Official Report (Hansard)
Date: 30 September 2010
High Hedges Bill: Briefing by Banbridge District Council
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COMMITTEE FOR THE ENVIRONMENT
High Hedges Bill
30 September 2010
Members present for all or part of the proceedings:
Mr Cathal Boylan (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Roy Beggs
Mr Thomas Buchanan
Mr Trevor Clarke
Mr John Dallat
Mr Danny Kinahan
Mr Peter Weir
Mr Brian Wilson
|Mr David Lindsay||)||Banbridge District Council|
|Mrs Gillian Topping||)|
The Chairperson (Mr Boylan):
We now move to today’s first briefing on the High Hedges Bill, which will come from Banbridge District Council. I welcome David Lindsay, who is the council’s director of environmental services, and Gillian Topping, who is the council’s head of environmental health. I invite you to make a presentation of between five and 10 minutes, after which Committee members will questions. I remind members that we have four briefings to get through, so I ask that you try to make your questions as specific as possible.
Mr David Lindsay (Banbridge District Council):
By way of introduction, the council is very supportive of the Assembly’s move to push forward the issue of high hedges. It is a significant issue for a number of residents and ratepayers in the district, so the legislation will be very useful.
We want to address several significant issues. I will outline those issues and then hand over to Gillian, who will put some flesh on the bones of our particular concerns. The issues are: the remedy for non-compliance with a remedial notice; a complaint being made to the council in the first instance, and what measures need to be demonstrated by complainants before they can legitimately make a complaint; and the fees that the council may charge.
Mrs Gillian Topping (Banbridge District Council):
Good morning. As Committee members will know, the council’s environmental health department already receives contact and complaints from the public or from community and elected representatives about the problem of high hedges. The number of those enquiries increased significantly during the consultation period, and we continue to receive requests from those who believe that the legislation is already in place. Many of the disputes over high hedges have been ongoing for several years and appear unlikely to be resolved by the parties themselves. Many people also enquire about large, overgrowing trees that will not fall into the definition of a high hedge, and they will, no doubt, be disappointed that the Bill will not assist them.
Given the level of interest from the public and the long-running nature of many of the disputes, it is reasonable to predict that, certainly in the initial period, a substantial number of the complaints could proceed to formal action and the issuing of a remedial notice, as set out in the legislation. In turn, that increases the prospect of non-compliance with the notice by the hedge owner, or the occupier of the land, and leads to our first point regarding enforcement. As a council, we advocate the use of fixed penalty notices as a formal enforcement tool. Fixed penalty notices can be used to avoid the need to take those who commit offences to court. It is our experience that pursuing matters of non-compliance, with whatever piece of legislation, can be time-consuming, resource-intensive and expensive, and the outcome can, on occasion, be less than the deterrent against future offences. If the matter of paying a fee to make a complaint about high hedges is about cost recovery or minimising the burden on the general ratepayer, no reasonable fee could ever help to contribute towards the cost of court proceedings.
In the submissions that we made during the Bill’s consultation phase and for Committee Stage, we proposed the use of a fixed penalty notice. We suggest that that could be used as an enforcement tool in the event of non-compliance with a remedial notice. Given that the Bill envisages every person who does not comply with a remedial notice as being guilty of an offence, the fixed penalty options of, say, £200 would provide a deterrent and a more efficient means of dealing with non-compliance in the first instance. In the case of continuing non-compliance with a remedial notice, the council could apply to the courts for an enforcement order, and that provision already exists in clause 9 of the Bill. The council notes that the Department has amended the Bill since the consultation stage to protect councils from liability where they have acted in default and carried out remedial works to a hedge, provided that they have acted reasonably and taken professional advice. We request that that provision be extended to situations in which work is specified in the remedial notice and after work is completed by the hedge owner; for example, when a coniferous hedge dies back or dies altogether.
As we said, the council continues to be contacted by a number of people. The advice that is given to them is in line with the legislation: the party troubled by the neighbouring hedge must be able to demonstrate that he or she has made efforts to discuss the matter with the neighbour to reach a solution. People often tell us that they do not get along with, are in dispute with or do not want to approach their neighbour, or that they do not want to trouble an elderly person who owns the hedge in question.
