We have recently acted for a client in a successful appeal against the grant of a High Hedge notice issued by Moray Council.
What is a High Hedge notice?
High Hedge notices are issued under the High Hedges (Scotland) Act 2013 on application to the local authority. The notice will require their neighbour to trim the hedge. Applicants have to satisfy the Council that the hedge is causing a barrier to light and adversely effects their enjoyment of their property.
In Section 1, the Act includes a definition of a High Hedge as “a hedge formed wholly or mainly by a row of 2 or more trees or shrubs”, which “rises to a height of more than 2 metres above ground level”, and “forms a barrier to light”.
Our client’s neighbour applied for the notice in respect of a belt of trees along the boundary of a field belonging to our client in a rural area. Our client’s property is a farm which they operate as a pheasant shoot, and the trees are part of woodlands which our client maintains and manages as shelter belts to enhance the quality of the shoot.
We made a comprehensive submission to the Council in response to the neighbour’s application, but after a site visit and committee meeting the Council decided to issue the High Hedge notice requiring the trees to be reduced in height.
Our client’s forestry consultant advised that there was a high risk of the trees dying if they were lopped in accordance with the notice. Our clients therefore instructed us to lodge an appeal in the hope of saving the trees.
We outlined several grounds of appeal, but the main basis of the appeal was that the trees did not comprise a High Hedge in terms of the Act. There was no doubt that there were more than 2 trees in a row, and that they were more than two metres in height. But we argued that they were not a hedge by any normal definition of that word, and could not therefore be a High Hedge for the purposes of the 2013 Act.
The appeal Reporter conducted a site visit and agreed with our representations. Her decision notice included “Another approach [to the definition of words in legislation] is to use the normal and natural dictionary meaning of the word, but to apply qualifications to it to adjust the meaning for use with the legislation. In this approach the normal and natural meaning of the word is retained as an element of the definition. This, in my view, is the approach used in Section 1. The definition “high hedge” in the Act only applies to groups of vegetation which would normally and naturally be regarded as a hedge in the first place.”
The Reporter accordingly quashed the High Hedge notice which had been issued by the Council. This left our clients free to carry out further management and maintenance of the trees in accordance with the advice of their forester.
If you would like further information or advice about high hedges, please contact Graham Watson or Gary Webster.