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Baroness Gardner of Parkes: I thank the Minister for his comment. He says that the amendment introduces a judgmental element, and I agree. I have considerable correspondence from people who think that the introduction of that element would be an advantage. Local authorities are used to dealing with such situations, so it is not significant.

The point about the date of the planting of the hedge, which is dealt with in my amendment, Amendment No. 14, to which I also speak now, is a two-edged sword. Some write that they do not want a hedge, but if it has been there for more than a certain amount of time, it is "set in stone" and nothing can be done. Others say that the date is significant if the hedge was planted immediately after a planning refusal, for example. That was my initial thought when tabling the amendment. The Hedgeline group says in its note that real malicious intent from the outset is rarer. It is usually a by-product of another quarrel; for example, the victim has opposed a planning application at an earlier time. So, apparently, planning applications are one of the big reasons why people take vindictive action. There is a place for a provision relating to malicious intent.

I wish to correct my statement about the Minister's letter to me. I have now checked the exact wording. He said that he thought "frivolous and vexatious" should not be added to the appeal procedure, but that we had not discussed the word "malicious" at that time. I am prepared to accept that. The word "malicious" should

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not be applied to appeal, but I still strongly believe that it should apply to the original council reasoning. I hope that between now and Report stage I can convince the Minister that there is some merit in that.

Lord Graham of Edmonton: Before the noble Baroness sits down, the Minister said that it would not be helpful to insert the word "malicious". We are trying to read the significance of this because, ultimately, we not only want the Minister to oppose, we want him tacitly to support, legislation from here. When he says that it would not be helpful, is that a coded way of saying that he would prefer that the word were not there? Although the case for it has been made, a Bill without that word is better than no Bill at all.

Baroness Gardner of Parkes: I shall have to ask the Minister to comment. If it is a coded message, it is not one that I understand.

Lord Bassam of Brighton: I try not to speak in code. We take the view that it would not be helpful and that in some circumstances it could be counterproductive. It would probably put local authorities in a difficult position when reaching a conclusion because it would have to take into account the intent behind planting the hedge at a particular time and place. As I said, simplicity is the order of the hour in this Bill. We would prefer to have clear and simple legislation that did not force local authorities to judge the intention behind an action.

Baroness Gardner of Parkes: I thank the Minister for that remark. I understand exactly the point by the noble Lord, Lord Graham, that we would rather have a Bill than no Bill, provided that it is not so damaging to the interests of those adversely affected by hedges as to be worthless. I believe that it is the Government's honest intention to enact a worthwhile Bill. There is time for discussion on the matter between now and Report stage. Perhaps I can convince the Government that the word "malicious" is good; perhaps they can convince me that it is not desirable and would be counterproductive. We will continue from there. Meanwhile, I beg leave to withdraw the amendment.

Baroness Gardner of Parkes moved Amendment No. 12:

    Page 2, line 38, at end insert—

"( ) that the complainant has not notified the person referred to in section 1(1)(b) against whom the complaint is being made,"

The noble Baroness said: I tabled this amendment at the last moment because of letters I have received. We discussed at Second Reading the desire for mediation. It is desirable, and, if we can see that agreement is reached between neighbours, so much the better.

I received a letter from an elderly couple whose neighbour, when they approached him, told them that he intended to be a very bad neighbour. He said that he had no intention of doing anything whatever to help them and that if they came near him again—he did not say, "I'll knock your head off", but that was the tone.

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The elderly couple felt intimidated. They said that at over 80 years old, they felt unable to face such a situation again.

It is important to note the law as highlighted in Delaware Mansions Ltd v Westminster City Council, where a judgment was made against the council because it had failed to respond to the notice served to request that the growth of the tree be controlled. I outlined at Second Reading the eventual 1 million cost incurred by contrast to the original cost of 14,000. The House of Lords ruled in that case that it was essential that one notified the neighbour of the problem.

