High Hedges (Scotland) Act 2013: revised guidance

3: High hedge notices

When a local authority receives an eligible application, they should send a letter of acknowledgement to the applicant, giving the name and contact details of the officer who will be dealing with the case. The letter should also explain briefly the procedure that the local authority will follow, including telling the hedge owner about the application. In particular, it should make it clear that the local authority will ask the owner and occupier of the land where the hedge is situated for comments, and will share those comments with the applicant. Everyone involved should stick to the facts of the case and not try to include any other sources of disagreement, and

no-one should use offensive or abusive language in their correspondence.

Inviting representations from hedge owners

The local authority should then write to everyone who owns and occupies the land where the hedge is situated, telling them formally that they are considering an application for a high hedge notice relating to their hedge ^[25] . The local authority should include a copy of the application ^[26] with their letter, but they should remove the applicant's personal email address, phone number and signature. The approach from the local authority should not be a surprise to the hedge owner, since the applicant will have already made reasonable attempts to settle the issue. The Act also makes allowances for cases where there is difficulty confirming who owns the land ^[27] .

The letter should explain the procedure that the local authority will follow to make a decision on an application for a high hedge notice, including that the local authority may visit the site. In particular, it should ^[28] :

• invite the owner and occupier of the land the hedge is on to comment on the points the applicant has raised and to provide any extra information they want the local authority to consider, and explain that they have 28 days to do this;
• make it clear that the local authority must send copies of any comments or information the owner or occupier provides to the applicant; and
• tell the owner or occupier that the local authority has the right to enter the land the hedge is on, and explain the penalties that will apply if they try to prevent this.

If the local authority receive any information or comments from the hedge owner within the 28-day period, they must give the applicant a copy of these and must take them into account when making a decision on the application for a high hedge notice ^[29] . If the high hedge is growing within a national park, the local authority must consult the National Park Authority and take into account their comments before making a decision on whether to take 'initial action' ^[30] . The local authority may take into account other information and comments they receive (including any received outwith the 28-day period), but they do not have to under the Act.

At the end of the 28-day period ^[31] , the local authority must decide whether the height of the high hedge has a negative effect on the applicant's reasonable enjoyment of their property ^[32] . If the local authority decide that there is a negative effect, they must then decide whether the owner should take 'initial action' to put right the negative effect and prevent it from happening again ^[33] . If the local authority decide that the applicant should take 'initial action', they must specify a reasonable period of time for that action to be taken and decide whether the applicant should take further action in the future to prevent the problem from happening again ^[34] .

Although the Act does not set specific time limits on decisions, we expect that local authorities will process high hedge applications as soon as reasonably possible. Because the facts and circumstances are likely to be different in each case, individual local authorities must decide on appropriate timescales in each case.

Other interested parties

Most cases are unlikely to raise wider neighbourhood issues so local authorities do not have to publicise applications for high hedge notices. However, in some cases the local authority may also ask for views from the occupiers of properties that may be affected by the hedge and so could be affected by the local authority's decision on the application. For example, properties that lie between the applicant's property and the land with the hedge, other occupiers within a tenement block or, if a single hedge borders several properties, the owners and occupiers of those properties. Also, local authorities may want to consult specialist organisations or individuals whose expertise and knowledge will help them make a decision on the application. When the local authority are asking for information and comments from anyone, they should make it clear that they will send a copy of any comments they receive to the applicant and the hedge owner.

Site visits

After the local authority has received the application and given the relevant people the chance to provide information and comments, they should normally arrange to visit the site to consider the evidence. The purpose of the visit is not to encourage mediation or negotiation between the people involved, so there should be no discussion about the application.

It may be necessary for both the applicant and the owner or occupier of the land the hedge is on to be present during the site visit so the officer can gain access to the site and look at the hedge from both sides. A local authority should, wherever possible, try to get the agreement of the owner or occupier to enter the land to look at the hedge. During the site visit, the local authority will need to gather all relevant information, for example the height of the hedge and how far it has spread, its position on the property and, in general terms, the type of trees or shrubs it is made up of, so they can accurately describe it in any high hedge notice. It may also be useful for local authority officers to take photographs of the hedge. In some cases, a local authority will decide to carry out a site visit to decide whether a hedge forms a barrier to light (see chapter 2 'Application for a high hedge notice').

