High Hedges (Scotland) Act 2013: revised guidance 2019

1: Introduction

Background

1. The High Hedges (Scotland) Act 2013 (the Act) came into effect on 1 April 2014 and grants local authorities the power to act as independent adjudicators in disputes between neighbours about high hedges within their local area. Prior to this date there was no legislative solution in Scotland to resolve disputes between neighbours about overgrown hedges.

2. The Act came about through a Private Member's Bill, sponsored by Mark McDonald MSP and supported by the Scottish Government. The Scottish Government carried out a consultation in 2009 which asked respondents whether they would prefer a legislative solution to resolve high hedge disputes, or whether it was best left to individuals to resolve privately (as was previously the case). Over 95% of respondents expressed a preference for government intervention.

3. The legislation was designed to provide a solution to the problem of high hedges if they interfere with people's right to 'reasonable enjoyment' of their property and if neighbours have not been able to resolve the issue amicably. In 2017, the Scottish Parliament's Local Government and Communities Committee carried out post-legislative scrutiny of the Act and found that it had helped many people affected by hedges which had been planted in unsuitable places or were poorly maintained. However, the review also found some areas where the legislation was not working as well as it could.

4. Since the Act was introduced, there has been a lot of debate over what it is designed to cover. The policy memorandum published alongside the High Hedges Bill makes it clear that the policy aim behind the legislation was to tackle issues in relation to hedges. Therefore, a high hedge can only be a high hedge if it is, first and foremost, a hedge.

5. In 2016, the guidance accompanying the Act was revised and the definition of a hedge was removed. Following the post-legislative scrutiny carried out by the Local Government & Communities Committee, it was recommended that a hedge be defined in any revised guidance. This document contains a definition of a hedge which should help local authorities and communities understand what the legislation is designed to capture.

6. There will, of course, be people who do not feel that they will be able to achieve a resolution to their specific hedge or other vegetation problem through the Act. In respect of this, we need to be clear that the purpose of the Act is to ensure that there is a means by which a dispute can be resolved; that does not mean that it will always be resolved in favour of those applying to have hedges reduced. The purpose of allowing local authorities to adjudicate in such cases is to ensure that both parties are able to have their say and allow a balanced judgement to be reached.

7. We recognise that there will always be some people who feel that the Act has not worked effectively for them because it has not given them the result that they wanted. That does not necessarily mean that the Act has not worked as intended.

Purpose of guidance

8. This document provides guidance from the Scottish Government to local authorities on the Act^[1]. As set out in Section 31 of the Act, local authorities must have regard to this guidance when carrying out their duties under the Act and when issuing any guidance of their own on the Act^[2].

9. If neighbours have not been able to amicably settle a problem relating to a high hedge, the Act aims to offer a potential solution by providing an effective method to settle the dispute. A high hedge is defined for the purposes of the Act as a hedge that is formed wholly or mainly by a row of two or more trees or shrubs, is over two metres high and forms a barrier to light^[3].

10. The definition of what is covered by the legislation is provided in section 1 as a whole - paragraphs (a) to (c) of subsection (1) limit what type of hedge a "high hedge" can be. The legislation was not designed to provide a wider statutory right to reasonable enjoyment of a property which may be breached by any nuisance vegetation. When the Scottish Parliament considered the High Hedges Bill it was agreed that if single trees and other types of plants and vegetation were to be included it would run the risk of creating complex and unwieldy legislation that would be difficult to enforce.

11. The Local Government & Communities Committee recommended, following its post-legislative scrutiny of the Act, that the revised guidance should clearly set out that applications should be considered in terms of the impact of the vegetation rather than whether or not the barrier was originally planted as a hedge. However, this recommendation does not reflect the objective of the legislation. When a local authority receives an application for a high hedge notice, it must first establish if the vegetation to be considered is a hedge. It then must consider if it meets the criteria of a high hedge. If all of the criteria are met, then a local authority will consider the impact of the vegetation. The impact of the vegetation is not a test for whether an application can be made.

12. The Local Government & Communities Committee also recommended that the Scottish Government use the powers available under Section 35 of the Act to clarify what is and what is not a high hedge. The powers under Section 35 allow Ministers to change the definition of a "high hedge" without primary legislation, for example, the height a hedge must be to qualify as a high hedge, or to add or remove types of tree or shrub. Using these powers would not remove the requirement that the vegetation must be a hedge. This guidance is not a statement of the law, which is set out in the Act itself. It is meant to support the Act by providing extra advice to local authorities on meeting their obligations under the Act, and makes clear to everyone with an interest in this issue, including hedge owners and those affected by high hedges, how we expect the Act will work in practice.

13. The guidance needs to be fairly general as the effects of a hedge on a neighbouring property will vary from case to case. The main role the Act gives to local authorities is to act as an independent third party to consider the circumstances of each case in order to identify whether a high hedge is having a negative effect on a neighbour's reasonable enjoyment of their house. The Act allows local authorities to issue their own guidance on the Act^[4], which is likely to be more specific about how that authority will carry out their duties under the Act. However, again, it is important to keep in mind that Section 31 of the Act states that local authorities must have regard to this Scottish Government guidance when issuing their own guidance on the Act.

14. This is the third version of Scottish Government guidance published since the Act came into force in 2014. The Scottish Government has no plans to publish further revised guidance unless there is a change made to the legislation by the Scottish Parliament.