This Memorandum refers to the High Hedges Bill as amended at further consideration stage in the Northern Ireland Assembly on 7 March 2011 (Bill 15/09)
HIGH HEDGES BILL
EXPLANATORY AND FINANCIAL MEMORANDUM
INTRODUCTION
1. This Explanatory and Financial Memorandum has been prepared by the Department of the Environment in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require an explanation or comment, none is given.
BACKGROUND AND POLICY OBJECTIVES
3. There is currently no legislation in place in Northern Ireland which deals with high hedge problems.
4. The Bill will introduce a system to encourage high hedge problem issues to be resolved through neighbourly discussion or mediation, and failing that, the facility for persons alleging that they are suffering detriment due to a neighbouring evergreen/semi-evergreen high hedge to lodge a formal complaint with their local council.
5. In relation to complaints, the role of the council will be to act as an independent and impartial third party. It will not negotiate or mediate between individuals but will adjudicate on whether the hedge is adversely affecting the complainant’s reasonable enjoyment of their property.
6. Where a council considers that a person has made reasonable attempts to resolve a problem informally and that the hedge in question is having an adverse impact on their enjoyment of their property it may issue a Remedial Notice, requiring the hedge owner to prune and/or reduce the height of the hedge.
7. The Bill provides powers for councils to carry out work in default where appropriate, creates offences for non compliance with Remedial Notices and enables hedge owners and complainants to appeal against council decisions.
8. The creation of a formal system - which could potentially result in a hedge owner having to comply with a Remedial Notice - should encourage people to resolve high hedge disputes informally through discussion and compromise.
CONSULTATION
9. The policy proposals underpinning the Bill were developed in a public consultation conducted by Planning Service in 2005. The consultation process highlighted broad support for a legislative solution to provide a means of redress for people who allege detriment because of a high hedge on a neighbour’s land.
10. The Department conducted a public consultation process on the draft Bill between December 2009 and March 2010. Over 100 responses were received indicating broad support for the policy outlined.
11. Regulations to deal with a fee transfer mechanism will be subject to public consultation before being laid in draft before the Assembly.
OPTIONS CONSIDERED
12. Two options were considered in relation to the High Hedges Bill, namely:
- Option 1- Do nothing.
- Option 2 – Implement a High Hedges Bill.
13. Option 1 was discounted because existing procedures have failed to resolve hedge disputes and are unlikely to prove any more effective in the future. Therefore it was considered that there was a compelling case for the development and implementation of a legislative solution to the problem.
OVERVIEW
14. The Bill contains 21 clauses.
COMMENTARY ON CLAUSES
Comments are not given where the wording is self explanatory.
Clause 1 - Complaints to which this Bill applies
This clause sets out the circumstances in which a complaint could be made - a complaint must be made by the owner or occupier of a domestic property, on the grounds that their reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person. Complaints about the effects of roots are specifically excluded (subsection (4)).
Clause 2 - High Hedge
This clause defines a "high hedge” for the purposes of this Bill as a barrier to light formed wholly or predominantly by a line of two or more evergreen or semi-evergreen trees or shrubs which rise to a height of more than two metres above ground level. Where the existence of gaps in a hedge above two metres significantly impacts on its overall effect as such a barrier, complaints will not be eligible for consideration by the council.
The definition of high hedge excludes any trees contained within a forest or woodland (of size greater than 0.2 hectares). Therefore complaints cannot be made under this Bill in relation to the negative effect of any such trees on domestic property.
Clause 3 - Procedure for dealing with complaints
This clause sets out the procedure by which councils will process complaints. A complaint must be made to the local council whose area contains the land on which the hedge is situated. Complaints must also be accompanied by a fee if a fee has been set by the council.
A council may reject the complaint if it considers that the complainant has not taken all reasonable steps to resolve the matter without involving it, or if it considers that the complaint is frivolous or vexatious. If the council decides, on this basis, not to proceed with the complaint, it must inform the complainant as soon as is reasonably practicable and must explain the reasons for its decision.
