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High Hedges Bill [HL]

6.1 p.m.

Baroness Gardner of Parkes: My Lords, I beg to move that this Bill be now read a second time.

For some years I have brought the subject of high hedges before the House. I introduced my first Bill to alleviate the hardship and suffering of "hedge victims" in 2000. At the time, I hoped that a small simple Bill, dealing with the problem as a statutory nuisance under the Environmental Protection Act 1990, would provide a quick and easy answer. The Bill received all-party support in your Lordships' House but fell in the Commons. In 2001, I worked with John Taylor, who brought his Bill to the Commons. It passed all stages in this House and we hoped that it would also pass in the Commons on the last day before the general election. I pay tribute to the noble Baroness, Lady Farrington, for her help and support in the matter. Rather sadly, it was talked out. I say "rather sadly", as the one good thing about that is that it enables us to improve on the Bill.

As presented today, the Bill is almost identical to John Taylor's Bill. I find that it fails to provide wide enough grounds on which a complaint can be made and considered. The Bill is presently tied in to a specific light issue, and the difficulties and disadvantages of those on the shady side of such hedges are much more

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than just loss of light. Reduction in property value, damage to buildings and loss of proper use of gardens for plant growing and recreation are some of the other losses of amenity. I hope that your Lordships will share this view and support my intention to bring forward the necessary amendments in Committee to cover these other aspects.

On the front page of The Sunday Times of 8th December 2002, I saw the news that Stephen Pound, who drew a place in the ballot for Private Members' Bills, is to bring forward a Bill on this same subject and,


    "ministers have agreed to allow time for a private member's Bill to go through. With backing from the Department of Transport, Local Government and the Regions, led by John Prescott, the Deputy Prime Minister, the Bill is certain to become law, according to government business managers".

Stephen Pound has drawn 14th place in the ballot, which would not normally be a very hopeful position, but it seems that he will be getting special treatment to ensure that the Bill becomes law. That is good news as far as I am concerned. I am not interested in getting glory for the result, but I want to see the reality of a new law that helps those affected so adversely by high hedges. If the Government are making special time available, as seems to be the case, I am slightly puzzled as to why they do not make it a government Bill.

If, as I understand is the case, my Bill is almost the same as the proposed Commons one, I am pleased that your Lordships' House is able to consider the matter early and, in our usual way, in detail. In that way, we may make improvements by adding to the Bill, by altering parts in Committee. The timing of publication of the Commons Bill is such that it should be possible for Stephen Pound to include in his Bill any widening of grounds of complaint or other amendments that have been fully supported in this House. That would mean that the work we are doing here would be of great benefit to him.

My Bill is clear and self-explanatory. As we have debated the subject so many times in this House, I do not intend to go through it in detail. The aim of the legislation is to provide a formal complaint procedure for those suffering a hedge problem and to empower the local authorities to assess the situation. They will decide whether the complaint is justified and, if so, make an order for appropriate action to be taken. As a last resort, local authorities will be able to act to reduce the hedge and bill the owner for the work done.

As a first step, and prior to making a complaint, the affected party will have to mediate—that is, contact the offender and try to resolve the matter by agreement. Past debates have made clear that this has proved unsuccessful in most cases, as there were no sanctions if the offender simply refused to consider action. I remember the contribution of the noble Lord, Lord Graham, on that point. I am convinced that with legislation as a back up there will be a great incentive to reach agreement with one's neighbours and mediation will be more successful, saving further action in most cases.

The press has given some readers the impression that nothing over two metres will be allowed as a hedge height. It is important to clarify that point. Anyone can erect a

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fence or wall to a height of two metres without planning permission. It is to match that planning law that two metres is, in the Bill, the height that is permitted without query. That is enough to provide ground floor to ground floor privacy between houses.

Members of your Lordships' House have spoken to me in the past few days about their concern that they will not be allowed a hedge that is higher than two metres, but that is not the case. A hedge of massive height could be unobjectionable if it was sited in a position where it had no effect on an adjoining property.

One noble Lord explained to me that he has a hedge of trees that is 25 feet high, which he has repeatedly trimmed over the years to suit his neighbour. He has always had this done at his own expense. In such a case, when there is already a satisfactory relationship between neighbours, there will be no change. It is important that the Bill should not cause unnecessary anxiety, which is why I mention that. The fact that local authorities have a discretion means that all existing circumstances will be taken into account. Under Clause 4(2)(b), they could decide that a complaint should not be proceeded with.

When the consultation document entitled High Hedges: Possible Solutions was published in November 1999, more than 3,000 replies were received by the end of the consultation period on 31st January 2000. It was an exceptionally high response, and it took months to analyse the replies. On 10th August 2002, Michael Meacher stated that 94 per cent of the replies were in favour of legislation.

A new difficulty that has been brought to my attention is that home owners are being asked to carry an excess of 2,500 on their household insurance for any problem related to a hedge problem. That may be a result of the Delaware Mansions and Westminster City Council case, in which the council was held liable for its refusal to deal with the tree root problem at a cost of 14,000 for repairs, and had to meet the full restoration cost of 570,000 and legal fees of 500,000. The cost came to a total of more than l million for just one tree. The case established the liability for damage by invasive roots to a neighbouring property, and for that reason would apply equally to root damage by a hedge. It may be for that reason that insurers are targeting people with hedges, or people with hedges adjoining their property.

As I drive around the countryside, I notice that public awareness of nuisance hedges has grown remarkably. Many tall conifer hedges are now being trimmed, to the benefit of neighbours on the shady side. No one on the sunny side ever complains, and they are often not even aware of the difficulty on the other side. A few hedges have been planted deliberately and maliciously to damage an adjoining property, but that is rare. In most cases, people who planted hedges—commonly known as leylandii, although the Bill covers any species—were quite unaware of the speed and height of the growth. I received an excellent note of response from the Royal Horticultural Society today, which makes it clear that the easiest and best solution is to plant the right hedge and never face a problem.

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Many plant nurseries and individuals are taking note of those recommendations. The RHS supports legislation. Apart from listing more than 20 varieties of possible hedges, it makes the point that,


    "hedges are often not a suitable solution for garden boundaries under modern conditions",

and it,


    "urges gardeners to consider fences where there is no commitment to long term hedge care and size restriction".

Many concerned people have asked me what is defined as a hedge—they may have a ragged group of hedging or just four or six trees that are causing them trouble. Clause 2 defines a hedge as,


    "two or more adjacent evergreens",

and adds that,


    "despite the existence of any gaps",

it may still qualify as a hedge.

Under Clause 4(2) the local authority will have the right to decide that the complaint should not be proceeded with if there has been no attempt to mediate or if the complaint is "frivolous or vexatious". There are long histories of hedge battles continuing for 20 years or more, and I believe that some of the parties have shown that they can spin the time out for an undue length. There should be some sanction against those deliberately trying to obstruct the process by the unreasonable use of appeal procedures.

In the debate on this subject reported at column 1094 of Hansard of 24th November 2000, I drew attention to an unreasonable case in which the offending party was ordered to pay costs of 20,000. As that person was legally aided the costs were entirely met by the taxpayer. In such a case, which will cost nothing to the offending person, the offending party has no disincentive to carry on with the case, whatever the cost.

I therefore consider that there should be a "frivolous or vexatious" condition attached to the appeal procedure. I would be interested to hear from the Minister whether he believes that that should be dealt with in the Bill or in regulations.

In moving this debate, I put this Bill not only before this House but before the public for full consideration. If the Bill is given a Second Reading today, the Committee stage would probably take place on 9th January 2003, just two days after the House returns from the Christmas Recess. Amendments can be tabled on 7th and even on 8th January and I would welcome suggestions for those, at an early date, from interested parties. I suggest that they write to me or the department or both to make their views known, so that those points can be given full and careful consideration. Obviously, I cannot guarantee to act on each and every comment but if a body of opinion makes it clear that there is concern about something in the Bill, or some omission, I would seek to move the appropriate amendment. Of course, amendments from other Members of the House would be welcome.

