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Disputes about high hedges
Local authority powers
When neighbours have an issue about the height of a hedge and how it affects one of the them from the enjoyment of their property, because of light being blocked, there may be difficulties resolving their argument. Unfortunately there is no standard way of assessing how much light is being blocked. In some cases such differences of view may have gone on for many years and may be upsetting for both neighbours.
The local authority can now step in to make a decision about the problem and can:
- issue a high hedge notice which will compel the owner with the high hedge to cut it back because it is blocking light to the neighbouring property, or
- do nothing because it does not agree that the hedge impacts adversely on the neighbouring property or, even if it does block light, other factors have to be taken account of which mean a high hedge notice is not issued.
The local authority cannot make any orders about the roots of the tree/hedge. If there is a dispute about how the roots affect the neighbouring property other ways of resolving the problem may have to be used.
Action that has to be taken before applying for help
Before applying for help from the local authority the applicant must have tried to resolve the dispute. Even if neighbours have tried to discuss the problem before but reached deadlock the local authority will want evidence that recent attempts have been made to talk about the problem to try to resolve it. The sort of evidence that the local authority will find helpful in proving that attempts have been made to solve the problem is copies of any communications between the neighbours, for example by email or letter.
Neighbours may be able to get help to solve the problem from a mediator. Some local authorities provide a mediation service. There may also be a mediation service run by SACRO in your area. Further details are on the SACRO website at www.sacro.org.uk.
Some local authorities may make going to mediation a requirement before accepting an application for a high hedge notice. Each local authority has to publicise what rules it adopts for the high hedge scheme in its area.
If the neighbours have a serious communication problem and are anxious about whether or not they will be able to resolve the dispute face to face it might be helpful to write a letter [ 46 kb].
What counts as a high hedge
The law defines the 'high hedge' quite specifically as a hedge formed by 2 or more trees or shrubs that are 2 metres (6 and a half feet) or more above ground level AND that it forms a barrier to light. You have no right to enter your neighbour's property to measure the height of the hedge. You will have to do this from your side of the wall or fence.
The trees or shrubs can be evergreen or deciduous. There may be gaps between the branches but if the overall effect of the 'high hedge' is to adversely affect the enjoyment of the property that a person could reasonably expect to have, because it blocks out light, then the local authority may agree that it fits the definition.
Some neighbours may object to very tall Leylandii or other bushy evergreens in their neighbour’s garden but if they do not block light to their property the local authority will not be able to get involved.
If your neighbour has one tree with a lot of branches that spread out and they have some impact on the enjoyment of your property the local authority will not accept any application for a high hedge notice because the hedge does not fit the definition in the legislation of 2 or more trees or shrubs. There may however be other ways to solve this problem, for example, by cutting overhanging branches on the side where it is not growing but you should let the neighbour know and should return the branches that have been cut off.
The high hedge is not on a neighbouring property
When a 'high hedge' blocks light to properties which are not next door to the ground in which it is growing, the owners of these properties can still complain about the impact on them and may want to apply for a high hedge notice.
What happens if there is a Tree Preservation Order in place or the tree is in a Conservation area
When the high hedge has a Tree Preservation Order (TPO) in place to protect it or, it is in a Conservation area, the local authority has to take account of this in its assessment of a high hedge problem. If the local authority agrees to issue a high hedge notice, the notice will override the TPO. There is already provision in law for cutting down protected trees if they create a legal nuisance. This could be, for example, when the tree makes life unpleasant or unsafe for the public generally. It may also be denying someone the right to comfortable enjoyment of her/his property.
Who can apply for a high hedge notice
The owner or occupier of a domestic property can apply for a high hedge notice if all attempts to negotiate with the hedge owner have failed. There has to be evidence that recent attempts have been made to solve the problem for the local authority to accept the application. For example, the local authority may want to see a record of any emails or letters sent between the parties.
How to apply
The local authority will have guidance available on its website to explain how to apply. Some local authorities may produce a pro forma.
How much does it cost
The fee for applying for a high hedge notice should be clearly stated on the application form and the local authority website. A local authority may charge different fees for different types of application. For example, if the high hedge is a protected species and/or is very large then experts may need to be called in to assess the situation. This could affect the fee.
When a number of neighbours are affected by a high hedge on only one property, each may have to apply for a high hedge notice for the section of the hedge that affects them.
What happens after the application is submitted
Step 1: Assessment of the application
The local authority assesses the application to check if it fits the legal criteria. It will be checking:
- does it meet the definition of being 2 or more trees or shrubs that forms a hedge, and
- does the applicant claim that it is blocking out light, and
- has the applicant tried to resolve the problem with the high hedge owner.
The application is likely to be invalid and will not be taken any further by the local authority if any of these three criteria is missing. For example if a picture is submitted with the application showing only one tree, whatever its size, this application will be dismissed. The applicant and neighbour should be advised of this as soon as possible after the decision is made.
Step 2: Decision is made about the application
Application is rejected
There is no statutory appeal against this decision. However the applicant can:
- apply for a review of how the local authority has made this decision. This is called judicial review
- raise the matter with the Scottish Public Services Ombudsman.
Judicial review is not a right of appeal or a re-hearing. Judicial review does not look at the rights and wrongs of the actual decision, but considers whether a correct legal basis has been used to reach the decision. In other words, judicial review considers whether the decision was made in the right way, not whether it was the right decision. You will usually need help to apply for a judicial review. You could consult an experienced adviser, for example, at a Citizens Advice Bureau - where to get advice.