In cases where the owner or occupier of the land the hedge is on does not give the local authority permission to carry out the site visit, and the local authority cannot get the information they need in any other way (for example, from the applicant's property), the Act gives the local authority officer power to enter the land where the hedge is growing in order to carry out a site visit ^[35] . They may take onto the land any materials and equipment they need to carry out their duties and can also take away samples from the hedge where appropriate ^[36] .

The local authority must give all the owners and occupiers of the land at least

14 days' notice ^[37] of the site visit and should be prepared to produce, if asked, evidence of their authority to enter the land in question ^[38] .

It is an offence, punishable by a level 3 fine (the maximum amount is currently set at £1,000 ^[39] ), to deliberately prevent an authorised person from entering the land where a high hedge is growing ^[40] . In extreme cases, a sheriff or justice of the peace may issue a warrant authorising the officer to enter the land and, if necessary, use of reasonable force to do so ^[41] .

Negative effect on the applicant's enjoyment of their house

A local authority must decide whether the height of the hedge has a negative effect on the applicant's reasonable enjoyment of their house ^[42] . If so, the local authority must then decide whether the owner of the hedge should take action to put right the effect or to prevent it from happening again (or both) ^[43] . This action is called 'initial action'.

When deciding whether the owner needs to take action, the local authority should consider all relevant factors and assess each case individually. It will normally be necessary to consider how serious the effect of the hedge is on the applicant's enjoyment of their property against the value of the privacy it provides to the hedge owner.

The local authority must also consider whether there are any other facts they should take into account when making a decision on whether the owner should take action. They should pay particular attention to:

• the results of any consultation with interested parties and the National Park Authority;
• whether the high hedge is of cultural or historical significance;
• the effect the hedge has on the character and features of both the immediate area and the wider area; and
• any other legal or environmental restrictions that might apply.

If a local authority consider that a hedge has little negative effect, they may decide not to issue a high hedge notice. Even if a local authority find that a hedge is having a negative effect on the applicant's enjoyment of their house, after properly and reasonably considering any other relevant factors, they may decide that no action should be taken in relation to the high hedge.

Reasonable enjoyment of property

The Act applies to high hedges which are acting as a barrier to light and affecting a person's reasonable enjoyment of their house.

The reference to 'reasonable enjoyment' is important as it affects the way local authorities decide the outcome of applications. Local authorities must assess the effect that the hedge has on the applicant's reasonable enjoyment of their house and garden, so introducing a degree of objectivity to the decision-making process. The level of enjoyment the local authority consider reasonable may be different from what the applicant considers reasonable.

For example, the applicant might feel that the loss of sunlight at a particular time of year has a significant effect on their enjoyment of their house. The local authority will, however, consider what is a reasonable amount of sunlight for people to get in their property at that time of year. They may also consider whether the effect lasts for a limited time.

The local authority must also consider what is reasonable in the circumstances of the application. This means the local authority must:

• take account of all relevant factors, including the opinions of the hedge owner and the applicant and any wider considerations (they will not look only at the applicant's concerns); and
• look at each case individually.

If a local authority decide that a high hedge does have a negative effect on the applicant, the Act states that they must take account of 'the effect of the hedge on the amenity of the area' and 'whether the hedge is of cultural or historical significance' when deciding whether the owner should take any initial action ^[44] .

Other factors

Local authorities may feel that several factors are relevant when considering all the circumstances of the case. The following factors may be considered relevant (this is not a full list and other factors may also be relevant).

Ancient and long-established hedgerows

Under the Act, when making a decision as to whether or not the owner of the hedge must take initial action following an application for a high hedge notice, local authorities must consider all the circumstances of the case and, in particular, the effect on the local area and whether or not the high hedge is of cultural or historical significance. This should make sure that ancient and long-established hedgerows are treated appropriately when making decisions on high hedges.

