	Fields 654A & 655, Temple View, La Rue des Marettes, St. Martin		Date of Decision Summary:		09/11/2010
Decision Summary Author:	Planner – L. Davies		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)		Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:		Planner – L. Davies
Written Report Title :	Fields 654A & 655, Temple View, La Rue des Marettes, St Martin		Date of Written Report:		03/11/2010
Written Report Author:	Planner – L. Davies		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)		Public
Subject: Fields 654A & 655, Temple View, La Rue des Marettes, , St. Martin, , Reduction in height of a hedge row of Holm Oak trees along the northern boundary of Fields 654A & 655, St. Martin
Decision(s): Uphold the High Hedge Complaint in respect of the hedge along the roadside boundary of Field 654A. On 05/11/2010 the Minister considered a departmental report which had been updated to reflect the additional details received since the previous public Ministerial meeting of 28/05/2010. The additional background papers were attached to this report. On 05/11/2010 the Minister also undertook a site visit accompanied by the case officer. Thereafter, having regard to all material considerations, the Minister resolved to uphold the high hedge complaint and to require that remedial action be undertaken, in respect of the hedge along the roadside boundary of Field 654A, in accordance with the department’s recommendation. The following action is to be required: a) Initial action The Minister requires the following steps to be taken in relation to the hedge before the end of the period specified in paragraph 4 below: Reduce the height of the Holm Oak trees (the hedge) along the roadside boundary of Field 654A to a height not exceeding 7.0 metres above ground (tree base) level along the whole of its length along the roadside field boundary; b) Preventative action Following the end of the period specified in paragraph 4 below, the Minister requires the following steps to be taken in relation to the hedge: The hedge shall be maintained along its length at a height not exceeding 8.0 metres above ground (tree base) level. The initial action specified above must be complied with, in full, within three months.
Reason(s) for Decision: The Minister adjudged that the hedge along the roadside boundary of Field 654A, by virtue of its height, adversely impacts upon the complainants’ reasonable enjoyment of their property for domestic purposes.
Resource Implications: Potential third party appeal
Action required: Notify Agent, Applicant and all other interested parties
Signature: Senator F E Cohen		PLeg / PT Initials		Position: Minister for Planning and Environment
Date Signed:				Date of Decision (If different from Date Signed):

Fields 654A and 655, Temple View, St Martin: High Hedge Complaint

Planning and Environment Department

Planning and Building Services

South Hill

St Helier, Jersey, JE2 4US

Tel: +44 (0)1534 445508

Fax: +44 (0)1534 445528

Planning and Environment Department

Report

This High Hedge Complaint was originally considered by the Minister at a public Ministerial meeting on 28/05/2010. The Minister resolved to defer his decision on the matter in order to allow both parties to make further submissions. In addition, the department were requested to arrange for further sunlight analysis drawings to be prepared. All of this further information has now been received and the report has been amended and updated on this basis.

Application Number

HH/2009/2220

Site Address	Fields 654A & 655, Temple View, La Rue des Marettes, St. Martin

Complainant	Mrs W Lees, Lynton, Rue des Marettes, St Martin

Hedge Owner	Mr M W Brimacombe, Temple View, La Rue des Marettes, St. Martin

Description	Reduction in height of a hedge row of Holm Oak trees along the northern boundary of Fields 654A & 655.

Type	High Hedge Application

Date Validated	01/12/2009

Zones	Countryside Zone Building Of Local Interest (Lynton & Temple View)

Summary/

Conclusion

This is a High Hedge complaint relating to a row of Holm Oak trees which are located on a roadside bank of Fields 654A & 655 on the southern side of La Rue des Marettes in St Martin. At their highest, the trees reach a height of around 16.8m above road level.

The department accepts the arguments made by the complainants in respect of those trees along the boundary of Field 654A, namely that these trees (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 hedge along the roadside boundary of Field 655, the department does not believe that this hedge has an unreasonable impact upon the complainants’ property, and therefore recommends that no action be required.

Further Comments subsequent to meeting of 28/05/2010

The department is mindful of the additional information which has been submitted, since the public Ministerial meeting of 28/05/2010, from the owner of the hedge. However, having regard to all material considerations, the department stands by its previous recommendation that the hedge be cut back.

