High Hedges (Scotland) Act 2013: revised guidance

6: Appeals

Right of appeal

People with an interest in the case can appeal against a decision made by a local authority to issue a high hedge notice (or not) following a formal application about that high hedge.

The Act states that people can appeal to Scottish Ministers ^[88] and those appeals will be decided by people appointed by Scottish Ministers ^[89] . The Government have decided that the Directorate for Planning and Environmental Appeals ( DPEA) will manage appeals. Appeals will be decided by a reporter from DPEA.

A person can appeal if they made the application about the high hedge to the local authority in the first place (referred to as the 'high hedge neighbour' in the appeal process) or if they are the owner or occupier of the land where the high hedge is growing (referred to as the 'high hedge owner/occupier' in the appeal process). If the property has changed hands since the application, anyone who has taken over from either of these people may also appeal.

There is no right of appeal against a local authority's decision to dismiss an application for a high hedge notice, either because the people involved in the dispute have not taken reasonable steps to settle the matter before applying to the local authority or because the application is frivolous or vexatious (that is, it has no reasonable chance of succeeding, or would bring hardship on the other person to defend something which cannot succeed). Also, people cannot appeal in cases where the application is not valid (that is, because the hedge the application relates to is not a hedge as set out by the terms of High Hedges (Scotland) Act 2013 ^[90] .

Types of appeal

1. Appeals against a high hedge notice normally happen in the following cases.

If a local authority have issued a high hedge notice requiring the height of a high hedge to be reduced, someone can appeal in the following circumstances ^[91] .

• They are the owner or occupier of the domestic property that made the high hedge application to the local authority (the 'high hedge neighbour'), and the work set out in the notice does not go far enough.

• They are the owner or occupier of the land the hedge is on, as identified in the notice (the 'high hedge owner/occupier'), and think that:
  • no notice should have been issued;
  • the work set out in the notice goes too far; or
  • the local authority haven't given them enough time to carry out the work.

The high hedge notice is suspended while an appeal is being decided ^[92] .

2. If no high hedge notice issued

If a local authority decide not to issue a high hedge notice, someone can appeal in the following circumstances ^[93] .

• They applied to the local authority for a high hedge notice (they are the 'high hedge neighbour'), and they think that:
  • the local authority are wrong to decide that the hedge is not having a negative effect on their reasonable enjoyment of their house; or
  • the local authority, having agreed that the hedge does have a negative effect, should have issued a high hedge notice.

3. If a high hedge notice is withdrawn

If a local authority have decided to withdraw a high hedge notice, someone can appeal in the following circumstances.

• They are the owner or occupier of the domestic property identified in the high hedge notice (the 'high hedge neighbour'), and:
  • they did not agree to the notice being withdrawn; or
  • the local authority have not issued a new high hedge notice.

The local authority's decision to withdraw a high hedge notice is suspended while an appeal is being decided, as is the original high hedge notice ^[94] .

4. If a high hedge notice is varied

If a local authority vary a high hedge notice by setting aside, adding to or changing some of its requirements, someone can appeal in the following circumstances.

• They are the owner or occupier of the domestic property identified in the high hedge notice (the 'high hedge neighbour'), and they:
  • did not agree to the changes to the notice;
  • think that the work set out in the revised notice does not go far enough; or
  • have some other complaint about the high hedge notice.
• They are the owner or occupier of the land the hedge is on, as identified in the notice (the 'high hedge owner/occupier'), and they:
  • did not agree to the changes to the notice;
  • think the work set out in the revised notice goes too far; or
  • have some other complaint about the high hedge notice.

The local authority's decision to vary a high hedge notice is suspended while an appeal is being decided, as is the original high hedge notice ^[95] .

How to appeal

The person making the appeal must fill in a high hedges appeal form, which they can get from the DPEA website ^[96] , by phoning 01324 696400, or by writing to DPEA, Unit 4, Callendar Business Park, Falkirk, FK1 1XR. They must send a copy of the local authority's decision and a copy of the high hedge notice, if one has been issued, with the appeal form.

The appeal must be made within 28 days of the date when the local authority sent their decision to everyone involved. This is the date of notification given by the authority (the date of notification, as defined by section 12 of the Act means the date on which the authority issued their decision letter) ^[97] . The DPEA cannot consider appeals made after the end of this 28-day period.

The person making the appeal must give a full explanation of the reasons why they disagree with the local authority's decision. It is not enough to state that they do not agree with or accept the decision. The local authority's decision letter will contain the reasons for their decision. Someone considering whether or not to appeal may want to ask the local authority to explain the reasons for their decision before deciding whether to go ahead with their appeal.

The appeal form and the explanation it contains will be treated as the 'statement of case' in the appeal and it may not be possible to add to the explanation later. However, the reporter dealing with the appeal may ask for more information.

The person making the appeal can withdraw it at any time before they receive a decision on the appeal, by writing to the DPEA. If an appeal is withdrawn, any

high hedge notice that has been suspended will become effective from the date on which it is withdrawn ^[98] .

There is no charge for making an appeal, but the person appealing will have to pay their own costs if they choose to use a professional advisor to help with their appeal.

People involved in an appeal

The following people or organisations will be involved in the appeal procedure, whether or not they made the appeal.

• The local authority who made the decision about the high hedge
• The person who complained to the local authority about the high hedge or the person now living in that property if the occupier has changed (the 'high hedge neighbour')
• The owner or occupier (or both) of the land where the hedge is growing (the 'high hedge owner/occupier')

The people involved in the appeal are known as 'the parties', and all play an equal part in the appeal and see all the relevant papers. The reporter dealing with the appeal cannot consider any document unless it has been seen by everyone else involved in the appeal. Other people who may have made comments to the local authority about the case, such as other neighbours or local interest groups (such as conservation groups), have no direct role in the appeal. However, the local authority will send any comments these other parties make to the DPEA so that the reporter can take them into account when making the appeal decision.