The Bill will be of great help to hedge victims and I ask your Lordships to give it a Second Reading. I commend the Bill to the House.

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Moved, That the Bill be now read a second time.—(Baroness Gardner of Parkes.)

6.13 p.m.

Lord Graham of Edmonton: My Lords, I begin with an apology. I had to leave in the middle of a very important meeting upstairs—it was not as important as these proceedings, of course—but I will have to get back to it, for which I apologise.

I congratulate the noble Baroness, Lady Gardner of Parkes, on her persistence. This is one of those infuriating things: the Bill should be known as the "number 11 omnibus" Bill because one waits for a long time and then two turn up at the same time. That is not an inappropriate comment in view of the previous profession of Mr Stephen Pound. Wherever he is—he can hear me now—he must be laughing.

We are in a marvellous situation. The noble Baroness, Lady Gardner, has persisted in this regard. I also thank my noble friend Lady Farrington. For a long time there has been sympathy, understanding and a willingness to act, although there have been problems. If anyone thinks that when this Bill—or any Bill—has completed its passage through both Houses, it will solve the problem, they have another think coming. We are dealing with people, property and a community. I assure noble Lords that the Bill is most welcome.

Mr Tony McNulty, the junior Minister at the department, was kind enough to receive a small deputation from a hedge abuse organisation led by Clare Hinchliffe, who played a leading role; previous responsibilities were carried out by Mr Michael Jones. We have much assistance in terms of services and facilities—telephones, typewriters and many other things—but out there many people (I shall not exaggerate by referring to thousands) spend all their spare time being a post box for complaints. They are on the telephone and providing help. In an ideal world, these problems would not arise; when they do we are seeking to provide legislative back-up in this parliamentary Session.

When I bought my house about 12 years ago in Loughton, in the middle of Epping Forest, I wondered whether I should get the hedges cut down. Next to my house there was a big fence. When I made inquiries of my neighbours, they said, "It is no good going round to the other people. We have been round before and they simply told us to get lost". However, I did go round but the owners had changed and the new man had a different attitude. Within a month, he had a man there lopping the tops down substantially.

We should speak to our neighbours, be patient and have a spirit of compromise. Mr McNulty, speaking guardedly—as he has to do—said that if an opportunity occurred via the Private Member's Bill route, we should use it. That has happened. We are in the wonderful situation that with collaboration between both Houses—in particular, between the noble Baroness, Lady Gardner of Parkes, and Mr Stephen Pound—I am sure that eventually a Bill will reach the statute book that will do what is required.

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Many of us have experience of serving on local authorities and know that the bane of one's life is to be told that nothing can be done. Ultimately, something can be done. I was interested in the point that the noble Baroness, Lady Gardner of Parkes, was keen to squash; that is, that no fence over two metres would be tolerated. That is not true. A hedge of more than two metres will be the subject of scrutiny by arboriculturalists on the council and in other ways only if there is a complaint that is upheld after an inquiry.

It will be some time before we realise the effects of this approach. I thank the noble Baroness, Lady Gardner of Parkes, who has, for the past three or four years, been determined to reach the position that we have realised tonight. That has occurred against the background that the ministry was satisfied by the inquiry. The noble Baroness, Lady Farrington, was at the centre of the need to consult. That shows her local government experience. We are keen to ensure that of the options available, the legislative back-up route should be preferred.

I welcome my noble friend Lord Evans of Temple Guiting to his new ministerial role. I am sure that he will acquit himself very well. Otherwise, the twig will snap or we will not see the wood for the trees. What else can I say that Mr Stephen Pound would appreciate? He appreciates an attempt—even a poor attempt such as mine—to bring levity to these proceedings.

6.19 p.m.