Here, the option of mediation or the role of a community advice body becomes important. We have some concern about that. Generally, the public do not know to whom to turn for mediation and, although we know that such a service exists, we do not believe it to be widely available. We are concerned that people may not have access to a mediation service to the degree that the Department might envisage. We believe that there is more work to be done in ensuring that mediation services are publicised, readily available, accessible, capable of dealing with the potential demand, and will operate at low or no cost.
Our final point concerns fees. The concept of levying a fee on the person who wishes to make a complaint about a high hedge is unfamiliar to council members and the public. At the consultation stage, Banbridge District Council did not support the power to levy fees on someone who makes a complaint, on the basis that no fee is charged if a complainant wishes to bring any other matter to the attention of the council. Increasingly, however, we believe that there is a better understanding of the reasoning behind the power given to councils to levy fees, and the role of the council in the legislation is to act as an independent and impartial third party. We will adjudicate on whether the hedge is adversely affecting the reasonable enjoyment of the complainant’s property rather than identify a wrongdoer, as we do in our traditional work.
A fee can be considered normal when that service benefits one person rather than the community in general; for example, councils are used to dealing with fees for building control applications, licence applications or an inspection of a house under the Private Tenancies (Northern Ireland) Order 2006. As this is a new legislative duty for councils, and in the absence of any new-burden funding, we believe that there will be an increasing realisation of the need to secure some level of cost recovery for the council, particularly where it may have to buy in specialist advice.
That concludes our presentation and the main points that we wish to make. We are happy to take comments or questions from members.
Thank you for your presentation. The legislation is to address the issue of topping hedges. Currently, if a hedge is overgrown and has gone into a person’s ground, that person is welcome to cut it down; that is their responsibility. Do you feel that each council should be able to set its own fee?
In the environmental health community, which is where the legislation may end up being enforced, we operate on a regional level. We therefore believe that there should be some level of regional guidance that we could operate within. Perhaps common systems could be used to find a band of fees. Individual councils, depending on the priority that they attach to the issue and the level of problem that they perceive to be, should have some discretion to work out individually what they believe to be a suitable fee within that broad band
I have one other point to make on fees. In England, where similar legislation has been in force for some time, the guidance advocates that, where there is any doubt or concern about the remedy that is to be specified in the notice served, the council should take an expert arboriculturist’s advice. The English guidance is quite emphatic about that. I suppose that that is because of the possibility of the hedge dying or something happening to it for which the council could be held liable.
If the fee is designed to cover all the councils’ costs, we would caution that careful consideration needs to be given to the range of fees that could be charged. If a council were in a position in which it felt that, because it did not have any in-house expertise, it had to get an expert’s advice on the remedy that was specified in the notice, that would have to be paid for and logically recovered in the cost of the fee paid up front by the complainant.
One of the issues is, therefore, how we set the range of fees. We feel that that needs to be given consideration.
You mentioned trees. The legislation does not cover single trees. Local councils receive a serious number of complaints about single trees, because they are the first body that people will go to about such problems. Does Banbridge District Council, therefore, wish to see that issue teased out? The proposal indicates that the legislation will apply to two trees or more. Does the council wish to see the issue of single trees revisited, because those trees can be a serious nuisance in some cases?
A single tree will have less impact on someone’s reasonable enjoyment than a range of trees in a very tall hedge. We must look at the guidance that we believe will come in and determine the impact. Every case will probably be different. However, to bring single trees or even single evergreen trees into the legislation would widely increase the number of complaints that councils would get.
A number of people have contacted us about non-evergreen trees, such as chestnut or sycamore trees, to which the legislation simply does not apply. We therefore believe that there still are issues to be addressed.
I know about some cases involving individual trees, especially where social housing backs on to farmland. However, you are right: if we spread it out too much, we could be looking at complaints about every tree in the country. I just wanted your views on that.
Mr T Clarke:
On that point, given the example that you just gave, are you saying that you are in favour of including a provision on single trees in the legislation? At the moment, if someone living in a more urban setting has a neighbour, such as an irresponsible farmer, who will not cut back a tree, there is nothing that that individual can do to protect his or her house. I know one householder who feels that a tree is endangering his home, but nothing can be done about it. Do you accept that councils should also have the power to look at single trees in such cases?