It is possible for more than one appeal to be made against the same decision. For example, the 'high hedge neighbour' might appeal against a high hedge notice because they think it doesn't go far enough. On the other hand, the 'high hedge owner/occupier' may appeal against the same notice because they think the hedge height should not be reduced at all.

It is important for the 'high hedge owner/occupier' and the 'high hedge neighbour' to communicate after the appeal has been made. This is because they may reach agreement on an alternative solution to the one set out in the high hedge notice. If they do, they may make a joint application to the local authority to cancel or relax the requirements of the notice and withdraw the appeal.

What happens to an appeal?

When the DPEA receive an appeal, they will send a copy of the appeal form and any supporting documents to the local authority that made the original decision (which is being appealed).

Most appeals will be dealt with through a written procedure. When telling the local authority that they have received an appeal, the DPEA will ask the local authority for all the relevant papers from their case file, including copies of the original complaint or request the local authority received, all the information and comments they received on it, any reports prepared by officers dealing with the matter, and their decision letter.

The DPEA will also tell the party affected by the appeal (the 'high hedge owner/occupier' if the appeal is made by the 'high hedge neighbour', or the 'high hedge neighbour' if the appeal is made by the 'high hedge owner/occupier') that they have received an appeal. The local authority and the other party may make comments on the appeal within 21 days of receiving notice of it. If they do this, the person making the appeal will be given another 14 days to respond.

In exceptional circumstances, the reporter dealing with the appeal may ask for more information (usually more written information). Very occasionally the reporter may decide to hold a hearing, which is a structured discussion, led by the reporter, about the issues in the appeal. Very rarely, the reporter may decide that an inquiry session is necessary, where evidence is provided and cross-examined by the other party. In these circumstances the reporter will follow the procedures set out in the Town and Country Planning (Appeals) (Scotland) Regulations 2013 (see guidance note 8) ^[99] .

The reporter dealing with the appeal will usually visit the property to look at the hedge and the property affected by it. This is known as a site visit. A representative from the local authority, the 'high hedge owner/occupier' and the 'high hedge neighbour' will usually be present during the site visit. The DPEA expect everyone to co-operate to make sure that their reporter can make a full inspection of the site so they can fully consider all the information they receive from all parties. The people attending the site visit are not able to discuss the main issues in the appeal with the reporter, but the reporter may ask them to explain the facts. The people responsible for deciding an appeal under the Act have the right to enter the property ^[100] and to take onto the land any people and equipment they reasonably need to carry out their duty ^[101] .

The DPEA will give at least 14 days' notice of the site visit to the local authority, the 'high hedge owner/occupier' and the 'high hedge neighbour', inviting them to attend ^[102] .

To help them make a decision on the appeal, the reporter will weigh up all the information gathered from the paperwork and at the site visit. They will consider the advice on dealing with applications contained in this guidance. The decision notice will give the DPEA's decision on the appeal and the reasons for it. The DPEA aim to issue a decision notice on an appeal within 12 weeks of receiving the appeal, although this may take longer in exceptional circumstances.

The reporter may allow or dismiss an appeal, either in full or in part. Depending on the circumstances of the appeal, the end result could be as follows ^[103] :

• The high hedge notice is cancelled
• The work needed to the hedge, as set out in the high hedge notice, is changed (high hedge notice is varied)
• A high hedge notice is issued (this can happen only in cases where the local authority decided not to issue a notice in the first place)
• The work to the hedge, as set out in the original high hedge notice, stays the same

Whatever the appeal decision, the reporter might change the date when the

high hedge notice comes into force. The time allowed for carrying out the work to the hedge would start again from this date.

The DPEA will tell the local authority, the 'high hedge owner/occupier' and the 'high hedge neighbour' the reporter's decision as soon as possible after it is made. Decisions will also be posted on the DPEA website.

If the reporter decides to change a high hedge notice or issue a new one, the local authority are responsible for making sure that the owner or occupier of the land the hedge is on meets the terms of the notice.

The appeal decision should be the end of the matter. There is no right for the person who made the appeal, or anyone affected by it, to appeal to the Court of Session against a reporter's decision, although they can apply for a judicial review on a point of law. Anyone considering applying for a judicial review should get legal advice on the procedures involved and the likely costs, particularly if the review were to be unsuccessful.

Data protection

We are committed to an open, transparent and accessible process for reaching decisions on high hedges and other appeals. In most cases, the information provided to Scottish Ministers is published on the internet. The DPEA's case file publication protocol ^[104] gives more information on the publication policies for particular case types. In general, it means that the DPEA will publish forms, correspondence, any associated documents (including maps and drawings) they receive, and any correspondence that was previously sent to the local authority. This includes the content of any letters of objection or support relating to the case.

You can see details of all DPEA casework on the DPEA website. The DPEA aim to keep to the Data Protection Act 1998 and remove personal email addresses, phone numbers and signatures before publishing information on the internet. Most documents are removed from the internet 12 weeks after the decision is made.

The DPEA try to make sure that anything that is abusive, indecent or unlawful, or could damage someone's reputation, is not displayed. However, people must take personal responsibility for the comments they make and send to the DPEA.

If anyone wants to raise an issue or complain about the way their personal information has been handled, request access to their personal information or raise any other issue about the DPEA, they can contact the DPEA ^[105] .