Damage to plants

If an applicant claims that a hedge is affecting the growth of their plants, it could be difficult to confirm that the height of the hedge is causing this. In general, it is not reasonable to expect to grow particular plants in certain places or situations. Whether a hedge interferes with a vegetable patch, or growing competition plants or bedding plants, the type of plant involved will not normally be a main consideration. The local authority may consider these problems more seriously if, for example, the height of the hedge affects the growth of plants across a large portion of the garden, and so reduces the applicant's overall enjoyment of the property.

Effect of gaps

The local authority should take into account the effect of any gaps in a hedge, where relevant. The extent of any gaps and their position in the hedge could be important. In some cases, the depth of the hedge might mean that gaps have little effect. In other cases, the gaps could have a significant effect above two metres where there are gaps in the foliage (leaves).

Farm hedges

Hedgerows are a characteristic feature of the landscape and many form field boundaries which are valuable for wildlife, look attractive in the landscape, and are an important part of our culture and heritage. If a problem hedge is on farmland which may also be covered by other legislation (aimed at protecting nesting birds and securing a supply of food for a range of wildlife), the local authority should discuss the matter with countryside management staff at Scottish Natural Heritage before deciding the contents of a high hedge notice, particularly in relation to the timescale within which the work should be completed.

For more information, please contact Scottish Natural Heritage, Silvan House, 231 Corstorphine Road, Edinburgh, EH12 7AT (phone 0131 316 2600). Or you can use the online enquiries service.

Obstruction of light: domestic premises

The British Standard Lighting for buildings: Code of Practice for daylighting (BS 8206-2: 2008) ^[45] sets out the standard for what is a reasonable amount of daylight and sunlight for people to get in their house. It works on the basis that properties should receive enough natural light during daylight hours to allow the people living there to carry out normal household tasks without eye strain. We suggest local authorities should use this as a guideline as to what the applicant should expect.

The BRE used that code of practice in the Hedge Height and Light Loss ^[46] (March 2004) document as a method to calculate the height of an evergreen hedge. The local authority must decide how useful this will be in any given circumstances. The guidelines are intended to be used when a local authority are looking at the effect a hedge has on the main rooms of the applicant's house (including living rooms, dining rooms, kitchens and bedrooms) and apply whether a hedge is opposite or to one side of the window, or at an angle to it. They also suggest suitable adjustments if the land is sloped or if the hedge is set back from the boundary.

Obstruction of light: gardens

The British Standard Lighting for buildings: Code of practice for daylighting ^[47] does not apply to gardens, and local authorities cannot rely on it when considering how a hedge is affecting a person's reasonable enjoyment of their garden. In their guidance on Hedge Height and Light Loss ^[49] , the BRE based their approach on the daylight and sunlight received in the garden as a percentage of that on ground not affected by a high hedge over the whole year. The code of practice makes allowances for existing obstructions, such as the house and boundary fences, which could increase the effect of a hedge. It suggests making suitable adjustments to take account of sloping sites or situations where a hedge is set back from the boundary - although the guidance applies only to evergreen hedges.

Obstruction of light: passive solar properties

Local authorities should also give consideration to properties that have been specifically designed to use passive solar energy, rather than those which just happen to have large windows. Properties using passive solar energy do not use mechanical or electrical devices. Instead, they would normally have a main window wall facing within 30 degrees of due south, they will also have significantly larger windows on the south-facing wall compared with the north-facing wall and heating controls to make sure the solar energy is utilised. Also, they will usually be built from materials that store heat well. There may also be solar panels to capture solar energy which can then be used to heat the property or water, or to generate electricity. Normally these panels will be on the roof.

Overhanging branches

The Act deals only with applications that relate to the height of a hedge and does not deal with overhanging branches or the width of the hedge. Common law already gives people the right to cut back branches that are hanging over onto their property (but not to reduce the height without the owner's permission), as long as they offer the cuttings to the owner (this is not necessary if the owner gives the person permission to cut the overhanging branches). Although the Act does not apply to overhanging branches or the width of a hedge, the local authority may want to consider them when deciding on the content of a high hedge notice.