Where the council proceeds with the complaint, it must decide in the first place whether the height of the high hedge is adversely affecting the complainant's reasonable enjoyment of their property. If so, the council must then consider what, if any, action is required to be taken in relation to the hedge in order to remedy the adverse effect and to prevent it recurring.
The council must, as soon as is reasonably practicable, inform the parties of its decision and the reasons for it. If the council decides that action should be taken, it must also issue a remedial notice.
Clause 4 – Fees
Clause 4 requires the Department to legislate to limit the level of fee that can be levied by a council for dealing with a high hedge complaint. It requires a council to refund any complaints fee when a remedial notice takes effect. Clause 4 also provides for legislation to be introduced to detail the mechanism by which a council can then recover a fee from the hedge owner.
Clause 5 - Remedial Notices
Clause 5 specifies what detail may be contained in a Remedial Notice issued by a council. The remedial notice must specify the hedge it relates to; that the council has decided that the height of the hedge is adversely affecting the complainant’s enjoyment; what action is required to be taken in relation to the hedge in order to remedy the adverse effect and by when; what further action, if any, is required to prevent recurrence of the adverse effect; what date the notice takes effect; and the consequences of failure to comply with the requirements of the notice.
The action specified in a remedial notice may not involve reducing the height of the hedge below 2 metres, or its removal. A remedial notice will take effect from its operative date which will be specified in the notice and will be within 28 days of the issuing of the notice.
The operative date and compliance period of a remedial notice will cease to have their normal effect under circumstances where an appeal has been made or a remedial notice has been withdrawn or been relaxed with regard to certain requirements.
While the remedial notice is in force, the council will register it as a statutory charge on the property on which the hedge is situated. In addition, the notice is binding not only on whoever is the owner or occupier of the land at the time it is issued but also on their successors.
Clause 6 - Withdrawal or relaxation of requirements of remedial notice
This clause provides a council with the power to withdraw a remedial notice or waive or relax its requirements. This can be done either before or after a remedial notice has taken effect. If it does, subsection (3) requires that the council must notify every complainant and the owner/occupier of the neighbouring land. The withdrawal of a remedial notice does not prevent the council from issuing a further remedial notice in respect of the same hedge.
Clause 7 - Appeals against remedial notices and other decisions of councils
This clause provides the power for a complainant or the owner/occupier of neighbouring land to appeal against the issuing, withdrawal or relaxation of the requirements of a remedial notice. Appeals should be made to the Northern Ireland Valuation Tribunal and an appeal can be made by every person who is a complainant in relation to the notice and every person who is the owner or occupier of the neighbouring land.
A complainant may appeal against the decision of a council, where the council has decided that the height of a hedge is not adversely affecting the complainant’s reasonable enjoyment of their domestic property or that no action should be taken to remedy the adverse effect. Appeals must be made within 28 days of the relevant date or a later time as allowed by the Northern Ireland Valuation Tribunal. The effect of a remedial notice or withdrawing or relaxing of a remedial notice will be postponed pending the outcome of an appeal.
This clause also provides a power for the Northern Ireland Valuation Tribunal Rules of Procedure to be amended with respect to the procedures required to be put in place to enable the Tribunal to process High Hedge appeals, and appeal fees to be set and other ancillary matters.
Clause 8 - Determination or withdrawal of appeals
This clause provides the Northern Ireland Valuation Tribunal with the power to allow or dismiss an appeal, either in total or in part. The Tribunal can also correct any defect, error or misdescription in the original remedial notice if it is considered this will not cause injustice.
Notification of any decision made regarding appeals should be provided to the complainants, owner/occupier of neighbouring land and the relevant council and, where appropriate, should be accompanied by copies of any remedial notice it issues, varies or corrects.
Where an appeal is withdrawn the operative date will be the date on which the appeal is withdrawn.
