2nd March 2020

High hedges – Property in Scotland

You may have seen press reports recently about a dispute between the owners of two properties in Inverness.  The local authority used statutory powers to require one party to significantly reduce the height of a number of Leylandii trees which were a barrier to light and adversely affected the enjoyment of a neighbouring property.  The owner of the property with the offending trees tried, unsuccessfully, to challenge the ruling at the Court of Session in Edinburgh.

A boundary wall or fence requires Planning Permission in Scotland if it is more than 2 metres high.  Although there is no restriction when planting trees or shrubs to form a hedge, problems can arise if they are planted in unsuitable places or are not a maintained property.

If you have concerns over the height of a neighbouring hedge and feel that it is blocking light to your own property the best solution is to reach an agreement with your neighbour but if that isn’t possible the terms of the High Hedges (Scotland) Act 2013 (“the Act”), which came into force on 1st April 2014, may assist.

The aim of the Act is to provide a solution where high hedges interfere with people’s right to ‘reasonable enjoyment’ of their property.  It does this by giving home owners and occupiers the right to apply to the relevant local authority for a high hedge notice.

What is a high hedge?
Section 1 of the Act defines a ‘high hedge’ as:

  • a hedge formed by a row of 2 or more trees or shrubs;
  • that are 2 metres (6 and a half feet) or more above ground level; AND
  • that forms a barrier to light.

You may find a very tall Leylandii or other hedge in your neighbour’s garden annoying but if it does not block light to your property the local authority is unlikely to be willing to get involved.  Similarly, if it is only one tree causing the problem the Act will not apply.

How do I make an application to the local authority for a high hedge notice?
You can check the website of your local authority for guidance on how to apply. Some local authorities may produce a pro forma.  The Act is intended to be a last resort so the local authority is unlikely to get involved unless you can demonstrate that you have taken all reasonable steps to resolve the dispute without success.  You should consider what evidence you can supply to support this, for example, copies of letters and/or emails, minutes of a meeting or a note of the dates and times at which you attempted to discuss the issue with your neighbour.

The Act states that any fees local authorities charge for an application for a high hedge notice should aim to cover the reasonable costs of considering the application but it is for each local authority to determine the fee which it will charge.  At the time of writing East Dunbartonshire Council charges £401, East Renfrewshire Council charges £477.50 and Glasgow City Council charges £500.

If your application is successful the local authority will start an investigation usually involving a visit to see you and the hedge.  Each party has 28 days to make comments. This is an opportunity for each of the parties to explain the situation in more detail.

What are the possible outcomes following a successful application?
The following decisions can be made after the investigation is complete:

  • there is no requirement for a high hedge notice. In some cases even if the light is being blocked from a property there may be overriding concerns that mean the local authority does not agree to a high hedge notice being issued;
  • a high hedge notice is required to solve the problem now and action must be taken by a specific date. This is called the ‘compliance period’;

The applicant and owner of the high hedge have to be notified about the high hedge notice.
A high hedge notice takes effect 28 days after it is issued.
This provides time for the hedge owner to make necessary arrangements to take the action required or to appeal if they choose to do so.
Once issued, and subject to the right of appeal, a high hedge notice is binding on the current owner and subsequent owners.
The high hedge notice may require the hedge owner to reduce the height of the hedge or to remove it altogether.
It may also include instructions about regular maintenance, for the future, to prevent the problem arising again.
If a decision is taken by a high hedge owner to remove it completely it should let the local authority know this as the high hedge notice can then be withdrawn from that address.
Both the applicant and the hedge owner have a right to appeal within 28 days if they are unhappy with the local authority’s decision.

What happens if the high hedge owner does not meet the requirement of the high hedge notice?
If the hedge owner fails to take the action required within the time period specified in the notice, the local authority can organise for the action to be taken by an authorised person (section 22 of the Act).  The authorised person can enter the land and deal with the high hedge. The hedge owner should be given 14 days notice that the local authority is going to take this action. If the hedge owner refuses to give entry to their land the local authority can apply to the court for a warrant.

Once the work has been completed the local authority will send the bill to the owner of the high hedge.  The current owner is then liable for this debt. Administrative costs and interest will be added to this debt periodically as long as it remains unpaid.

When the owner does not pay the bill, the local authority will issue warning letters and attempt to get the owner to pay. Ultimately it can register a notice of liability for expenses with Registers of Scotland (section 25 of the Act).

Once the bill is paid the local authority has to register a ‘notice of discharge’ on the property register to show that the debt has been paid.

What happens if there is a Tree Preservation Order in place or the tree is in a conservation area?
Some trees are protected. If a tree blocking light to your garden or property has a Tree Preservation Order (“TPO”) in place to protect it, or it is in a conservation area, the local authority has to take account of this in its assessment of a high hedge problem but, if the local authority agrees to issue a high hedge notice, the notice will override the TPO.

For help and advice on any of the matters raised please speak to a member of the Blackadders Residential Conveyancing Team.

Katharine Smith, Director
Residential 
Blackadders LLP
@LawyerKSmith

www.blackadders.co.uk 

Information correct as at 28 Feb 2020.

 

 

The opinions expressed in this blog are of the author only and do not necessarily represent the opinions of Blackadders LLP.

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