High Hedges (Scotland) Act 2013: revised guidance

2: Applying for a high hedge notice

Although the Act provides a way of settling disputes relating to high hedges, it is intended to be a last resort for the minority of cases where the people involved cannot settle such disputes themselves. The Act emphasises this by stating that potential applicants 'must take all reasonable steps to resolve the matters in relation to the high hedge' before making an application ^[5] . The Act also allows local authorities to issue their own guidance on what people must do before applying for a high hedge notice (pre-application requirements) ^[6] .

What should people do before applying for a high hedge notice?

Anyone considering applying for a high hedge notice must have tried to settle the issue with their neighbour before making an application. If a local authority receive an application where there is no evidence that the applicant has tried to do this, they must reject it. The steps people should have taken before applying to the local authority will depend on the circumstances of the case. However, it is not enough for an applicant to simply claim that their neighbour is unapproachable.

Discussion with neighbour

Usually the first step for an applicant to take is to discuss the issue with their neighbour to try to settle the problem amicably. They should keep records of all attempts to settle the issue, for example a diary of conversations held or a series of receipts for postage, and should include these with their application. The attempts should show that the applicant has made a reasonable effort to settle the dispute in a reasonable timescale before applying for a notice (it is not possible to specify what is a reasonable timescale as this will depend on the circumstances of the case).

If a hedge problem has been going on for some time, it may date back to well before the Act came into force. During this time the person may have made several unsuccessful attempts to settle the matter through negotiation. Despite this, it is reasonable for a local authority to expect them to have made another recent attempt to settle the dispute with their neighbour now that the Act is in place, before making a formal application for a high hedge notice. A definition of 'reasonable steps' to try to settle the matter without referring the case to the local authority would be two formal approaches to the neighbour within a six-month period before applying for a

high hedge notice. The applicant should keep a copy of any letters they have sent to their neighbour, with a record of their delivery, as the local authority will normally ask to see these letters as reasonable evidence of the applicant's own attempts to settle the dispute.

Mediation

Another option for settling high hedge disputes without involving the local authority is mediation. This is a way of settling differences by working with everyone involved in the dispute. Mediation can be carried out by various people, such as a member of the local community or a professional mediator. In many parts of the country, the Scottish Mediation Network ^[7] provides low-cost access to mediation services. In some local authority areas, mediation services may be provided free of charge. People should check with their local authority about the availability and cost of local mediation services, although local authority officials dealing with high hedge applications do not provide mediation themselves.

It is important to remember that although mediation can be an effective way to settle disputes, cases can still be considered without it. It is possible to make an application that shows the applicant has made an effort to solve the high hedge issue amicably, without using mediation. The local authority will decide whether the evidence they provide proves that they have made reasonable efforts to settle the dispute. If the person who owns the hedge refuses to take part in mediation, this could be used as evidence that the applicant has made a reasonable attempt to settle the matter, although the local authority should consider the cost and availability of mediation when deciding whether this is a truly reasonable attempt.

Approaching the local authority

People may contact their local authority informally to discuss a possible application. In these situations, the local authority should ask about the nature of the problem and explain the Act states that the person must take all reasonable steps to try to settle the issue themselves before making a formal application to the local authority under the Act. The applicant can then make a formal application for a high hedge notice to be served if their reasonable attempts fail to deal with the problem.

The Act allows local authorities to issue their own guidance on the Act ^[8] . The local authority should tell people about any guidance they have produced, and may also refer them to this guidance to local authorities ^[9] (updated summarised guidance is also available on the Scottish Government website on the following link: http://www.gov.scot/Topics/Justice/law/High-Hedges).

Applications where it is not clear who owns the land

There are special conditions in the Act for cases where it is difficult to establish who owns the land a hedge is on. If an applicant is unclear about who owns the land, they should take reasonable steps to identify the owner of the land and should record these steps in the application before sending it to the local authority. Applicants can contact Registers of Scotland ^[10] to find out if the land is registered. Companies House ^[11] may be able to provide information on land owned by a business. In exceptional circumstances, if it is not possible to trace the owner of land, it passes to the Queen's and Lord Treasurer's Remembrancer ^[12] .

Deciding whether an application is eligible

The Act states ^[13] that an owner or occupier of a domestic property can apply to their local authority for a high hedge notice if they consider 'that the height of a high hedge situated on land owned or occupied by another person adversely affects the enjoyment of the domestic property which an occupant of that property could 'reasonably expect to have' ' (see page 20 for more information).

Dismissing an application

A local authority must dismiss an application ^[14] if, after giving due consideration to the Act, they consider that the applicant has not taken all reasonable steps to sort out the situation, or if they consider that the application is frivolous (that it is not a reasonable application and it has no reasonable chance of succeeding) or vexatious (that is, the application is intended to harass, annoy or cause frustration or financial loss to the other person despite there being little justification for a complaint in the first place).

If the local authority decide to dismiss an application on the grounds of being frivolous or vexatious, they must tell the applicant as soon as possible, giving full and detailed reasons for doing so. Whether the local authority consider an application to be frivolous or vexatious will depend on the particular circumstances of that application. An example might be where someone repeatedly applies (unsuccessfully) to the local authority for a high hedge notice without any significant change in circumstances that would affect the local authority's decision.

Local authorities should consider whether there has been any change in circumstances before dismissing an application on the grounds that it is frivolous or vexatious. If the local authority dismiss an initial application but the situation later changes, for example because the applicant extends their house or there have been changes to the high hedge, the applicant is entitled to make a new application for a high hedge notice, drawing attention to the change in circumstances.

Withdrawing an application

The applicant may withdraw their application at any time before the local authority make their decision on a high hedge notice. Discussion and negotiation between the people involved in the dispute can continue while the local authority are considering a formal application. If all people concerned can agree a way forward, the applicant should withdraw their application.

The scope of the Act

When a local authority receive a formal application for a high hedge notice, they should make sure that the applicant has filled in all parts of the application form and paid the appropriate fee (if any).

The local authority must also consider whether an application is eligible by confirming that:

• they are the correct local authority to deal with the application;
• the applicant is the owner or occupier of the domestic property specified in the application;
• the hedge specified in the application is on land owned or occupied by another person;
• the hedge specified in the application is a high hedge; and
• the applicant has paid the appropriate fee.

The local authority do not need to decide whether the applicant's reasonable enjoyment of their house is being negatively affected by the height of a high hedge until they have confirmed that the application is eligible. See chapter 3 of this guidance (Deciding whether a high hedge notice should be issued) for more information.

Local authority responsibility for dealing with applications

Applications must be made to the local authority responsible for the area where the hedge is located. For example, if a hedge is on land within the boundaries of local authority A but the applicant lives in the area of local authority B, the application should be sent to local authority A. When the local authority receive the application, after confirming that it is eligible, they should send a copy of the application to every owner and occupier of the property the hedge is on, regardless of which local authority area the owner or occupier lives in.

Affected property

An applicant can only apply for a high hedge notice if domestic property is negatively affected by a high hedge ^[15] . The Act defines domestic property ^[16] as 'any part of a building in Scotland which is occupied, or intended to be occupied, as a separate dwelling' and 'a yard, garden, garage or outhouse in Scotland which belongs to such a building or is usually enjoyed with it'. For example, this would include a flat that is used as a home even if it is part of a tenement that contains a mix of homes and businesses, but would not include properties that are in a residential area but are used for business purposes only, for example, a dental practice or a doctor's surgery.

Location of the hedge

The Act states that the hedge must be on land that is owned by someone other than the applicant. There are no other restrictions on where the hedge must be located. It is the effect the hedge has on a domestic property that is important, rather than where the hedge is located. As part of the application, the applicant should normally provide a map showing all the main features such as the location of the high hedge, the boundaries of gardens and the location of buildings. In some circumstances, a detailed written description of the situation may be enough.

Although the Act uses the term 'neighbouring land' to describe where the hedge is growing, the hedge doesn't have to be next door to the applicant's property. This means that a hedge on 'neighbouring land' could be several gardens down the road or across the street, as long as the applicant can show that it has a negative effect on their enjoyment of their house.

The hedge does not have to be on one property only. It could extend over several properties, and it doesn't have to be growing in a garden. It could, for example, be on parkland that backs onto a garden or yard, or on business premises.

Crown land

The Act also applies to Crown land ^[17] . This means that local authorities are able to investigate and decide applications relating to high hedges on land owned by the Crown (for example, a hedge on land owned by some government departments).

Meaning of 'high hedge'

For trees and shrubs to be considered as a 'high hedge', they must be a high hedge as defined by the Act.

Section 1 of the Act defines a 'high hedge' ^[18] as:

• being formed completely or mainly by a row of two or more trees or shrubs;
• rising to a height of more than 2 metres above ground level; and
• forming a barrier to light (unless gaps in the hedge significantly reduce its overall effect as a barrier to light at heights of more than 2 metres above ground level).

It is not necessary for the whole of a hedge to fall within the definition. If parts of a hedge qualify, the hedge will be eligible for an application for a high hedge notice.

Hedges

The Act does not make it illegal to grow leylandii and other fast-growing plants. Simply growing a hedge itself is not illegal. The Wildlife and Countryside Act 1981 controls where non-native plants can be planted and states that no non-native plant may be planted in the wild. Parliament has approved a code of practice ^[19] for

non-native species to further explain this subject, and you can also find exceptions approved by Parliament on the Scottish Government webpages ^[20] .

Other factors under the terms of the Wildlife and Countryside Act 1981 may have to be considered too. This includes whether there are any protected birds, animals or plants in the hedge and how they would be affected by any work; legislation which protects wildlife; and whether any work should be carried out, or avoided, at a particular time of year (for example, if birds are nesting in the hedge, hedge cutting should be avoided during the nesting season).