Clause 9 - Powers of entry (for the purpose of complaints or appeals)
This clause provides persons authorised by the councils and by the Northern Ireland Valuation Tribunal to enter the land on which a high hedge is situated in order to carry out their functions under the Bill. The council will have to determine whether a complaint is justified, and subsequently whether to issue, withdraw or waive a requirement of such a notice and to ensure compliance. The Northern Ireland Valuation Tribunal in determining appeals will have to gather information on which to base its decision.
Any person exercising the powers conferred by this clause must give 24 hours' notice of their intended entry and, if requested at any stage, to produce evidence of their authority. Such persons may bring with them any equipment or persons as required to gather information and to take samples of the hedge involved in the case. If the land is unoccupied, authorised persons must leave it as effectively secured as they found it. Intentionally obstructing a person exercising these powers is an offence, punishable on summary conviction by a fine not exceeding level 3 on the standard scale.
Clause 10 - Offences
Clause 10 makes provision for any failure to comply with a remedial notice within the compliance period or the period specified for any preventative action to be undertaken, to be a criminal offence punishable on summary conviction by a fine not exceeding level 3 (currently £1,000) on the standard scale. Every owner or occupier of the neighbouring land will be guilty of the offence.
Possible defences for those guilty of an offence under subsection (1) will exist where such a person can demonstrate that they did everything that could be reasonably expected of them to comply with a notice. Furthermore subsection (4) provides another defence if the person can show that they were not sent a copy of the remedial notice and did not have knowledge of the notice.
If a person is the owner of the neighbouring land on which the hedge is situated and the remedial notice is registered as a statutory charge they will be assumed to have had knowledge of it.
Powers are also provided for the courts, in situations where non compliance with a remedial notice is continuing, with powers to order the person to take the necessary action to ensure compliance with the notice. This order may be in addition to any other punishment and will set a fixed period in which the steps should be taken. A person, without reasonable excuse, who fails to comply with the order, will be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale. Daily fines may be imposed (not exceeding one-twentieth of level 3 fine) if the requisite work continues to remain outstanding following the offence committed under subsection (8).
Clause 11 - Power to require occupier to permit action to be taken by owner
This clause allows a court, in cases where it appears that the occupier is preventing the owner carrying out remedial work, to order the occupier to permit the owner of the land to comply with and take action in respect of a remedial notice.
Clause 12 - Action by council
This clause gives the council power to enter the neighbouring land and carry out the works specified in the remedial notice, if the owner or occupier of the land fails to comply with its requirements. It will be open to the council to exercise these powers whether or not criminal proceedings are brought under clause 11.
Subsections (2) and (3) provide the council with the power to carry out the required work and then recover the costs of this work from the owner or occupier of the land. Any unpaid expenses would (until recovered) be registered as a statutory charge on the land on which the hedge is situated.
Under subsection (4), should the expenses be recoverable from two or more people, those people will be equally liable.
Any persons exercising the powers conferred by this clause must give 7 days notice of their intended entry and, if requested at any stage, must produce evidence of their authority. Such persons are also authorised to bring with them any equipment, vehicle or persons as required to gather information and to take samples of the hedge involved in the case. If the land is unoccupied, subsection (8) requires such persons to leave it as effectively secured as they found it. Intentionally obstructing a person exercising these powers is an offence, under subsection (9), punishable on summary conviction by a fine not exceeding level 3 on the standard scale.
This clause also provides a council with protection against liability in situations where it has performed remedial action in default and, despite it having taken due care and taken expert advice, a hedge subsequently dies.
Clause 13 - Offences committed by a body corporate
Where offences are committed by bodies corporate, proceedings may, in certain circumstances, be taken against individual officers as well as against the body corporate.
Clause 14 - Service of documents in electronic form
This deals with delivery of documents in electronic form. In particular, subsection (1) prevents the use of electronic communications for sending copies of a remedial notice (issued under clause 4).
Other documents under this Bill may be delivered electronically if the recipient has agreed to an electronic address and the electronic form for the document. In such circumstances subsection (4) specifies that such documents will be considered to have been delivered at 9 am on the working day following the day on which it is transmitted.