Privacy

On a level site, a hedge with a height of 2 metres will usually provide privacy from a neighbouring ground-floor window. A higher hedge might be justified in special cases, for example where one property can be seen into more easily than the other, and local authorities will need to look at each case individually.

Protected trees

When considering an application for a high hedge notice, a local authority will consider the cultural and historical significance of any trees that form part of the high hedge. It may be that the trees are protected, either by a tree preservation order ( TPO) or because they are in a conservation area. This test may also help a local authority to identify any trees forming part of a high hedge that should have the protection of a TPO but currently do not have. Circular 1/2011: Tree Preservation Orders ^[49] explains the TPO procedures and requirements relating to trees in conservation areas. The planning authority must normally give permission before any work can be carried out on protected trees. However, if a local authority issues a high hedge notice, neither a TPO nor being part of a conservation area prevents the work from being carried out ^[50] . However, local authorities must consider whether there is a TPO in place or whether a hedge is in a conservation area when making their decision.

Shelter

A hedge can be an effective windbreak and will usually provide good shelter from the wind for a distance of 8 to 10 times its height (these hedges are known as 'shelter belts'). A hedge that is 2 metres high should provide good shelter for a distance of 16 to 20 metres. The size of the garden that is protected by the hedge might be one factor in considering what is reasonable in any particular case. Other landscape features and the local climate may also be relevant, for example, a higher hedge height may be justified if the garden is in an exposed position in an area where there are often high winds blowing in the direction of the hedge owner's property.

It might not be reasonable to expect to use a hedge to provide full protection from the wind if it would have a disproportionate effect on neighbouring properties, for example if the hedge owner's garden is much larger than the applicant's garden and the hedge acts as a significant barrier to light to neighbouring properties. So, a shelter belt can still be considered as a high hedge as long as it meets the conditions set out in section 1 of the High Hedges (Scotland) Act 2013.

Veteran or notable trees

When carrying out a site visit to assess a high hedge, local authority officers should be aware of the effects any action might have on veteran or notable trees which form part of the hedge. A 'veteran tree' is usually in the second or mature stage of its life and has important wildlife and habitat features, including hollowing or associated decay fungi, holes, wounds, and large dead branches. It will generally include old trees but also younger, middle-aged trees with premature aging characteristics.

A tree of local importance, or of personal significance to the owner, is called a 'notable tree'. This includes specimen trees or those considered to be potential veteran trees. More advice is available from the Woodland Trust Scotland website ^[51] .

Other factors that local authorities may take into account

Where relevant, these include:

• whether the hedge is part of or within the boundaries of a listed building, inventory garden or designed landscape (gardens or grounds designed for artistic effect), or other site of archaeological or historic importance and the effect that removing it may have on the site;
• whether the hedge is in a National Scenic Area, or forms an important link with other landscape features;
• whether the hedge is within a designated nature conservation site such as a Site of Special Scientific Interest;
• whether there are any protected birds, animals or plants in the hedge and how they would be affected by any work (local authorities must consider local biodiversity action plan policies as well as relevant legislation);
• legislation which protects wildlife (for example, it is against the law to kill, injure or disturb nesting wild birds); 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).

Recording the decision and reasons for it

The Act states that local authorities must tell the applicant and every owner and occupier of the neighbouring land about their decision and their reasons for making it. However, it may also be useful to tell other interested people about the decision, such as local conservation groups. Local authorities should keep a clear record of how they reach their decisions. They may decide to prepare a report that they can send with their decision letter. This report would confirm that they have fully considered any comments and information they received in response to the application, and show how they assessed the application. The report could include the following.