So, it is no good if the elderly couple do not even tell their neighbour. They must have some official way of giving notification. But where people feel threatened, they should not have to attempt to meet or mediate with their neighbour unless he indicates a willingness to do so. For that reason, I considered that anyone could comply with an obligation to notify the neighbour, because it could be done by recorded delivery, registered post or in some way that did not endanger the person notifying, yet it would satisfy the council that the person being complained against was at least aware of the problem. That is the basis for Amendment No. 12. I beg to move.

Baroness Hamwee: My Amendment No. 13 is in the same group. It would give the authority a clear right to postpone a decision in order to allow for mediation. The words used are,

    "capable of resolution by other means";

in other words, other than through its procedures. That may be implicit, but in case it is not I wish it to be understood that there is a considerable role for mediation. Local authorities will not necessarily relish having to carry out that role. They, rightly, say that they are not resourced to undertake such measures; however, I dare say that planning departments have much experience of it. I hope that the noble Baroness can agree the principle, if not the method, of dealing with it. I wish to ensure that it is understood that mediation can be attempted before choosing the nuclear option.

Lord Graham of Edmonton: This is an interesting point because from what I have read and seen I am well aware that although people may not have been terrorised, they are nevertheless frightened. They may be timid and frail, and do not like to draw neighbours' attention to a detriment to their property. However, if we are to engage local authorities to spend money and time in dealing with the problem, they ought to realise—and ought to be able to realise—that the simple procedure of asking for the hurt to be remedied by the offending neighbour has at least been attempted.

I repeat my own illustration. I bought my house which had next to it a hedge of about 20 to 25 feet in height. I spoke to my neighbour and asked what had happened. He said that the previous person went to see

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the owner and came away with a flea in his ear. The matter had been left. When this debate arose two or three years ago, I said I would do exactly what the amendment of the noble Baroness, Lady Gardner of Parkes, suggests. I went to see my neighbour and found that he was a new owner and that he was unaware that there was any feeling on my part that the height of the hedge should be reduced. As soon as I raised the matter with him he said that he was very sorry and that he did not realise the problem. He said that he bought the house and the hedge, but now that the issue had been drawn to his attention he would reduce the height of the hedge to an acceptable and satisfactory height at his own expense, which he did.

Therefore, before involving the panoply of the law, I believe that the onus should be on the complainant to prove that he has taken some steps to try to resolve the matter. He should not simply say that he had been told by somebody that it is no good visiting the neighbour. The amendments are well worth the Minister's consideration and are acceptable because they improve the true intent of the Bill.

4 p.m.

Lord Bassam of Brighton: We have great sympathy with the noble Baroness's point that there should be a requirement for information to be supplied to the occupier of the land where the hedge is growing before the local authority considers a complaint. In our view those seeking to make a complaint should have taken all reasonable steps to resolve the dispute by negotiation. Under those circumstances I believe that the local authority would probably be within its rights to reject the complaint if such reasonable steps had not been taken. There should, first, have been some dialogue with the hedge owner which should have ended with the complainant saying that he was not satisfied and that he intended to use the statutory complaints procedure.

As a matter of courtesy, I also agree that the complainant should inform the hedge owner when lodging the complaint with the local authority, perhaps by sending him a copy of the complaint. At any event in these circumstances it is the Government's intention to publish a leaflet for members of the public to understand how the complaints system will work when established under the legislation. We would want to include advice within that leaflet about the notification process as regards the owners of hedges. It seems to us that putting that information into an explanatory leaflet is better for the purpose of placing a message rather than to include it on the face of the Bill. We believe that that would be a more effective way of dealing with the matter.

That brings me to the point raised by the noble Baroness, Lady Hamwee, that the local authority should have the facility to reject a complaint if a complainant has not, at the first instance, put the person complained about on notice. We believe that it is best that mediation and dispute resolution is tried first. It would be our expectation that that would be the normal run of events. It is our intention to publish information in the form of a leaflet initially rather than

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having it set out on the face of the Bill, which we do not believe is necessary. We shall be able to consult the local authorities on the content and design, which deals with the point more effectively than placing it within the body of the legislation itself.

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