Officer

Recommendation

In line with the report from the Chartered Surveyor, the department recommends that a Remedial Notice be issued, requiring an initial reduction in the height of the Holm Oak trees (‘the hedge’) to the roadside boundary of Field 654A only to 7m; thereafter, the hedge should be maintained at a maximum of 8m. This should be undertaken within 3 months of the Remedial Notice taking effect.

Site Description	Lynton (the complainants’ property) is a traditional Jersey property located on the north side of La Rue des Marettes in St Martin. The trees which are the subject of this complaint, a row of Holm Oaks, are located on the roadside bank on the southern side of the road along the boundaries of both Field 654A & Field 655. At their highest, the trees reach a height of around 16.8m above road level with the tree canopy overhanging the road.

Complainant’s Case	In their covering letter submitted with the application (dated 24/11/2009), the complainants state that the trees have caused them (Mrs Lees and her husband) considerable stress over the 30 year period during which they have resided at Lynton. Over the years, the complainants state that they have made a number of approaches to the owner of the trees, Mr Brimacombe, requesting that they be cut back; for instance in 1984 and more recently in 2006; however, no action has been undertaken. The complainants state that the trees have increased greatly in height and density with the result that “they are now horribly overbearing and deprive us of a great deal of light and sunshine on both our house and garden”. Accordingly, they believe 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. Three other letters of support have also been received, two from adjacent neighbours on either side of Lynton, the other from the complainants’ daughter; these letters reiterate the same points as above. Further Submissions subsequent to meeting of 28/05/2010 Two additional letters have been submitted by the complainant dated (01/06/2010 and 25/07/2010) which largely reiterate the arguments already made. The second of these letters was written in response to Mr Brimacombe’s further submission (see below), questioning the relevance and accuracy of some of the comments made therein. An additional letter of support has also been received (dated 07/06/2010). These additional letters are included within the background papers.

Hedge Owner’s Case	The owner states that the trees in question have a general beneficial impact on the neighbourhood generally (both environmentally and in terms of the character of the area). Following the 1987 hurricane, which resulted in the loss of a number of trees, they worked hard at replacing them, and they would very much regret the loss of more mature trees. It is suggested that Mrs Lees has never specified which trees are the cause for concern. The trees form part of a long-established double row of specimen trees which line the driveway to Temple View. The owners state that they recall speaking with Mr and Mrs Lees, prior to their purchase of Lynton, pointing out to them that Lynton was both low-lying and already shaded by the trees. Mr Lees is said to have stated that he was quite happy with this situation, and indeed the purchase went ahead. The trees provide the owners with privacy and contribute to their enjoyment of their property by reducing noise and pollution from the road. They also contribute a number of important environmental and ecological benefits i.e. helping carbon reduction, improving rural character and providing wildlife habitats. Finally, it is suggested that the Holm Oaks do not in fact form an impenetrable barrier to light, particularly at lower levels. However, were they to be reduced in height, then this would likely result in more vigorous growth at lower level resulting in a more solid appearance below this height. Further Submissions subsequent to 28/05/2010 meeting Mr Brimacombe has since submitted a very substantial document in support of his case. This contains a legal opinion in respect of the applicability of the High Hedge Law in this instance which concludes that, having regard to all relevant considerations, the complaint is not justified in this instance. A report is also submitted from Mr and Mrs Brimacombe which states that the department’s recommendation should be overturned and the complaint dismissed on several grounds. These grounds are clearly set out within the report. As part of this document, a set of detailed topographical land survey drawings have been submitted (survey commissioned by Mr Brimacombe), together with further evidence including photographs, a report on red squirrels from the JSPCA, a tree report from Jersey Trees for Life, a bat survey from the Jersey Bat Group, an earlier letter from Jersey Trees for Life (dated 12/12/2008) in connection with their Jersey Hedgerow Campaign, and also a letter from Geoffrey Wills Associates Chartered Surveyors. A full copy of this document has been included within the background papers.