• A description of the hedge and its surroundings

• Relevant policies or other legislation that might apply (for example, tree preservation orders, conservation area, local biodiversity action plan)
• The case for the applicant
• The case for the owner or occupier of the land the hedge is on
• Information and comments the local authority have received from anyone else and the results of any consultations carried out
• Appraisal of the evidence
• Conclusion and recommendation

Telling everyone involved about the decision

The local authority must tell the applicant and every owner and occupier of the land the high hedge is on (including the National Park Authority, if the hedge is in a national park) of their decision and the reasons for it as soon as reasonably possible ^[52] . If they decide to issue a high hedge notice, they must also send a copy of the notice to all of these people.

The local authority should also explain the rights these people have to appeal against the decision ^[53] and may want to refer them to the section of this guidance about appeals. The reasons for the local authority's decision should be clear, precise and as full as possible to help people decide whether to appeal. The local authority should normally send a copy of their decision letter to anyone else who has shown an interest in the case or who has been involved.

Uncommon cases

Applications may not always involve one application, one hedge and one hedge owner. Some applications might result in more than one decision letter or high hedge notice being issued.

Several applications, single hedge, one owner

A hedge around a large garden could affect several neighbouring properties. A local authority must consider separately and individually the effect the hedge has on each property that an application has been made for. They should also issue separate decision letters and high hedge notices, if they decide this is the appropriate outcome.

If a local authority receive several applications relating to the same hedge at the same time, they may link the applications when they process them to allow them to consider the relationship between the applications and the practical implications for the hedge owner (and may make special allowances in such cases when setting fees). Any high hedge notices issued should specify the section of hedge and the action the owner should take to deal with the effects of the hedge on the property named in each individual application.

One applicant, single hedge, several owners

Several people may own a hedge that forms a barrier to light and affects a single property.

In these circumstances, every owner and occupier of the properties where the hedge is growing would have an interest in the application. The local authority should ask for comments from every owner of the hedge and take these into account when deciding on the application. The fact that the hedge has several owners is, in itself, unlikely to be relevant when considering the effect of the hedge on the affected property, but the local authority may want check that the applicant has attempted to negotiate a solution with every owner of the hedge.

The local authority may issue either a single decision letter and high hedge notice and send copies to the applicant and every owner and occupier of the properties where the hedge is growing, or they could issue separate letters and notices to each owner, if they decide this is a more appropriate outcome. In these circumstances, it is important that the high hedge notice makes clear to each hedge owner what they need to do to meet the requirements of the notice.

One application, several hedges, one owner

A single application may cover more than one hedge that affects the applicant's property. When deciding on this type of application, the local authority should consider the effect of each hedge individually as well as their combined effect.

The local authority should send a single decision letter to the applicant and the owner and occupier of the land where the hedges are growing, but may need to issue separate high hedge notices for each hedge or part of hedge that meets the legal definition and is affecting the applicant's property.

One application, several hedges, several owners

A single application may cover more than one hedge with more than one owner if the hedges affect a single property. The local authority should invite every owner and occupier of the properties where the hedges are growing to comment on the application, and should tell them the outcome. They could send a single decision letter to the applicant and every owner and every occupier of the land where the hedges are growing, but would need to issue separate high hedge notices for each hedge or part of hedge that meets the legal definition and is affecting the applicant's property, making clear what action each owner needs to take to meet the requirements of the notice.

Change in the ownership of the neighbouring land

If ownership of the land the hedge is on changes while the application is being considered, the application should continue. However, the local authority might consider suggesting that some extra time is allowed to settle the dispute amicably. If this attempt fails, the local authority should make sure that the new owner has all the relevant papers and is given a chance to provide information and comments on the case.

Local authority are the high hedge owner

There are no special procedures for dealing with applications where the local authority is the hedge owner. However, we hope that in cases where a problem hedge is owned by a local authority, the dispute will be settled without the need to make a formal application.

If a local authority receives an application relating to a high hedge which they own, they should process it in the normal way. It is important that the process for deciding such applications is seen to be fair and impartial. A local authority should consider possible conflicts of interest when setting up their procedures for dealing with applications for high hedge notices. Each local authority should consider this issue separately to create a system that works within their organisation. If an official who has been involved in earlier negotiations about the hedge is a part of the decision-making process, they should declare this conflict of interest and should no longer be involved in considering the application.