High Hedges (Scotland) Act 2013: revised guidance 2019

5: Meeting the conditions of a high hedge notice

153. High hedge notices should include a clear statement that the owner or occupier of the land the hedge is growing on must carry out the work stated in it. Whether this is the owner or occupier will depend on who is legally responsible for managing the hedge according to the contractual arrangements between them. The decision letter sent by the local authority should also explain that the notice does not give the applicant the right to step in and take the necessary action themselves.

What happens if an owner or occupier does not meet the conditions of a high hedge notice?

154. The Act grants powers to local authorities to ensure owners of high hedges comply with the conditions of a high hedge notice issued in a timely fashion, subject to any wildlife consideration. Local authorities should look to make full use of these powers to ensure that decisions are fully complied with and successful applicants do not feel frustrated by a perceived lack of action.

Informal action

155. A local authority might want to encourage the hedge owner or occupier to meet the conditions of the high hedge notice by sending them a letter formally warning them of what will happen if they do not take the necessary action. If investigations show that the owner or occupier was not aware there was a high hedge notice, the local authority should provide them with a copy and should normally give them more time to meet the requirements in it.

Enforcing a high hedge notice

156. The high hedge notice should make clear that if the owner or occupier of the land fails to meet the conditions of the notice, the local authority can, if necessary, enter the land to carry out the work^[72] and recover any expenses^[73] reasonably involved in doing this. Unlike the hedge owner, the local authority cannot do more than the work set out in the high hedge notice.

157. If the local authority decide to take action, they should plan, organise and carry out the work carefully. The local authority may take onto the land any people, materials, and equipment that they need and can do anything else that is reasonably necessary to carry out the work. Local authorities need to consider the following when preparing to take action:

• What exactly do they need to do to enforce the requirements of the high hedge notice?
• What equipment will they need?
• What are the physical characteristics and limits of the site?
• Are there any risks to the people carrying out the work and how can they meet relevant health and safety regulations?
• How long is the work likely to take and what is the best time of day to do it?
• Who has the necessary skills? The local authority's own staff or a private contractor?

Entry to land

158. A local authority must give the owner or occupier of the land on which the hedge is on 14 days' notice^[74] if they plan to enter their property and do the necessary work. The Act gives local authorities the power to enter a property only if there is no other way of carrying out the work to the high hedge^[75]. Besides the local authority giving notice, the officers carrying out the work must, if asked, provide evidence that they are authorised to enter the land in question^[76]. If the land is unoccupied, they must leave it as effectively secured as they found it^[77].

Criminal offence

159. It is good practice for a local authority to warn the people concerned that they could face criminal prosecution if they try to prevent their officers from carrying out their duties when coming to carry out work on the hedge.

160. Anyone who deliberately tries to prevent an officer, or other person authorised by the local authority, from entering the site in question and carrying out the work is guilty of an offence^[78] which, if they are convicted, is punishable by a fine of up to level 3 on the standard scale^[79] (currently up to £1,000).

Warrants authorising entry

161. If the owner refuses to allow the local authority to enter their land (or if the local authority expect to be refused entry), or if the land is unoccupied, the local authority may apply to the court for a warrant^[80] authorising them to enter the land. Warrants may allow local authorities to use reasonable force, if necessary, to enter the land and allow them to enter buildings, which may include the house of the hedge owner or occupier, if there is no other reasonable way to access the high hedge. If the local authority are concerned that this could lead to a 'breach of the peace', the local authority should consider whether to involve the local police.

Recovering the local authority's expenses

162. The Act states that a local authority can recover from the hedge owner any expenses reasonably involved in enforcing a high hedge notice, including administrative expenses and interest^[81].

Notice of liability for expenses

163. To make sure the local authority can recover their expenses, they can register a notice of liability for expenses with Registers of Scotland^[82]. By registering the notice, local authorities tell any prospective owners of the property about any outstanding debt and so make sure that the debt is settled if the property is sold.

164. If the local authority register a notice for liability of expenses^[83] in the Land Register or General Register for Sasines^[84] at least 14 days before a new owner takes over the right to the land, the new owner will be liable for any expenses the previous owner owed. The new owner^[85] will be responsible for paying the expense, but will have the right to claim the money back from the original owner^[86]. When the local authority receive the expenses they are owed, they should register a notice of discharge^[87] with Registers of Scotland.

Enforcement procedures

165. Each local authority must decide its own policy and approach to enforcing high hedge notices. Most enforcement action is likely to be reactive, mainly responding to neighbours' complaints that the owner or occupier of the relevant land has not met the conditions of a high hedge notice. Local authorities should consider developing a set of priorities to help manage cases effectively. The degree of harm caused by failing to meet the conditions of the notice might be one factor the local authority should consider when deciding whether to take action. For example, failing to carry out the initial one-off work to deal with the negative effect of the hedge within the time allowed might be considered more serious than allowing the hedge to grow just above the specified height between yearly trims.

166. Local authorities should also consider whether the owner or occupier has properly met the terms of a high hedge notice, for example, in some cases the hedge owner has removed part of the hedge rather than cutting the hedge down to the height specified in the high hedge notice. In these cases, the owner has not met the notice, since the work carried out did not match the work set out in the notice.

167. When local authority officers are assessing whether enforcement action is necessary and deciding what action to take, they should do the following:

• acknowledge the complaint that the owner or occupier has not met the requirements of a high hedge notice;
• investigate the current facts and the case history;
• prepare a situation report, which includes any legal advice on issues raised by the investigation;
• send the relevant decision-maker within the local authority a considered recommendation on the enforcement action to be taken;
• record this decision and take the relevant action;
• report the outcome to the person who brought the matter to the local authority's attention;
• monitor the practical effects of taking enforcement action; and
• review the need for possible further enforcement action.

Keeping a record of the case

168. Throughout the enforcement process it is essential to maintain a complete, accurate, and up-to-date record of all investigations carried out and an assessment of the results. This record is important even in cases where the initial decision is not to take formal enforcement action. If it is necessary to return to the case in the future, officers dealing with the case will quickly be able to find the relevant facts and history. The case record should contain the following information:

• details of the complaint claiming that the owner or occupier has not met the conditions of the high hedge notice;
• the date the local authority received the complaint;
• the name of the person making the complaint;
• the address of the land the hedge is on;
• the name of the owner and any separate occupier of the land in question;
• a brief description of the hedge, including any relevant photographs;
• details of how the owner or occupier has not met the conditions of the notice as established by the local authority's officers following initial investigations;
• a summary of the factual evidence;
• a summary of the case history;
• a summary of any enforcement action recommended by the local authority;
• details of any enforcement action taken.

169. The local authority's decision notice will vary according to the circumstances, but might include:

• the date they told the owner or occupier of the land the hedge is on about their decision;
• a summary of the action the owner or occupier must take;
• the time limit within which action must be taken;
• the result of the action taken by the local authority;
• any other powers granted by the Act;
• details of any costs the local authority have recovered; and
• a summary of any monitoring of the situation.