In the past, the use of hedges have played an important role in providing homeowners with a quick fix for their privacy woes and landscaping needs. However, in recent years the increased growth in urban density coupled with the availability of low cost and fast-growing hedges has significantly exacerbated disputes between neighbours. An ongoing five year disagreement between Dundee homeowners about 100ft trees outside their homes and a wrangle between residents on Ashley Road in Aberdeen are media-featured examples of cases in which homeowners are seeking to make use of the High Hedges (Scotland) Act 2013, an Act introduced by the Scottish Government aimed at providing an effective means of resolving disputes over high hedges.
The Act provides local authorities with the power to settle high hedge disputes that neighbours have been unable to resolve. Residents can apply to the local authority for a high hedge notice compelling the landowner to take action, subject to the applicant having taken all reasonable steps to resolve matters with the neighbouring landowner prior to making an application. A fee, fixed by the local authority, is charged on the making of an application; fees range from under £200 to over £400 so applicants should consult their local authority regarding the cost in their area prior to submitting an application.
What constitutes a High Hedge?
Before an application is made, it is important to consider whether the offending plants constitute a high hedge within the meaning of section 1. A three part test must be satisfied for a hedge to be considered a high hedge within the meaning of the Act. It should:
be a row of two or more evergreen or semi-evergreen trees or shrubs.
- exceed two metres in height.
- form a barrier to light (a high hedge will not be regarded as forming a barrier to light where the row of trees or shrubs contains gaps).
Further detail as to what constitutes a high hedge can be drawn from various cases and appeals. The Planning and Environment Appeals Divison (DPEA) of the Scottish Government quashed a high hedge notice issued by Moray Council in 2015, classifyinga belt of spruce trees ranging from 20-25 metres high and extending to 35 metres in length as a narrow stretch of woodland, rather than a high hedge. An October 2018 DPEA appeal confirmed a Renfrewshire Council decision not to issue a High Hedge Notice on the basis that the five trees in question did not form a row. The Aberdeen case mentioned above has the Council apparently following Royal Horticultural Society guidance to the effect that the relevant trees do not constitute a hedge and so cannot be dealt with under the Act.
Local Authority Decision Process
Assuming that the trees or shrubbery meet the criteria of being a hedge, once an application has been submitted, there is a 28 day period for the making of representations. Thereafter, the local authority will consider whether the applicant's reasonable enjoyment of their property has been adversely affected by the height of the hedge.
In coming to a decision, the Act requires local authorities to consider all the circumstances, including whether the trees are subject to tree preservation orders or fall within a conservation or protected area. The Act also requires local authorities to take into account:
- the effect of the high hedge on the amenity of the area;
- whether the high hedge is of cultural or historical significance; and
- decide whether to require action to be taken by the neighbouring landowner to remedy the adverse effect ("initial action"), or to prevent any recurrence.
If initial action is necessary, the local authority will issue a high hedge notice detailing amongst other things:
- a description of the hedge;
- the initial action that is required;
- the period of time the landowner has to comply with the notice;
- any preventive action that is required to avoid recurrence of the adverse effect; and
- the right to appeal.
The effect of the notice is binding on the owner of the land specified within the notice. Where that person seeks to appeal the notice, he or she must bring their appeal 28 days from notification of the relevant decision.
Action after service of a Notice
Where the landowner fails to comply with the terms of the notice, the local authority has the power to carry out the action required and recover from the landowner any expenses reasonably incurred in undertaking the works on their behalf. Provision is also made for local authorities to register a Notice of Liability against the title of the property at Registers of Scotland in respect of the expenses incurred and as such all future owners of the property will be held jointly and severally liable for any expenses owed; in practice, a purchaser is unlikely to complete the acquisition of the property without making arrangements for the debt to be repaid and the Notice of Liability cleared from the title.
The Act, with its introduction of a mechanism to provide potential resolution to some difficult neighbour issues, coupled with enforcement provisions, was a welcome development within neighbour law. However, as the cases mentioned above illustrate, it does not always provide the answer for people affected by towering trees or overgrown shrubbery.