The issue is then about whether it is a single evergreen tree or a single ordinary tree?
Mr T Clarke:
One that is planted in the ground and has roots. I do not care what it is called. One that grows very tall.
We are talking about evergreen trees, because that is the definition in the Bill as it stands.
Mr T Clarke:
That is my point. Does the council wish to see that extended to all trees?
Our experience is that a lot of people think that single trees will be covered by the Bill.
Mr T Clarke:
They will not.
We are telling people that single trees will not be covered in the Bill as it stands. We cannot deny that many people have a genuine problem, because a very tree large that is growing in a relatively confined area is blocking out a lot of light from the front of their house or wherever. Therefore, we cannot deny that people can be denied enjoyment of their property by single trees as well as, but perhaps not as much as, a high hedge. If the definition is opened up, the scale of the complaints may just become too much.
Mr T Clarke:
What is more important to the council: loss of light caused by a high hedge or damage caused to a property by dangerous branches from a tree?
There are other remedies that an individual can use if a tree is causing damage to a property.
Mr T Clarke:
That is why I am asking that question. If we are not that far through the legislative process, we should make provision for such things in the Bill, because the onus is being put back on the person whose property is in danger or at risk, rather than on the person who owns the tree.
You touched on the issue when you asked that question, and I can picture the settings that you are talking about. The responsibility is on the owner of the house as opposed to the person who owns the tree. As it stands, nobody is really interested in protecting the homeowner whose house is vulnerable to damage caused by a tree. I know of one farmer who told a homeowner, “If you want the tree to be cut down, do it yourself.” That is not fair either. You are talking about the cost of bringing in experts to give opinions on trees. However, that would be nothing compared with what it would cost to bring in a tree surgeon to cut a tree down.
In the past, if people complained about neighbouring trees being a danger to their properties — whether because of the tree’s roots or because it was unstable — we advised them to consult their solicitor. People have sent a solicitor’s letter to say that trees are causing damage. Therefore, as Gillian said, there is a remedy for such instances, whereas, in the circumstance covered in the Bill, the remedy is less clear at present. That is where the value of the Bill lies.
I was going to mention indigenous trees, but someone told me that Castlewellan Gold falls into that category, so I had better be very careful about what I say.
I want to ask about making a complaint. You used the example people who do not want to complain to their elderly neighbour. If people have already aired their views to their neighbour without success, they will have to go down the complaint route.
The Bill states that if someone who makes a complaint must pay a fee. Is the fee returned once the work is carried out?
Our understanding is that the fee is for the council’s independent adjudication service. The complainant pays for that, and it covers the cost of the council intervening and means that the general ratepayer does not have to pay for it. There is no recoupment of costs, so even if a council finds that a person’s complaint is legitimate and that the neighbour has to take action, the person is not refunded. The best that the person can hope for is that the matter is resolved, but he or she will still be out of pocket for the paid.
I appreciate the logic behind the existence of the fee. We are all aware of many genuine cases in which action is needed and those in which there has been a problem for years. We are also pretty aware of situations in which neighbourhood disputes can easily lead to the complaints process being used vexatiously. Therefore, there is a need to charge a fee.
You said that the fee is essentially used to trigger an adjudication system. An analogy could be drawn between this and the court process. If a person wants to sue someone, generally, that person must pay a certain amount of money in order to get the case to court. However, it is also the general rule of thumb in courts that costs follow the event.
I perfectly understand that a complainant should be stuck with the fee in cases in which the situation is sorted out through arbitration or in which the complaint is deemed not to be legitimate. However, you mentioned a scenario in which someone who for years has tried unsuccessfully to get his or her neighbour to do something has used the service and is still stuck with the fee, even though the neighbour is completely in the wrong and knows what he or she should have done.
Costs often follow the event in courts. Should there be a provision to enable a council to recoup the cost of the fee from the party that has been ruled against in the judgement? Therefore, if someone is instructed to take certain action, he or she should have to cover the cost of the fee from a legitimate complaint.
There is much validity in that argument, for instances in which someone who is not at fault and has brought a genuine case has to stump up the money. There are two answers to your question. First, imposing a cost or fee on the guilty party could get quite messy. If we find that the complaint is genuine and that the guilty party must carry out works to put rectify his or her actions, the mechanism for recouping that money could get quite messy.