Consultations	Principal Ecologist (Environment Division) – 09/12/2009 Holm Oaks are of little value for wildlife and that these trees do not form an essential part of a squirrel wildlife corridor. Reduction would not significantly reduce the wildlife value of these trees, although it is a standard requirement that anyone working on trees checks for signs of nests or squirrel dreys prior to commencing work. Independent Surveyor (Mr B Livesey of NSJ Chartered Surveyors) – r’ced 24/12/2009 The hedge is approximately 16.8m in height above road level and has an effective length of 31.5m Using an established methodology, the Surveyor provides two figures. For the purposes of improving the outlook and amenity of the complainants’ garden, he concludes that the hedge should be reduced in height so that it is no higher than 7.90m above road (datum) level. For that part of the hedge affecting the complainants’ gable-end window, the maximum hedge height should be 2.865m above road (datum) level. States’ Arboricultural Officer – email 20/04/2010 Species of Hedge: Holm Oak (Quercus Ilex). Other trees nearby, including Sycamore (Acer Pseudoplatanus) and Horse Chestnut (Aesculus Hippocastanum), should not be considered under this application. Contribution to Public Amenity: The trees are of a moderate to high amenity. Health and Vigour: The majority of the hedge is in good health, although there are some small pockets of decay where branches have been removed in the past. Holm Oaks do not support much wildlife although the ivy covered trunks may well do. Potential for height reduction: The species is very good at responding to heavy pruning and the health of the trees would not suffer unduly. It is estimated that the trees would re-grow at around 6 to 12 inches per year following pruning. However, maintaining the trees at the required height would have a permanent effect on their amenity value. In the opinion of the States’ arborculturalist, this hedge in this area is not necessarily what the High Hedges Law was designed to deal with i.e. it is not a Leylandii hedge growing in a small restricted garden. That said, it does fall within the definition of a High Hedge, as set out within the law, and therefore it can be considered. A further meeting was held on site (04/05/2010) between the case officer and the arborculturalist to discuss in more detail the extent of any pruning which would be reasonable. All consultations are attached with the background papers

Appraisal / 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 Holm Oak trees along the northern roadside boundary of Field 654A do 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 complaint also extends to requesting that the trees along the northern roadside boundary of Field 655 be similarly cut back. The department considers that these trees have far less of an impact upon the complainants’ property and, therefore, no action will be recommended in respect of these trees. The department accepts that the trees within Field 655 might have an adverse impact upon the neighbouring property Auvergne to the south-east of Lynton (indeed, this has been suggested as within the application); however, the impact upon other properties cannot reasonably considered as part of this application. Further information received subsequent to 28/05/2010 meeting In addition to the further submissions from both the complainant and the owner of the trees, the Department has also commissioned a series of solar path analysis drawings which are designed to demonstrate, in graphic format, the shadowing effect of the trees in question upon Lynton. These drawings, which were overseen by NSJ Surveyors and prepared by a local architectural practice (using the survey information provided by Mr Brimacombe), show the shadowing of Lynton at four times during the day (10am, midday, 2pm and 4pm) on 3 days of the year (Spring Equinox, Summer Solstice and Autumn Equinox). In the department’s view, these drawings serve to illustrate the significant shadowing effect of the trees.

Officer Recommendation	In line with the report from the Chartered Surveyor, the department recommends that a Remedial Notice be issued, requiring an initial reduction in the height of the Holm Oak trees (‘the hedge’) to the roadside boundary of Field 654A only to 7m; thereafter, the trees should be maintained at a maximum of 8m. This should be undertaken within 3 months of the Remedial Notice taking effect.

Remedial Notice Conditions	1. Initial Action Reduce the height of the Holm Oak trees (‘the hedge’) along the roadside boundary of Field 654A to a height not exceeding 7 metres above road level along the whole length of this roadside field boundary. 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 hedge shall be maintained such that at no time does it exceed a height of eight 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.

Background Papers	1:2500 Location Plan Further submissions from complaint subsequent to meeting of 25/05/2010 Further submissions from high hedge owner subsequent to meeting of 25/05/2010. Copies of solar path analysis drawings

Endorsed by:

Date: