High Hedges (Scotland) Act 2013: revised guidance 2019

4: High hedge notices

122. Once the local authority has decided that the owner needs to take action regarding a high hedge, they must issue a high hedge notice^[54]. This notice enforces the local authority's decision and sets out the action the hedge owner must take to restore a suitable balance between the applicant's and the hedge owner's enjoyment of their house, and also the needs of the wider community.

123. A high hedge notice will specify the initial action the owner must take, and also any action they must take to prevent the problem happening again in the future. A high hedge notice remains in force for as long as the hedge is on the land^[55] or until a local authority withdraws it^[56].

124. A high hedge notice should normally be a separate document, issued with the local authority's decision letter. The local authority must provide a copy of a high hedge notice to the applicant and every owner and occupier of the land the hedge is growing on, and must tell them the reasons for their decision^[57]. If the high hedge is growing on a national park, they must also send a copy of the high hedge notice to the National Park Authority^[58].

Contents of a high hedge notice

125. A high hedge notice must^[59]:

• identify the high hedge it relates to and where it is growing;
• identify the domestic property it is having a negative effect on;
• state the date on which the notice will take effect, which must be at least 28 days after the date on which the notice is given^[60];
• state the initial action^[61] the hedge owner must take and the time limit^[62] for taking that action;
• state any action the hedge owner must take to prevent the problem from happening again (preventative action)^[63] following the time limit for the initial action;
• tell the person receiving the notice about their right to appeal^[64]; and
• tell the person receiving the notice about the local authority's power to carry out the work set out in the initial or preventative action, and to recover the costs of doing so, if the owner does not meet the conditions^[65] of the high hedge notice, and explain that it is an offence^[67] to obstruct a person authorised to carry out the work on behalf of the local authority.

126. Most high hedge notices will contain both initial action and preventative action. Ongoing maintenance requirements will also be included so there should be no need for an applicant to make further applications about the same hedge.

Description of the hedge

127. The hedge should be described in enough detail so that there is no doubt what the notice relates to. The position of the hedge within the property should be specified and, wherever possible, should be shown on a map or plan attached to the notice. A general description of the type of trees or shrubs in the hedge should also be included so it will be clear whether a replacement hedge has been planted.

Date on which the notice will take effect

128. This marks the start of the compliance period (see paragraphs 132-133 of this guidance), during which the owner must take the initial action set out in the notice. The notice will take effect at least 28 days after the date on which it is issued. This allows time for the hedge owner to make the necessary arrangements to carry out the action.

Initial action

129. The initial action covers the one-off work the owner must carry out to the hedge within the compliance period to put the problems right. This can include:

• action to remove the negative effect; or
• action to prevent the problems from happening again; or
• a mixture of both.

130. These actions allow local authorities to state that a hedge must be cut below the height that is necessary to remove the negative effect if this will help to prevent the problems from happening again, although the height to which the hedge is cut to remove the negative effects may not always be exactly 2 metres. The Act does not prevent local authorities from deciding that a hedge should be removed completely if they consider that to be the most appropriate way to deal with the negative effect, although removing part of the hedge without reducing its overall height would not be considered as meeting the conditions of a high hedge notice if the notice orders a reduction in the height of the hedge.

131. If the local authority has not decided that it is necessary to completely remove the hedge, but the action needed to deal with the negative effect of the hedge results in the hedge looking unsightly, the owner may consider removing the hedge. In these cases, the local authority should remind the hedge owner to make sure they are keeping to any other legislation or conservation area requirement.

Compliance period

132. The high hedge notice must set a time limit for carrying out the initial action. This is known as the 'compliance period' and starts from the date when the notice takes effect. Even though there may be pressure from the applicant for early action, the compliance period needs to reflect what can reasonably be achieved, bearing in mind other legal requirements.

133. When setting the compliance period, local authorities should take account of how much work is involved as well as other factors, such as whether specialist equipment or professional help will be needed. The compliance period should also take account of any special circumstances that limit when the action can be taken, such as the need to protect nesting birds.

Preventative action

134. 'Preventative action' covers work that needs to continue after the compliance period to make sure that the hedge does not cause problems in the future. The initial action set out in the notice (the one-off work to the hedge) is likely to provide only short-term relief from its negative effects, and a high hedge notice will normally need to include longer-term action to prevent problems from happening again in the future.

135. As with initial action, preventative action should not include removing part of the hedge if the hedge is later allowed to grow above the height set out in the 'preventative action' section of a high hedge notice.

How long a high hedge notice lasts for

136. The high hedge notice remains in force until the local authority formally withdraw it. The notice would have no practical effect, however, if the hedge was removed or there was some other change in circumstances. An example of changing circumstances would be if the property affected by the hedge was no longer used for domestic purposes.

Specifying the action in the notice

137. Both the initial action and preventative action need to be carefully specified in the high hedge notice so it is clear what the owner must do to meet the conditions of the notice. Concentrating on the end result, rather than specifying the method to be used in carrying out the work, may be the most effective way of achieving this. In deciding what work must be carried out under the high hedge notice, local authorities may want to follow a three-step approach.

Step 1: taking care of the problem

138. First, the local authority must decide what action is necessary to remove the negative effect the high hedge is having on the applicant's reasonable enjoyment of their house (initial action). The action the local authority say is needed must be in proportion to the effect the hedge is having on the applicant's reasonable enjoyment of their house. This means striking a balance between considering any problems the hedge causes to the applicant against the possible benefits and enjoyment the hedge brings to the hedge owner and the wider community. The same principles apply when deciding what initial action might be appropriate in a particular case.

139. The work needed will depend on the severity of the problems the hedge is causing to the applicant and whether it is simply a matter of reducing the height of the hedge, or whether other action would be more effective. It is possible that reducing the height of selected trees forming the hedge to open up gaps, or removing lower branches (known as 'crown lifting'), may be effective. In some cases, appropriate action might include reducing the width of the hedge as well as the height. The owner may need to take action along the whole length of the hedge, although work focusing on a shorter section may sometimes be enough to deal with the problem. In particular, the local authority may decide that the owner needs to take action on only part of a long hedge if the hedge borders other properties besides the applicant's.

140. The local authority will also need to consider whether the proposed work is likely to affect the way the hedge grows, which could harm the applicant's enjoyment of their house in the future and so might need further action. For example, reducing the height of some types of trees might result in hedges becoming wider. Also, the work is likely to affect other people and the local authority will have to consider the hedge owner and other residents, especially in relation to the character and general appearance of the area. They should only consider general factors, such as how the work will affect the appearance of the hedge, if they are relevant to the particular case, for example, if it is important to preserve the contribution that the hedge makes to the wider appearance of the area or to retain its function as a screen or shelter. Otherwise, it might be more appropriate for local authorities to deal with these factors by giving advice on good practice. They must also consider legal restrictions, such as whether the hedge is in a conservation area, or whether any tree preservation orders, or covenants (restrictions) within the conservation area, apply.

Step 2: allowing for regrowth

141. Having decided what action is needed to deal with the effect of the hedge, a local authority should consider whether the owner should take any further 'initial action' to prevent problems coming back, particularly if the hedge consists of fast-growing trees or shrubs. If appropriate, a local authority may decide that a hedge should be reduced below 2 metres in height to allow for regrowth. This might allow the hedge to grow between yearly (or more frequent) trimming and still not cause significant problems.

Step 3: ongoing maintenance

142. The local authority should decide whether long-term maintenance of the hedge is needed to prevent future problems (preventative action). The preventative action needed will depend on the nature of the initial action. However, it will usually take the form of continuing to maintain the hedge at its new height or shape, by regular trimming.

Safety and good practice

143. Local authorities should encourage safe working on and around trees and should consider providing, with the high hedge notice, practical advice on how the hedge might be cut safely and maintained so that it remains attractive. Even with smaller trees, there is a risk of crushing or falling injuries, particularly if working at height or with chainsaws is involved. The Arboriculture and Forestry Advisory Group set up by the Health and Safety Commission has published a number of tree safety guides^[68]. If an owner is likely to need specialist equipment or professional help to carry out the work, the local authority may want to refer them to the Arboricultural Association's list of approved contractors^[69]. Local authorities should also consider sources of expert advice, such as BS 3998: 'Recommendations for Tree Work'^[70]. If the local authority provide any safety or other advice, other than the initial and preventative action set out in the notice, this is for information only and cannot be enforced.

Varying or withdrawing a high hedge notice

144. The Act allows a local authority to vary or withdraw a high hedge notice^[71]. Before varying or withdrawing a notice, the authority must consider how this would affect the applicant's reasonable enjoyment of their house. They must also consider all the circumstances of the case, including any cultural or historical significance of the high hedge and its effect on the local area.

145. Depending on the circumstances of the case, a local authority might also need to get arboricultural, horticultural, ecological, landscape or conservation advice, or consult specialist organisations, before deciding to vary or withdraw a high hedge notice.

146. If the local authority decide to vary or withdraw a high hedge notice, they must tell every owner and occupier of both the domestic property affected by the high hedge and the land the high hedge is growing on, tell them the reasons for the decision and about their right to appeal, and give them a copy of any varied high hedge notice.

147. If there is a change in the circumstances of a case, any person involved in the case can approach the local authority at any time to ask them to consider varying or withdrawing the high hedge notice. In some cases, it may be more appropriate to vary an existing high hedge notice rather than ask for a new application.

Change in circumstances

148. Over time, circumstances might change to the extent that meeting the terms of the high hedge notice could have a negative effect on the applicant's or hedge owner's reasonable enjoyment of their house. This might apply, for example, if development (such as new housing being built) on either the affected property or the land the hedge is on means that the hedge is no longer an adequate wind screen or does not provide enough privacy. Another example of a possible change would be change of use or increased activity on either the affected property or the land where the hedge is growing, if the hedge does not screen this out.

Correcting errors

149. If the local authority make a mistake in the notice, they may vary it and issue a revised notice as soon as they become aware of the mistake. Revising the notice will mean consequential changes to the date on which the revised notice takes effect and, possibly, the compliance period.

The applicant and the owner or occupier agree a different solution

150. It is possible that the applicant and the owner or occupier of the land where the hedge is growing (or anyone who moves into either property) might agree different one-off work (initial action) or different longer-term maintenance (preventative action) to the work set out in the high hedge notice. If the work that is agreed goes further than the requirements of the notice (for example, keeping the hedge trimmed to a lower height than stated in the notice), there is no need to make the arrangement formal. The owner or occupier of the site the hedge is on can, at any time, do more than the notice requires, unless other legal restrictions apply.

151. If the agreed solution does not go as far as the work set out in the high hedge notice (for example, allowing a hedge to remain higher than stated in the notice), the hedge owner would need to apply to the local authority for the notice to be varied to reflect this agreement. The aim of the Act is to settle disputes about high hedges and encourage the people involved to communicate and negotiate with each other, so a local authority should allow an agreed solution if it is appropriate, considering their other obligations and the circumstances of the case.

Cases not covered by the Act

152. Changes in the particular circumstances of a case might mean that the Act no longer applies to the hedge, and so the high hedge notice can no longer be enforced (for example, if the affected property is no longer classed as a domestic property).