Earlier, you told us that there would be a fixed penalty notice for non-compliance. None of us knows at what level the fixed penalty should be set. Let us say that it is £50. Why not then at least have the power to impose that additional fixed penalty notice to recover the costs? If you are going to allow a fixed penalty for one set of circumstances, why not simply extend that?
We are all aware of situations in which, for example, a little old lady’s garden hedge has overgrown, but there are also situations in which an elderly person may feel intimidated by the people who live next door and who constantly ignore what that elderly person has said about the height of their hedge. It seems unfair that, when a person makes a legitimate complaint, even though the adjudication is legitimate and the need to take action is recognised, to enforce it and compel the neighbour to do something that they should have done anyway ends up costing the complainant what could be a considerable amount of money.
We have looked at how some councils in England deal with the splitting of fees by charging a two-stage fee. There is an overall fee in such instances, and, in England, those fees are commonly around £300. There is an overall fee of, say, £300. The stage one investigation fee for the complainant is, say, £150. At that point, the council decides whether there is a problem and what the issues are. If the council has to move to the enforcement stage, it asks the complainant for an additional £150.
That seems completely ludicrous. It suggests that people who make genuine complaints are to be charged more than those who are regarded as having made frivolous complaints.
In actual fact —
We have had discussions with the Department on this matter in the past. One of the complaints that people have made is that, for instance, the legislation was enacted in England before it was introduced here and that progress was slow. I was told that when the legislation came into force in England there were elements of it that did not work very well. We should perhaps learn from the mistakes that were made in England.
I would not like to be on benefits and have to deal with such matters.
There are various schemes and discretionary powers to charge different percentage levels of fees. I am aware that the English high hedges legislation was due for a review in 2010, but I do not know whether that review has been completed or whether there are lessons to be learned from it.
It would be useful for the Committee to know whether that review has been completed. I was informed that the English legislation had a lot of teething problems. It would be useful, when we come to put similar legislation in place here, to know what lessons have been learnt.
Mr T Clarke:
If it is true, Peter has redeemed himself by suggesting that the person who makes the application should get his or her money back. I can understand that, in principle, the number of spurious complaints would be reduced, but a person who makes a valid complaint should not pay. If there is a mechanism to recoup that money, Peter, you are OK, and I agree with you.
From the council’s perspective, if that were to be the case, we would have to have a method for recouping the fee from the other party.
Obviously, there will be no complaints about high hedges that will result in both parties agreeing to cut the hedge between them.
Mr T Clarke:
The danger is that so many of these cases involve elderly people who cannot afford the high cost of making a complaint. Making a complaint becomes the least of their worries when they are trying to find the money to fill their oil tank. To charge elderly people or anyone else in fuel poverty an onerous amount of money is to ask them to decide between heating their house or complaining about trees that are causing them nuisance.
I want to follow up on that point. The issue passed me by while I was not a member of the Committee, but I am intrigued by aspects of it. The first is that, if a complainant chooses to take further action, he or she has to pay more money. Am I picking that up right? The second aspect is to do with the involvement of arboriculturists. I have dealt with them in connection with planning applications, and they do not come cheap. Far from it.
I am intrigued by the next stage of enforcement. How does it happen? Who deals with it? Is it potentially similar to the removal of litter or to noise abatement, in that environmental health, which you said is the area in which you work, Gillian, is involved?
If an arboriculturist is involved, as one may be, he or she could say, for example, that a tree is a lovely beech tree and, therefore, nothing can be done. However, the other person’s argument could be, for example, that the lovely beech tree has tilted 5 cm in the past 10 years, is moving towards their house and has unstable roots. In that situation, who bears the cost of the arboriculturist, particularly, as Mr Weir said, in contentious cases? Given the experience that you have of local government, I am sure that you have been involved in the odd dispute between neighbours. Indeed, someone came to me yesterday with a complaint about a neighbour’s rooster. It is easy to be sucked into something that is very contentious: that tree has moved a wee bit and is dangerous; no, that tree has not moved. At what point do you bring in the arboriculturist, and who pays for that?