Baroness Hamwee: My Lords, I recently attended a meeting where the agenda included the fire-fighters' strike, the local government settlement, corporate performance assessments and other weighty matters. I added to the list the High Hedges Bill. That provoked some laughter, but I suspect that, in some people's eyes, the subject matter is at least as controversial as the bigger issues. I believe that that is confirmed by the fact that the Office of the Deputy Prime Minister felt it necessary to publish leaflets on the subject. I see that that office's emblem has been used on a number of publications about high hedges.

As we heard, this is the latest—or, I now understand, almost the latest—in a series of attempts to address the problem. I hope that it will be the end of the beginning in putting in place the necessary mechanisms and possibly even the beginning of the end in finding real solutions on the ground for what we all seem to call hedge "victims".

I, too, thank the noble Baroness for the part that she is playing now and for the significant part that she played in the lead-up to the presentation of the Bill. I also thank her for her explanation. I suspect that the Bill may be less contentious than individual complaints about hedges. For the sake of the noble Lord, Lord Evans, I hope that it is because I believe that this is the first Bill with which he has become involved in his capacity on the Front Bench. From

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these Benches we support the Bill. I hope that the fact that I have some concerns and questions will not be read as a reduction in our support for it.

As the noble Baroness explained, as drafted, the grounds for complaint are limited to the obstruction of light. Those of us with experience on planning committees in local government will be accustomed to hearing members of the public complain that a proposed development will block their light and then hearing the officer's explanation, accompanied by graphs and charts, which demonstrates that the light will not be blocked. No one is terribly satisfied by that.

In addition, the Bill talks of "unreasonable" obstruction of light. I believe that that is possibly even a higher test than one meets when dealing with a development for planning purposes. Another test to be overcome—a matter that we may be able to explore in Committee—is that light can be blocked even if there is no "barrier". That is the term used and, as it were, is the hurdle to be overcome in Clause 2 of the Bill.

The leaflet from the Office of the Deputy Prime Minister, to which I referred, lists examples of the problems which go wider than obstruction of light. It refers to depriving a person of winter sunshine, encroaching on a garden and affecting the growth of plants, a hedge pushing over a fence, and roots damaging one's path, garage or home. I believe that that probably provides us with some material to work on at a later stage. It also seems to me that the Bill is not evenly balanced in that a complainant has to meet a tough test but, under Clause 4(4), the occupier can rely, for example, on his own privacy.

It is probably a considerable breach of etiquette to say this of the Delegated Powers and Regulatory Reform Committee, but I was a little surprised that it took the view that the Henry VIII power contained in Clause 16(1) is acceptable or appropriate. The committee says that the power is limited to extending complaints to non-domestic property or altering the definition of a high hedge. Those appear to me to be fundamental alterations, and it would be better if we dealt with them in the course of the primary legislation rather than by affirmative resolution at a later stage.

It will not be easy for local authorities to be seen as objective and consistent. The ODPM briefing pack talks of tests being worked on by the building research establishment and of the need for those tests to be simple. I believe that, so far as possible, they also need to be objective. I understand that the Local Government Association has indicated that it would welcome government guidance. I believe that that is anticipated by the ODPM and that must be right. Local authorities need to be able to point to something that has general application. They do not want to be in a position where they could be accused of not being objective or fair.

This point will come as no surprise, but I am concerned that the Bill should not put an unreasonable burden on to local authorities. There is always the issue of resources. As I understand it, the fee will be limited by central prescription and is unlikely to be sufficient to fund the service because such fees never

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are. The ODPM tells us that it estimates that costs of about 2 million will be involved simply in dealing with the backlog of cases. This is not only a question of straight cash. I believe that we are all aware of the shortage of planning officers in local authorities. Indeed, not so long ago in your Lordships' House, a debate on planning threw up the issue of the lack of training available for planning staff.

The fine at level 3, which I believe will be the maximum of 1,000—perhaps the noble Baroness can confirm that at the end of the debate—will, I imagine, as with all fines, be kept by central government and will not be directly available for funding the service. My concern over resources is not limited only to local authorities; it is suggested by the Government that people seek advice from CABs and community legal services. They, too, have their resource problems.

