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Lord Bassam of Brighton: Having listened to the case example, I am not sure whether or not the amendment helps. It is a neat point. But it is an interesting amendment and I shall deal with the issues that it gives rise to.
Clearly the noble Baroness is concerned to ensure that a complaint can be brought under the Bill only if someone's residence, and any associated garden, is adversely affected, and not some kind of outbuilding. We certainly support her wish to limit the scope of the Bill in this way. I hope that I can reassure the noble Baroness that the Bill as currently drafted achieves exactly what she wants.
Under Clause 1, a person can bring a complaint only if the reasonable enjoyment of his or her domestic property is affected. Clause 3 defines "domestic property" as a dwelling and any associated garden or yard. It defines "dwelling" as,
The amendment would mean that a complaint could not be brought in respect of a property in a residential area that is wholly occupied by, say, a dental practice; nor could someone complain if a hedge was affecting their garage, barn or outbuildings that might be used for storage or for purposes other than living accommodation.
A property might contain a mix of domestic and commercial uses. In these circumstances, the Bill would apply to protect the living quarters from the effects of a neighbouring high hedge. So the Bill is intelligently enough drafted to assist someone occupying mixed accommodation. On most occasions the division between domestic and commercial elements will be clearfor example, the doctor's surgery that operates out of an extension to his or her home or the flat above a shop or a pub. In such cases,
Where the boundaries between the business and living quarters are more blurred, the local authority would need to use its good sense and consider the facts of each case to determine whether the legislation should apply. We can reasonably infer from the good practice that most local authorities adopt in enforcement cases of a similar nature that they will be able to operate the law effectively in such circumstances.
I trust that that clarification helps the noble Baroness. I hope that the case example she cited is capable of reasonable resolution. It seems that an absurd and unpleasant situation has developed. We would be very interested to see the correspondence that has ensued as a consequence.
Lord Graham of Edmonton: Perhaps I may first apologise profusely for my inability to be here this morning owing to domestic circumstances. I apologise particularly to the noble Baroness, Lady Gardner of Parkes, who has been stalwart in pressing these issues.
It is appropriate that I should enter the debate on this amendment. As I understand it, the Minister said not only soothing words but intimated an understanding in the department that that which the noble Baroness seeks to achieve by her amendment is already covered either by what is meant in the Bill or is intended to be meant in the Bill.
There is no doubt that the vast majority of people are reasonable and sensible, but we have to guard against the small minority of unreasonable and sometimes nasty people. There will be other stages of the Bill and opportunities for consultation. We also have parallel opportunities in another place in a Private Member's Bill. We are in the happy position of trawling for instances and happenstance so that we can have the benefit of a longer view than we might otherwise take.
Baroness Gardner of Parkes: Yes, I agree that the Minister has been most helpful. I am delighted to see the noble Lord, Lord Graham, in his place. He has long taken a great interest in the Bill. I quite understood his absence this morning. It was impossible for him to be here as he had to take a member of his family to hospitalwhich superseded any Bill. I welcome the noble Lord's support in this afternoon's debate.
The Minister's answer was most satisfactory. It is extremely valuable to have that statement on record as Hansard now carries a weight in its own right and can be used in legal disputes. I therefore beg leave to withdraw the amendment.
The noble Baroness said: In a way, the strange situation to which I referred in moving the previous amendment could almost be covered by this one; namely, that there is definitely some degree of malicious intent on the part of the person involved. I have received a considerable number of letters about malicious intent.
I have in front of me a typical letter. A neighbour with 26 acres of land lawfully converted her only barn into a house. She then decided that she wanted to erect another barn in the hope of gaining residential planning permission, but permission was refused. Because of the refusal, she deliberately planted a leylandii hedge along the boundary of each adjoining property of the neighbours who had opposed the conversion. This was specifically done as a pay-back for objections to the planning permission. Without doubt there was malicious intent.