Under the guidance that has been set out in England, it is the council that carries out the investigation and goes through the decision-making process as to the loss of reasonable enjoyment on the complainant’s property. There are many factors involved in that decision, including loss of light, amenity, and so on, and the council works its way through the various issues. If, at the end of the process, the council decides that remedial work to the hedge is needed, the guidance in England — I guess that it will largely frame the Department’s guidance — states that, to protect the council from liability, at the point of writing a remedial notice, councils should seek the expertise of, for example, an arboriculturist on how to trim back the hedge. The advice is not on the issues that surround the hedge, but on how much to take off the hedge and when, so that the hedge can be protected. Those experts are involved not in the decision-making process but in setting out the specialist work that is needed for the hedge.
That is helping you in your decision-making. However, I am trying to cut through the hedges — if I can call it that. Who pays the arboriculturist?
We made a point earlier about the fee that is charged up front. It is not simply a matter of deciding what scale the fee should be or whether it should be enough to cover, for example, five hours of an enforcement officer’s time. The formula is not as simple as that, because the situation may involve the council having to engage specialist advice, which may cost money. Arguably, that cost should be borne by the fee that the council recoups. I would caution the Committee about that.
I am not entirely happy with that. That would incur additional costs.
I agree. It is all right to say that councils need expert advice. However, creating another job for the sake of creating another job is not good.
Who do we want to pay for it? That is the interesting question.
It has to be addressed through the Bill.
The Bill, as it stands, gives protection for the councils. If a council carries out work in default, the Bill protects that council against any claims if anything happens to or goes wrong with the hedge. However, you could decide that, when a remedial notice is served, the council would not be held liable for any subsequent damage or for the hedge dying.
Someone could also be trained to give expert advice.
If councils have to have a tree expert, surely that expert would be brought in only in exceptional circumstances. I am worried that, every time a remedial notice is served and a hedge needs cut, we are drifting towards an expert being brought in.
Mr T Clarke:
Somebody needs to get a tape measure out. If a hedge is over a certain height, cut it.
In many cases, if experts are brought in, that becomes the pattern. People who do not profess to have any knowledge of a field, in order to cover their backs, will bring in experts. At another level, the Civil Service might call them consultants. I am concerned about that. I thank my colleague and you, Chairperson, for your patience.
It seems that we are discussing a deep-rooted problem. [Laughter.] I appreciate very much what Gillian and David are doing today. While I waited patiently for my colleague to come to a conclusion, I thought of two live examples of situations in which the Bill will not help. The first case is of a constituent who has a conifer at the side of his house that is more reminiscent of American redwood. If a south wind comes, his house will be gone. He has no protection. The other case is where my former council planted a line of poplar trees for screening purposes. The poplars shot up, the roots shot out, and all the neighbours’ drains, sewerage and foundations were uprooted. That problem was solved because the council was spending public money. However, I suspect that, in private cases, people will do anything to avoid spending a lot of money to resolve the issue.
Therefore, in real terms, what else will the Bill address apart from high hedges and loss of light? We need much more discussion on it. We made a major mistake by focusing so much on what has happened in England for the past eight years rather than focusing on our own situation, which is quite different. I would love to hear your views on that, particularly from Gillian, because she seems to be an expert on it.
Far from it. I appreciate that point, because, like Mr Dallat, I get those types of complaints in the office. They are real examples and are happening to real people. As I mentioned earlier, people can pursue other remedies for specific issues, perhaps through civil action. The High Hedges Bill was introduced to deal with what was perceived to be a wide-ranging problem and to help a wide number of people. The council should be the vehicle for that.
I take Mr Dallat’s point. We may need to seriously look at that. It is important.
I declare an interest as a councillor on Carrickfergus Borough Council. In my experience, the fixed penalty is a very good mechanism. Even if the council reaches a decision to issue remedial notices, considerable man-hours will be involved. Therefore, it is much better to provide an incentive to get the situation resolved and for the individuals to do the work themselves and make it their responsibility. I express my support for that thought.