The Act applies to hedges and is not designed to affect woodland and forests, which may not always be planted as hedges. For example, well-spaced tree lines are not generally considered as a hedge, even if the trees join to form a canopy. It is not normally expected that trees planted between properties would be classified as either woodland or forests, so local authorities should consider whether the trees and shrubs were planted with the intention of forming a boundary between two gardens in order to separate neighbouring properties.

Line of two or more trees or shrubs

An application cannot be made under the Act against single trees or shrubs, whatever their size. Two or more trees or shrubs do not have to form a precisely straight line to qualify as a hedge. As long as they are roughly in line, they may be considered as a hedge under the Act.

A tree or shrub that has several stems, all growing from the same trunk or root plate, is a single tree or shrub and so is not covered by the Act. This applies even though the tree or shrub may grow to be large and cover a considerable area.

More than 2 metres above ground level

Local authorities cannot accept applications relating to hedges less than 2 metres high. The 2 metres should be measured from the ground where the hedge is growing - that will usually be on the hedge owner's side. Even if the property affected is on a lower (or higher) level than the land where the hedge is located, the 2 metres should still be measured from the ground where the hedge is growing. For these purposes, ground level means the natural level of the ground where the hedge is growing. Normally, any measurements should be taken from the ground at the base of the trunks or stems of the trees or shrubs in the hedge. An exception might be where the hedge has been planted on a mound, or in a flower bed or other container that is raised above the ground, in which case the height should be measured starting from the base of the trunk - including the mound, flower bed, or other raised position.

Applicants should not have to provide a precise measurement of a hedge in order to make an application about a high hedge. The legislation does not give the applicant permission to enter their neighbour's land to take any measurements. It should be enough for them to estimate the height of the hedge when working out whether the hedge is covered by the Act.

When a local authority are considering an application for a high hedge notice, they will need to consider the height of the hedge on the applicant's side to assess the effect on their property. They will also need to confirm that the height of the hedge is more than 2 metres from ground level, and so are likely to need to measure the hedge on the owner's side.

Barrier to light

The Act applies to hedges that, despite any gaps above the 2-metre mark, act as a barrier to light. This issue is about the physical appearance of the trees and shrubs in question and whether or not they form a hedge. The local authority must decide whether a particular hedge meets this condition by considering the trees or shrubs that make up the hedge, including its shape, its growth habit, and, most importantly, what it looks like above 2 metres. Even though there might be gaps in the foliage or between the trees or shrubs, the local authority must consider whether the hedge is obstructing light.

The trees or shrubs in the hedge may have been closely planted and become so entangled that they appear as a solid green wall. In these circumstances, the matter may be straightforward as the hedge is evidently capable of blocking light. Other cases may be more difficult to judge. The trees or shrubs may be more widely spaced so their branches are not touching. Branches may have fallen off or been removed so the canopy is lifted or the growth might be straggly, with few leaves or greenery. Local authorities must assess each case individually. If individual trees or shrubs are so widely spaced, or the gaps in the leaves are so big that it is possible to see what lies behind them, the hedge may not be covered by the Act, but this decision must be based on the circumstances of each case.

In some cases, it may be possible to tell from photographs or other evidence whether a hedge forms a barrier to light. In other cases, a local authority may need to visit the property to see the hedge before making a decision. There is guidance on this in chapter 3 (Deciding whether a high hedge notice should be issued).

This guidance does not specify limits for light levels, and local authorities are free to measure light levels using any methods they consider reasonable and suitable for their needs. An example of a method of measuring light levels is the Hedge Height and Light Loss (March 2004) ^[21] guidelines which were developed by the Building Research Establishment ( BRE). These guidelines were created to help local authorities in England and Wales make decisions under the Anti-Social Behaviour Act 2003. However, the method set out in the 2004 guidelines was designed to apply only to evergreen hedges, but the High Hedges (Scotland) Act 2013 covers all types of hedges and so that method cannot be applied in all cases. Whichever method the local authority decide to use to help them make their final decision as to whether a hedge is a barrier to light, they must consider the circumstances of each case.

Application fee

The Act gives local authorities the right to charge a fee ^[22] for dealing with applications for high hedge notices but it does not set a standard fee. Instead it allows local authorities to set different fees to take account of different circumstances and to refund fees when necessary. Examples of circumstances that may be taken into account include applicants who are low earners or pensioners, situations where several applicants apply for a notice relating to a single hedge or where a single applicant applies for more than one high hedge notice at the same time because more than one hedge is affecting their property.

Applicants must send the appropriate fee with their application for a high hedge notice. We recommend that local authorities publish a list of their fees so it is clear how much applications cost.

Setting fees

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 ^[23] . The legislation is not intended to generate an income for local authorities.

Refund of fees

The Act allows local authorities to refund fees under certain circumstances, where they consider a refund to be appropriate. Local authorities must publish information about circumstances under which they will refund fees ^[24] .