I know that concerns have been expressed that the Bill does not apply to single trees. I assume that that is because many instances of damage caused by individual trees can be dealt with by other remedies. However, again, I wonder whether the noble Baroness can say a word about that when replying to the debate.

There appears to be no opportunity for appeal within the local authority unless, of course, both neighbours agree to seek a variation or withdrawal or unless there is a material change in circumstances. I was not able to think what a "material change in circumstances" might be in the context of the Bill. I would welcome any comments on that point as that might help us in our deliberations during the next stage of the Bill. I also wonder whether it would be considered helpful to have something at an intermediate stage before the planning inspectorate becomes involved. I should also welcome hearing what discussion has taken place with local authorities and perhaps with other bodies, such as the Law Society, which might wish to comment.

Trees, both singly and in groups and whether or not they comprise hedges for this purpose, play a significant part in our urban and suburban landscape. The relations between neighbours are also fundamental to urban and suburban life. I hope that the Bill is able to progress in order to support both.

6.28 p.m.

Lord Walker of Doncaster: My Lords, I fully support the noble Baroness's Bill and wish only to ask her a question. First, I should perhaps say that I am the chairman of the Parliamentary All-Party Gardening and Horticulture Group. I do not know whether that is of interest but I am sure that my members will share my welcome for the noble Baroness's Bill.

In the noble Baroness's explanation of the Bill, I did not hear her refer to the difficult problem that arises in conservation areas. I live in a conservation area and I have an overgrown leylandii hedge. My neighbour objects. I cannot cut it because, at 20-odd feet, it is too high. I have to get a tree surgeon to do the work, but I can do so only when he has applied for planning permission from the local authority. The authority inspects the tree and the relevant notice is posted.

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Then, eventually, the tree surgeon can come along and trim back the hedge to the height indicated by the local tree preservation officer and no lower. However, that is still far too high for me to reach.

I do not know whether the Bill will also have an effect where a hedge is made up of mature trees. In summer the entrance to my house is permanently in darkness because of the line of lime trees along my driveway. When I moved in, about 20 years ago, I had to pay a tree surgeon to cut them back or pollard them. The local authority immediately threatened me with legal action and said that if there was any repetition of that I would find myself in court. I wonder whether the noble Baroness could comment on the position regarding the application of the Bill in conservation areas.

6.30 p.m.

Baroness Hanham: My Lords, I am in the happy position of noble Lords having said practically everything that I might have said. Therefore, I shall probably cut down on the time I would otherwise have taken. I was able to welcome the Minister to the Front Bench yesterday. However, in case we should do that with every Bill, I take the opportunity of doing so again. I look forward to working with the Minister.

If he were still in his place I should like to thank the noble Lord, Lord Graham of Edmonton, and indeed, because she is still in her place, the noble Baroness, Lady Hamwee, for the gracious and justified comments they made about my noble friend Lady Gardner. As the noble Lord, Lord Graham, said, she has been truly persistent over this matter—it is now two years since she first started—and it is a pity that she has not yet been able to achieve the results she sought. I am sure that if Mr Stephen Pound, who I see is at the Bar, manages to achieve legislation on this issue, he will acknowledge the great part played by the noble Baroness, Lady Gardner of Parkes. I, too, was slightly irked by the comments in the Sunday Telegraph. I thought my noble friend should at least have figured somewhere in that.

High hedges always conjure up the image of neighbours from hell. They seem to have played an enormous part in bad neighbour relationships. This problem largely started with a number of public fallings out over some very large trees. It is not only the fact that there are neighbours from hell. There are also those who are simply too belligerent to take action or to see that high hedges affect other people.

To put this problem into the hands of the local authority does not seem unreasonable. Local authorities are accustomed to taking enforcement action and to intervening in disputes. Certainly, planning laws are littered with those opportunities. It would be a good solution for local authorities to be given the powers and resources to take proper action and to ensure by means of a fine or otherwise that they have an impact on the situation.

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The noble Lord, Lord Walker of Doncaster, raised an interesting point about tree preservation orders in conservation areas. I am sure that my noble friend will respond—


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