The High Hedges (Scotland) Act 2013
The High Hedges (Scotland) Bill was introduced to the Scottish Parliament in 2012, was passed last year, and now comes in to force on 1st April 2014.
The issue of “high hedges” has caused dispute between neighbours for many years, with neighbours often having to put up with the blocking of light to their property. The problem has grown in recent years with the planting of fast growing species, such as Leyland Cypress (lLeylandii). Neighbours in Scotland have had little legal remedy and the new law aims to address this.
The new Act deals with “hedges which interfere with the reasonable enjoyment of residential properties” and brings Scotland into line with England and Wales, which have had similar legislation since 2003.
What is a “high hedge”?
A “high hedge” is defined as one which is formed wholly or mainly by a row of 2 or more trees or shrubs over 2 metres in height and which forms a barrier to light. This height restriction generally reflects the Planning Permission requirement for any fence, wall or other means of enclosure between properties not to exceed 2 metres in height.
Hedges would not be said to be forming a barrier to light if there are “gaps” that significantly reduce the overall effect as a barrier at heights above the 2 metre threshold.
All types of trees and shrubs are covered by the Act, but the hedge will have to exceed the 2 metre level before it could be considered a “high hedge”.
The new “high hedge” regime will be complaint driven, rather than regulating the height of hedges across Scotland, and the Act provides Local Authorities with the means to settle disputes over the effects of a high hedge.
If the property owner or occupier considers that the height of a high hedge in a neighbouring property adversely affects their reasonable enjoyment of their property, they will now be able to apply to their Local Authority for a High Hedge Notice (HHN). However, a neighbour will only be entitled to apply to the Local Authority for a HHN once they have taken “all reasonable steps” to resolve the dispute before they apply to the Local Authority. In other words, the Local Authority will expect the neighbouring proprietor to do all that is reasonable to reach an amicable agreement.
The Local Authority is entitled to filter the applications, so disputes that lack sufficient pre-application efforts at resolution, or are frivolous, will be rejected. If an application makes it passed this initial stage, it would be copied to the owner or occupier of the neighbouring property, and they have 28 days to make representations. At the end of this period, the Local Authority will decide whether to uphold the application, and if this is upheld, a HHN will be issued, which will specify what remedial and preventative actions are appropriate and the timescales for compliance, and this will be binding upon the owner of the property.
The Local Authority have power to enter the property for the purpose of inspecting and monitoring compliance with the HHN, and will also have power to apply for a warrant to use “reasonably necessary force” to do so. If the proprietor does not comply with the HHN, then the Local Authority has the power to enter the property, upon giving 14 days’ notice, to carry out the action required by the HHN.
The Act provides both parties with the right of appeal to the Scottish Government on the decision of the Local Authority, and appeals will require to be submitted within 28 days of the Local Authority decision.
The Local Authority has flexibility on fixing the costs for any application, although the aim of the Act is to be cost neutral. There is no cap on the application fees that Local Authorities can charge, but fees must not become a profit centre by exceeding the reasonable costs of the Local Authority in deciding the application.
Any application will require to be accompanied by the fee, which would require to be paid by the person submitting the application. Whilst these fees will be fixed by the Local Authority in due course, it has been estimated that the application fees may range for £325 – £500.
Where the Local Authority requires to take enforcement action in respect of a HHN, they are entitled to recover their reasonable costs from the owner of the neighbouring property. Any unpaid costs can be secured by the Local Authority by recording a Notice of Liability for Expenses in the Land Register, and this Notice would create a liability on any future owner of the property. It will be important for solicitors to ensure that there are no outstanding Notices affecting a property they are purchasing for a client.
The aim of the Act is to provide a remedy to resolve disputes in relation to high hedges, but hopefully the fact that there will now be a dispute resolution mechanism in existence, will help neighbours reach an amicable agreement, without having to incur the costs of a formal application.
If you would like to discuss any aspect of the new system further please do not hesitate to contact us and one of our solicitors would be happy to help.
This Briefing has been produced for information purposes only and is based on the law and other information available at the time of writing. We cannot be held responsible for any losses incurred through acting or failing to act on the basis of anything contained in this Briefing.
If you require advice on any of the matters referred to, please contact us so that we can advise you, taking account of your own particular circumstances and requirements.