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Waverley Borough Council Committee System - Committee Document

Meeting of the Executive held on 12/07/2005
High Hedges Complaints - Implementation of Part 8 of the Anti-Social Behaviour Act



Summary & Purpose
This report sets out the requirements of Part 8 of the Anti-Social Behaviour Act which came into force on 1st June 2005.

Quality of Life Implications
Natural Resource Use
Pollution Prevention and Control
Biodiversity and Nature
Local Environment
Social Inclusion
Safe Communities
Local Economy
Natural
Resource Use
Pollution
Prevention and Control
Biodiversity
and Nature
Local
Environment
Social
Inclusion
Safe, Healthy
and Active
Communities
Local
Economy
Positive
Positive
Positive
Positive
Positive
Positive
Positive


APPENDIX U
WAVERLEY BOROUGH COUNCIL

EXECUTIVE – 12th JULY 2005

Title:
HIGH HEDGES COMPLAINTS – IMPLEMENTATION OF PART 8 OF
THE ANTI-SOCIAL BEHAVIOUR ACT

[Wards Affected: All]

Summary and purpose:

This report sets out the requirements of Part 8 of the Anti-Social Behaviour Act which came into force on 1st June 2005.

Quality of life implications – social, environmental & economic (sustainable development):

E-Government implications:

Guidance on High Hedges legislation has been provided on the Waverley web-site.

Resource and legal implications:

The resource and legal implications are identified in the report.

Introduction

1. Part 8 of the Anti-social Behaviour Act 2003 includes provisions for the control of high (nuisance) hedges. Following enactment in March 2005 of this part of the legislation, local authorities have been given the responsibility to determine complaints about high hedges. The legislation came into effect on 1st June 2005.

2. The legislation gives responsibility to local councils to determine complaints by the owners/occupiers of domestic property adversely affected by evergreen hedges over 2 metres high. The Council is able to charge a fee for this service to be paid by the complainant. It may also reject the complaint if it considers that insufficient effort has been made to resolve the matter amicably or that the complaint is frivolous or vexatious. Importantly though, the system has been structured as a process of “last resort”.

3. The Council may, if it considers the circumstances justify it, issue a notice requiring the owner or occupier of the land where the hedge is situated to take action to remedy the problem and to prevent it recurring. The Council may issue a “remedial notice” and this may be enforced through criminal prosecutions and/or by the Council entering the land and carrying out the necessary work if the owner or occupier fails to do so.

4. Responsibility for all functions relating to high hedges rests with the full Council rather then the Executive as it is a regulatory activity.

5. The role of the authority is to act as an independent and impartial third party. Its role is not to negotiate or mediate between individuals but to adjudicate on whether the hedge adversely affects the reasonable enjoyment of the complainant’s property. In doing so, they must take into account all views and relevant factors, including the hedge owner’s amenities and that of the wider neighbourhood. It must assess each case on its particular merits. If the Council considers it justified, it may order the hedge owner to remedy the problem by, for example, reducing the height of the hedge and maintaining it at a lower level. The Council can only require works to the hedge that address any problem it is causing. There is nothing in the Act that says nuisance hedges must be cut down to 2 metres. In making a judgement the Authority will use the BRE (Building Research Establishment) formula which aims to provide an objective method for assessing whether high hedges block too much daylight and sunlight to adjoining properties. The procedure is intended to be simple so that anyone can apply the criteria. It involves multiplying the distance from a window to the hedge, or the depth of the garden, by a factor; for gardens this factor depends on hedge orientation. Corrections can be made for site slope or where the hedge is set back from a garden boundary.

6. To date, three complaints have been received but two have been referred for further mediation.

What Complaints Can the Council Consider?

7. The Council can only consider a complaint if it meets certain criteria, i.e.

it must relate to a high hedge as defined in the Act the hedge must be on land owned by someone other than the complainant it must be affecting a domestic property the complaint must be made on the grounds that the height of the hedge is adversely affecting the reasonable enjoyment of the domestic property in question; and it must be brought by the owner or occupier of that property

Fees

8. The Act allows the Council to determine the level of fees. In the initial guidance to Councils, the Government analysed the potential costs of the service and suggested that the maximum cost for dealing with a complaint could be around 340. A survey of other neighbouring districts has found that many will be charging more than this. However, it is recommended that a fee of 340 should be levied and that a review of this charge should be undertaken once a more accurate assessment of the workload involved can be made.

Dealing with the Complaint

9. When the Council receives a complaint it must satisfy itself that sufficient effort has already been made to resolve the matter amicably. In some cases the people concerned might be encouraged to try mediation. Discussions with the local Community Mediation Service have taken place and they are aware of the calls that might be made on their service. Their response has been very positive.