I referred earlier to the case of the man who planted alder trees. The case is similar: he had applied for planning permission. I do not think that his intention was deliberately to upset the neighbours, but he planted a hedge of alders where he had hoped to obtain planning permission for the entrance to his barn. He assured the neighbours that he would not allow the trees to grow more than five feet tall. But when he did not obtain planning permission for residential occupation, he ignored the trees. I said this morning that they had grown to 25 feet; I now see that his letter states that they are 35 feet high and causing great problems. The trees merely adjoin farmland and are of no benefit to the farmer, but they are a terrible disbenefit to the owner of the residential property.
The point is important. In reply to my remarks at Second Reading, the Minister considered that we should not use the term "malicious" in the appeals section. But I believe it appropriate to use the term in regard to the council determination. The local council would rapidly be able to assess whether a complaint was genuine or whether someone was merely out to be spiteful and difficult. For that reason, the amendment has significance. I beg to move.
Lord Graham of Edmonton: I support the amendment. It may well appear to be the result of an oversight, but the noble Baroness reminds us that it arises out of remarks at Second Reading. In my experience, from correspondence and from speaking to many such peoplewho on one occasion held a lobby in this Housewe may raise the question of whether an instance is malicious, frivolous or vexatious, but the sad fact is that many of the cases brought to our attention fall into the "malicious" category rather than into the other two categories.
I am satisfied that where local authority arboriculturists or environmental health officers finally face up to the neighbour who may be acting in an unfriendly manner, cases that are "vexatious" or "frivolous" can be resolved fairly quickly. But the power to deal with what is seen as "malicious"that is, having a deliberate intent to harmwould be better placed on the face of the Bill.
Lord Bassam of Brighton: Through these amendments the noble Baroness seeks to deal with complaints that have an element of malevolence. We fully understand the reasons for bringing forward the amendments. Far-fetched though it may seem, I am sure that there have been horrific cases where people have planted hedges with the sole intention of inflicting misery on others. The noble Baroness gave a very good example.
I have in front of me an example from the programme "Neighbours from Hell". Apparently, the couple concerned and other local residents objected to a planning application by their neighbour, in consequence of which a hedge was planted only a few feet away from the windows on all three sides of their bungalow. The pattern of land ownership was somewhat unusual, but the case illustrates the lengths to which some people will go to be unpleasant to those with whom they share common boundaries. The noble Baroness raised this issue at Second Reading and gave very good examples. While these extremes are undoubtedly rare, they are very real for some people and they can cause great distress.
The vast majority of such disputes arise through nothing more sinister than ignorance of just how fast and high a hedge can grow. We wonder generally how far the amendments will be necessary or required. We also wonder whether they are workable. We should, after all, be asking local authorities to make a judgment about what stimulates people, what their actual intentions are. Given the long history attached to some hedge disputesthey can continue for many yearsit will be very difficult in some circumstances to isolate the facts, particularly in the case of a hedge that may have been planted some years earlier, and to determine the intent behind its planting. That area could be extremely difficult. In that instance one would have to deal with a possible change of ownership and decide to whose intent the judgment should apply.
In such circumstances it would be very hard for the local authority to prove intent. Reflecting on my own local government experience where, as the local ward member, I was frequently called upon to mediate, it was always difficult to get to the bottom of disputes between neighbours, particularly over boundary matters. So, as well as the difficulties in proving malevolent intent, I am not sure that personal matters have a place in this legislation. I argued earlier for simplicity. It is certainly our belief that simplicity will make this legislation more effective.
It is intended that the Bill should take the heat out of hedge disputes by local authorities acting as independent third parties in examining issues as objectively and dispassionately as they can. Our view is that local authorities should be left to weigh the facts of each case in a fair and impartial manner, unencumbered by questions of the different and varying motivations of the parties involved.
For those reasons, although we understand the spirit and intent behind the amendment, we do not believe that it would be helpful at this stage to include a specific provision on the face of the Bill to deal with alleged vindictiveness.
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