Application is accepted
When the application is successful the local authority should normally send a letter of acknowledgement to the applicant and the high hedge owner explaining briefly what procedure it will follow. The local authority will not copy personal details, for example, an email address to any other party involved. Each party has 28 days to make comments. This is an opportunity for each of the parties to explain the situation in more detail.
Step 3: Local authority investigates problem
The local authority may visit and assess the high hedge. It can obtain a warrant to do this if the owner of the high hedge refuses access to the land.
An offence is committed, punishable by a fine of up to £1,000, if anyone tries to prevent the local authority or other designated person from entering land to assess the high hedge.
What decisions can the local authority make after the initial investigation
The following decisions can be made after the investigation is complete:
- there is no requirement for a high hedge notice. In some cases even if light is being blocked from a property there may be overriding concerns that mean the local authority does not agree to a high hedge notice being issued
- a high hedge notice is required to solve the problem now and action must be taken by a specific date. This is called the 'compliance period'.
The high hedge notice may also have instructions about regular maintenance, for the future, to prevent the problem arising again.
Who has to be told of the local authority decision
The applicant and owner of the high hedge have to be notified about the high hedge notice. In addition if the high hedge is in a National Park its head office also has to be made aware of the high hedge notice.
When does the high hedge notice take effect
A high hedge notice takes effect 28 days after it is issued. This provides time for the hedge owner to make necessary arrangements to take the action required or to appeal if they choose to do so.
Once issued, a high hedge notice is binding on the current owner and subsequent owners.
If a decision is taken by a high hedge owner to remove it completely it should let the local authority know this as the high hedge notice can them be withdrawn from that address.
You can appeal against the following decisions made by the local authority:
- not to issue a high hedge notice after investigation by the local authority
- if a high hedge notice is issued
- if a high hedge notice is withdrawn
- a high hedge notice is varied.
There is no appeal if your application is dismissed because it doesn't meet the legal criteria but you could apply for a judicial review.
Appeals have to be made within 28 days of you being advised about the local authority decision.
Before making an appeal you should make sure you understand the reasons behind the decision the local authority has taken. You will need to explain why you want to appeal therefore understanding why the local authority has taken the action it did is important for appealing against it.
Your appeal will be dealt with by an official called 'a reporter'. If you decide to employ a professional advisor you will have to pay for their services.
What process is used for the appeal
All the parties involved play an equal role in the appeal. In most cases this will be the applicant, hedge owner/occupier, and the local authority. Information provided by any party is copied to all the others and the reporter is likely to communicate in writing about what will happen next.
Time deadlines for commenting on the appeal are that those involved who did not make the appeal have 21 days to make their comments. The person making the appeal then has another 14 days to respond to these comments from all the other parties.
Decisions that can be made about an appeal
The reporter can make a number of decisions about whether the high hedge notice should stand as it was issued, or whether or not it should be quashed or amended in some way. The date for the high hedge notice coming into force can be amended.
There is no further appeal against the decision of the reporter. However the decision can be scrutinised under a process called judicial review when a sheriff can look into how the decision was made by the local authority. You will usually need help to do this. You could consult an experienced adviser, for example, at a Citizens Advice Bureau - where to get advice.
How to appeal
An appeal must be made on a high hedges appeal form which is on the eplanning website at eplanning.scot or by phoning 01324 696400. There is also information on the Directorate for Planning and Environmental Appeals (DPEA) website at www.dpea.scotland.gov.uk about submitting an online appeal or you can write to the DPEA at:
Callendar Business Park
It is possible that both parties affected by the decision made by the local authority about a high hedge notice application will want to appeal against the decision. This is allowed in this process.
What happens if the high hedge owner does not meet the requirement of the high hedge notice
If the owner fails to take the action required in the high hedge notice the local authority can organise for the action to be taken by an authorised person (endnote 1).
The authorised person can enter the land and deal with the high hedge. The hedge owner should be given 14 days notice that the local authority is going to take this action. If the hedge owner refuses to give entry to their land the local authority can apply to the court for a warrant.
An offence is committed, punishable by a fine of up to £1,000, if anyone tries to prevent the local authority or other designated person from entering land to take the required action in the high hedge notice.
Who pays for the work done by the local authority
When the owner of the high hedge does not meet the requirements of the high hedge notice the local authority will organise for the work to be done and send the bill to the owner of the high hedge.
The current owner is then liable for this debt. Administrative costs and interest will be added to this debt periodically as long as it remains unpaid.
What happens if the bill isn’t paid
When the owner does not pay the bill the local authority will issue warning letters and attempt to get the owner to pay. Ultimately it can register a notice of liability for expenses with Registers of Scotland (endnote 2).
If there is a joint owner for the neighbouring land they are jointly and severally liable for the bill (section 25(2) of the High Hedges (Scotland ) Act 2013.
If the property changes hands before the bill is paid the incoming owner becomes severally liable for the debt as long as the notice for liability has been registered at least 14 days beforehand.(section 27 of the High Hedges (Scotland) Act 2013. The financial burden of this on the new owner may be negotiated between the solicitors involved in doing the conveyancing work.
If the new owner pays the debt on the property, action can be taken to recover the sum from the previous owner who continues to be jointly and severally liable for it.
What happens once the bill is paid
Once the bill is paid the local authority has to register a 'notice of discharge' on the property register to show that the debt has been paid.