10. If the Council accepts the complaint, a site visit will be carried out and having gathered the necessary information, an assessment will be made about whether there is a problem i.e. whether to accept the complaint, how serious it is and, if appropriate, what action to take.

11. At present, there is no time limit on dealing with complaints and the Government leaflet advises people that it will take at least 12 weeks. However, if it is perceived that the Council is taking too long there is always recourse to Waverley’s complaint procedure or the Local Ombudsman.

12. If the Council rejects a complaint because it does not meet all the requirements there is no specific right of appeal against the Council’s decision. If complainants consider that the Council has not applied the legislation correctly, they can refer the matter to the Council’s own complaints officer or to the Local Government Ombudsman. Complainants also have recourse to the High Court to challenge the decision by judicial review.

13. If the Council proceeds with the complaint it is required to decide two matters:

whether the hedge is, because of its height, adversely affecting the complainant’s reasonable enjoyment of the property. if the height of the hedge is causing problems, consideration must be given to what action, if any, should be taken to remedy the situation and prevent it from recurring. 14. In arriving at the decision, a balance should be struck between the competing rights of neighbours to enjoy their respective properties and the rights of the community in general.

15. If it is decided that action should be taken, a remedial notice may be issued.

Remedial Notices

16. Remedial notices define how the hedge should be managed in order to reflect the Council’s decision. They run with the land and are binding on whoever owns or occupies it. The notice will set a time limit for carrying out the initial action. Failure to comply with the notice can lead to prosecution and a fine.

Appeals

17. There is a right of appeal against the issue, withdrawal or relaxation of a remedial notice. In addition, the complainants can appeal against the decision by the Council that the height of the hedge is not adversely affecting their reasonable enjoyment of their property or against a decision not to take remedial action. The Planning Inspectorate will be setting up a separate team to handle the appeals. All appeals will be decided on the basis of written submissions plus a site visit by the inspector.

Enforcement

18. Failure to comply with the notice is an offence punishable on conviction, of a fine of up to 1,000. It is for each council to determine its policy and approach to enforcing remedial notices. It is acknowledged that most enforcement activity will be reactive i.e. responding to the neighbours’ complaints of alleged failure to comply with the remedial notice.

19. Councils have the powers to enter the land and carry out the works specified in the remedial notice if the owner or occupier fails to comply with its requirements. There is, however, no obligation or requirement to intervene. Costs of intervention can be recovered from the owner or occupier of the land and any unrecovered expenses can be a local land charge. At present, a sum of 10,000 has been allocated from the Planning Delivery Grant to cover the initial costs of intervention.

Suggested Approach

20. The spirit of the legislation is to make the formal complaint process the last resort. If a complaint has reached this far, it is likely that relationships between neighbours will be strained. Also, recognising that there is an appeal procedure for both sides, it is advised that the technical assessment should be as objective as possible and therefore the authority should use the BRE model.

21. In the light of the above, and the limited wider community impact of this legislation, it is recommended that the handling of High Hedges complaints be delegated to the Director of Planning and Development. Other consequent changes to delegation include the issuing of a remedial notice, powers to enter the land, prosecutions and laying of informations. It is also recommended that officers report back in twelve months on the operation of the new controls and any learning points/ revisions.

Costs

22. The initial costs of the service will be contained within the Enforcement Team. However, there is a supplementary estimate for 10,000, which was agreed in 2004/05 and has been carried over into 2005/06, in case any costs arise following a remedial notice requiring direct action.

Recommendation

It is recommended that:-

1. the Council bases its technical assessment of high hedges complaints on the BRE model;

2. a charge of 340 for handling each high hedges complaint relating to one property and 680 for two or more properties be approved, this to be reviewed in accordance with the Council’s review of annual fees and charges; and

3. the Council be recommended to delegate the handling of High Hedges complaints to the Director of Planning and Development and for the Scheme of Delegation to be amended to include authorisation to decide a complaint, to issue a remedial notice, powers to enter the land, prosecutions and laying of informations.

Background Papers (DoP&D)

ODPM – leaflet, "High Hedges: complaining to the Council", and "High Hedges Complaints: Prevention and Cure", Statutory Instruments 2005: 710,711 and 714 and "Hedge Height and Light Loss" report to ODPM by BRE.

CONTACT OFFICER:

Name: Louise Norie Telephone: 01483 523464

E-mail: lnorie@waverley.gov.uk

comms/executive/2005-06/065