Documents can be made available on a website if the recipient has agreed to this, and is notified when the document is on a website and given details of the address and place on the website at which it can be obtained. As is the case with documents transmitted electronically and by virtue of subsection (6) the document will be treated as delivered at 9 am on the working day immediately following the day on which the recipient is notified of the presence of the document on the specified website.
Subsections (7), (8) and (9) give the Department the power to make Regulations amending the provisions about the delivery of documents in electronic form.
Clause 15 - Statutory charges
This clause amends Schedule 11 to the Land Registration Act ( Northern Ireland) 1970.
Clause 16 - Interpretation
This clause provides definitions for specific terms used throughout the Bill.
Clause 17 - Power to amend sections 1 and 2
This clause gives the Department the power to extend the scope of complaints covered by this Bill (under clause 1) and to alter the definition of 'high hedge' (in clause 2) through Regulations. Such Regulations, under clause 19(2) would have to be laid before and approved by resolution of the Assembly.
Clause 18 - Application to the Crown
This clause applies the provisions to the Crown. Crown employees (but not the Crown itself) will be liable to prosecution for a criminal offence under this Part. A council will be able to investigate and determine complaints about high hedges on Crown land, for example a hedge on land owned by a Government Department may be affecting neighbouring domestic property.
Clause 19 - Regulations and orders
This clause sets out the procedure by which Regulations may be made under this Bill. Subsection (1) establishes that Regulations made under this Bill will be subject to negative resolution except for those identified in subsection (2) (i.e. those relating to electronic document delivery, extending the scope of complaints or amending the definition of a ‘high hedge’ and fees) which must be laid before and approved by resolution of the Assembly.
Clause 20 - Commencement
This clause specifies that the Bill will come into operation on the day appointed by the Department through a commencement order.
Clause 21 - Short Title
This clause specifies the name of the Bill.
FINANCIAL EFFECTS OF THE BILL
15. The cost of implementing the Bill (as introduced), consisting mainly of the production of guidance and a contribution to the Department of Finance and Personnel of to cover the cost of appeals, has been estimated to be in the region of £25,000.
16. The effect on the public purse of the annual running cost will be offset to a greater or lesser degree by the fee income from complainants, hedge owners and appellants. Complaints fees are a matter for the councils although the Department will set a maximum amount. Where a council issues a remedial notice, it must refund the fee and then charge the same amount to the hedge owner. Appeal fees will be in line with Planning Appeal fees and will be a matter for the Valuation Tribunal to process.
HUMAN RIGHTS ISSUES
17. The provisions of the Bill (as introduced) are considered compatible with the Human Rights Act 1998.
EQUALITY IMPACT ASSESSMENT
18. Under the terms of section 75 of the Northern Ireland Act 1998, the Department carried out screening for equality impact and is satisfied that the provisions in the Bill will not lead to discriminatory or negative differential impact on any of the section 75 groups.
SUMMARY OF THE REGULATORY IMPACT ASSESSMENT
19. The Bill (as introduced) has been assessed to determine any regulatory impact and it is considered that it will have a minimal impact on businesses, charities or on the community and voluntary sectors. Provisions identified which may create an impact for the general public are those relating to the fees for complaints and appeals as well as costs associated with remedial action. The intention, however, is to keep any fees as reasonable as possible. The Regulatory Impact Assessment can be viewed at www.doeni.gov.uk/high_hedges_2.htm.
20. The cost associated with any fee transfer mechanism has not been estimated as this did not form part of the public consultation on a High Hedges Bill. However, this will place additional financial costs on the ‘hedge owner’ and will increase the administrative costs to local councils.
LEGISLATIVE COMPETENCE
21. The Minister of the Environment had made the following statement under section 9 of the Northern Ireland Act 1998:
“In my view the High Hedges Bill would be within the legislative competence of the Northern Ireland Assembly.”
22. The Attorney General has confirmed that the Bill (as introduced, along with the amendment to require the Department to limit the level of complaints fee) is within the legislative competence of the Northern Ireland Assembly.
SECRETARY OF STATE CONSENT
23. The Secretary of State had consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill.