04 Apr 2014

High Hopes for High Hedges (Scotland) Act 2013

High Hopes for High Hedges (Scotland) Act 2013

Laura Considine, Partner, looks at The High Hedges (Scotland) Act 2013 which came into force on 1st April 2014.

Laura Considine, Partner, looks at The High Hedges (Scotland) Act 2013 which came into force on 1st April 2014.

On 1st April 2014, the High Hedges (Scotland) Act 2013 came into force. This piece of legislation is intended to help neighbours resolve disputes caused by tall hedges which block out light. As with all legislation, the Act will be open to interpretation and it will therefore be interesting to see how each local authority interprets the relevant provisions.

The first provision likely to be open to interpretation is the meaning of a “high hedge”. In order for a hedge to qualify under the new legislation, the following three tests must be satisfied:

  • The hedge must be formed wholly or mainly by a row of two or more trees or shrubs;
  • The hedge must rise to a height of more than two metres above ground level; and
  • The hedge must form a barrier to light.

Several questions arise when considering whether or not these tests have been satisfied. Firstly, although deciduous plants and trees are potentially covered by the legislation, given they will be without leaves for much of the year, it is not clear whether or not they will be considered to form a barrier to light. Secondly, it remains to be seen whether or not plants or trees growing on top of a structure such as a wall will satisfy the minimum height test.

If the owner or occupier of a property believes a neighbouring hedge satisfies the “high hedge” definition and it is adversely affecting their enjoyment of their property then they can apply to their local council for a High Hedge Notice. It is important to note however, the legislation is very clear that an applicant must first have taken “all reasonable steps” to resolve matters and the council must dismiss an application where this requirement has not been satisfied.

Practically, in order to apply for a High Hedge Notice, the applicant will be required to complete an application form and to pay a fee likely to be in the region of £450.

Where an application is accepted by a council, they must notify the hedge owner and/ or the occupier of the property and allow them a period of 28 days to respond. In reaching a decision, the council must consider all representations together with the general amenity of the area including any cultural or historic significance. The existence of a Tree Preservation Order will not prevent action being taken by the council but councils are required to consider this point when reaching their decision.

If a council considers a hedge to fall within the definition of “high hedge” and where it is adversely affecting the enjoyment of the applicant’s property then the council must consider whether to require action to resolve the problem and/or to prevent a recurrence. The council may enter the land in question in order to obtain further information and where action is considered necessary they must issue a notice as soon as reasonably practicable. 

Included in a High Hedge Notice will be a deadline by which the hedge owner has to meet the terms of the notice. If the owner fails to take remedial action by the deadline, councils have the power to carry out the work and to recover the cost. A High Hedge Notice runs with the land so will affect future purchasers and it will therefore be necessary for solicitors to check if any such notices apply in all future conveyancing transactions. Furthermore, where the council has had to carry out work and seek recovery of the cost they may register what is known as a Notice of Liability for Expenses against the property. This means that all future owners will be liable for the cost of the work and it will therefore also be important for solicitors to check for the existence of such notices.

For both unsuccessful applicants and aggrieved owners who have been served with a High Hedge Notice, there is a right of appeal to the Scottish Ministers. However, both parties should be aware that in order to be considered, an appeal must be submitted within 28 days of notification of the original decision. An appeal will have the effect of suspending the High Hedge Notice until the appeal is determined.

In conclusion, there is no doubt that some owners will seek  to use this new legislation where they consider the enjoyment of their property is compromised but how successful they will be depends largely on how strictly or otherwise councils interpret the provisions of the Act.

Laura Considine, Partner

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