In your knowledge of the subject area, have you come across any mechanism to penalise those who are being unreasonable? It would be much better if those who are unreasonable or are the source of the problem addressed it at a very early stage, and without the involvement of statutory agencies. In my constituency, there is a complete line of, I think, Castlewellan Gold that is about 40 ft high in a residential area. It is quite an intimidating sight. It is overgrown and is affecting some neighbours’ quality of life. What will happen if there is a discussion between neighbours, but the owner of the land that the trees are on will not do anything? It is obvious to any reasonable person that there is a problem. Rather than make the adjacent neighbour who is suffering bear the brunt, the introduction of some mechanism to put a fee on to the unreasonable people might send a signal that makes people solve the problem themselves before incurring a fee. That might cut the council and statutory services out of the loop. Are you aware of a mechanism anywhere else to encourage that?
I cannot think of anything that the council would initially use for making adjudication on the motives of individuals and then determining who should pay the fee.
Are you aware of how that has been enacted anywhere else, and whether a fee structure has allowed the very unreasonable person to bear some of the costs? I can see that there will be a lot of grey areas. It would be inappropriate to charge someone a fee in a situation in which no one knew who was at fault. However, there may be a stark case in which it is obvious that someone is being unreasonable and is affecting a neighbour’s quality of life, and there should be a financial incentive to encourage that person to take responsibility for resolving the issue at an early stage.
The legislation is framed in such a way as to encourage people to discuss the matter before it is brought to the council’s attention. Complainants are motivated to try to make some effort to discuss the matter with their neighbours, either by speaking to them, in writing or by using mediation. If that were done, that should rule out a number of issues that would otherwise come to the council. However, we know that there are long-running disputes that will create problems for councils.
I take the point that what is happening in England does not necessarily mean that the legislation is perfect. I have not come across any individual case in which the things that you mentioned have been looked at. Some councils in England state their fees and the process that they go through. Other councils have tinkered with it a little bit and charge in two stages, depending on the validity of the complaint and how much needs to be done. However, I have not come across anything where councils feel that, because of the particular circumstances of the case, the hedge owner will automatically be charged.
I am concerned that the Bill will not cater for many of my constituents. People in my constituency who have problems with their hedges are looking forward to the Bill resolving those problems. From what I hear today, I do not think that that will be the case, because of all the bureaucracy involved. You have talked about mediation. Who will mediate? Will the council perform the mediation between the two parties? Mediation between the two parties has already taken place in the cases in my constituency, and, obviously, the person who owns the tree wants to know nothing about it. Why is there a need to bring into the equation consultants and tree specialists? Why can we not have a simple Bill that will cater for the problem without involving such people? It seems to be such a simple issue, yet we appear to be involving so much bureaucracy, which should be cut out completely.
A simple way in which to provide expert advice would be to serve a public heath notice. Case law has shown that, in many instances in the past, we do not need to specify the ABCs of what specific work needs to be done; rather, we just state that the nuisance needed to be abated. You could say the same in this situation. Following an investigation, we could be satisfied that someone’s enjoyment of their property is being affected or their light is being reduced, or whatever, and a remedial notice would be served requiring the owner of the hedge to “abate the nuisance”. We should not be specific. It would be up to people to take their own expert advice on how to remediate the problem without killing the hedge.
England seems to have adopted a relatively convoluted and complex way of tackling the issue. We do not necessarily agree with the methods there, but we are looking at the English situation and making an assumption that the Department here will bring it in here, as has happened in the past.
Mr T Clarke:
Do you have blue recycling bins in Banbridge?
No, we have a kerbside box scheme.
Mr T Clarke:
I suggest that you put the English legislation in one of your recycling boxes. We need a model that suits Northern Ireland, and we should forget about England.
That is a valid point. We have to get to a point in the legislation at which we can do, as opposed to cannot do. Mr Dallat, among others, raised some key points about the roots of trees. Perhaps that issue can be dealt with in separate legislation.
One of the fundamental issues that we wanted to raise with the Committee was the remedy for people not complying with remedial notices. We feel strongly that we need to have a fixed penalty power, because, from experience, we know how the Magistrate’s Court in Northern Ireland treats more minor environmental offences. The threat of bringing an individual to court will not be a deterrent; rather, it will act only as a drain on expenses, time and council resources. There needs to be a fixed penalty remedy.
There needs to be a deterrent, and it could be a fixed penalty. Members have no more questions. Thank you for attending today’s Committee meeting.