Local Government and Communities Committee

Meeting date: Wednesday, May 24, 2017

Official Report 564KB pdf

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High Hedges (Scotland) Act 2013

Good morning, and welcome to the 16th meeting of the Local Government and Communities Committee in 2017. I remind everyone present to turn off mobile phones. As members’ papers are provided in digital format, members may use tablets during the meeting.

Apologies have been received from our deputy convener, Elaine Smith, who unfortunately cannot be with us this morning.

Item 1 is post-legislative scrutiny of the High Hedges (Scotland) Act 2013. The committee will take evidence from the Minister for Local Government and Housing, Kevin Stewart. I welcome the minister and his Scottish Government officials: Paul Cackette, chief reporter, and Julie Robertson, policy officer. I thank them for coming and invite the minister to make some opening remarks.

Good morning, convener and committee. Thank you for inviting me to speak to the committee.

Post-legislative scrutiny is a key part of the Parliament’s work and I applaud the committee for carrying out scrutiny of the High Hedges (Scotland) Act 2013. The act was intended to recognise the detrimental impact that high hedges may have on people’s lives and enjoyment of their homes. The fact that there was no legislative solution in Scotland to resolve disputes between neighbours prior to the introduction of the act means that it is crucial to monitor its effectiveness.

The act gives home owners and occupiers a vehicle through which they can take positive action to resolve disputes about high hedges when all other options have failed. It means that individuals are empowered to take action through their local authority, which can enforce decisions that strike a balance between the competing rights of neighbours to enjoy their homes. For a number of people, the introduction of the legislation brought hope that years—sometimes decades—of stress and negative impact on their mental health and wellbeing would finally be addressed. However, from the evidence submitted to the committee and people writing to the Scottish Government, I am aware that some people feel that their expectations of how the legislation should operate in practice have not been met.

In May 2016, following discussions with Scothedge and local authorities, the Scottish Government published revised guidance to accompany the act. It was hoped that that would address some of the concerns that had been raised during its first two years of operation. However, a number of issues are still being raised, and I therefore welcome the committee’s post-legislative scrutiny.

When considering high hedges, it is important to remember that the hedge owner and the hedge neighbour may have completely opposite perceptions of the harm and impact of a hedge. There are two sides to any argument, but years of unresolved dispute lead to a greater and greater inability to compromise, and the possibility of finding a mutually agreed solution that delivers a reasonable and balanced outcome diminishes. That is why hedge owners and hedge neighbours need the act and a formal resolution process to fall back on when all else has failed.

The Scottish Government is keen to listen to the concerns that are being raised and is open to suggestions on how the legislation or the accompanying guidance can be improved to ensure that they are working as they were intended to and that home owners can continue to enjoy their property as they wish to.

That is very helpful for setting the context. We will now move to questions.

Thanks for attending, minister. Could you give us your general impressions of how effective the act has been, in the light of some of the evidence that we have heard and the concerns that you have already mentioned?

It is difficult for me to give a general impression of how the act has worked nationwide. As a constituency MSP, I would say that the act has worked well for a number of my constituents, although there are still some constituents who are quite unhappy with the outcomes that they have experienced. In many circumstances where there have been disputes for a long period, it has been helpful to many people.

Do you think that councils have been working within the spirit of the act? As Mark McDonald told us, it is really there as a last resort. Do you think that it is not being used as that in some cases?

Again, it is difficult for me to judge what is happening in all 32 local authorities. Regarding the “spirit of the act”, as you describe it, the policy memorandum that accompanied the High Hedges (Scotland) Bill stated that the principal policy objective of the bill was

“to provide a solution to the problem of high hedges which interfere with the reasonable enjoyment of domestic property.”

The act, as it is now, does that by providing

“an effective means of resolving disputes over the effects of a high hedge where the issue has not been able to be resolved amicably between neighbours.”

As far as I am concerned, the best potential for resolving disputes lies in the pre-notice stage, before the formal procedures of the act start. That is where I think the maximum scope for resolution lies. Once formal procedures begin, it is not so much the spirit but the letter of the act that comes into play. You heard that in earlier evidence from, I think, Kevin Wright of Aberdeen City Council.

That leads neatly on to my question. You have mentioned Aberdeen City Council. Last week, Mark McDonald told us that, as far as he was concerned, the definition of “high hedge” was as contained in section 1 of the act. We have heard evidence from home owners who are unhappy with the act and its inability, as they perceive it, to deal with their issues, and they have raised concerns with us about what a hedge actually is. Aberdeen City Council said:

“If the trees and/or shrubs in question cannot be defined as a hedge in the first instance the trees and/or shrubs are considered to fall out with the scope of the Act.”

Do you agree with the council’s observation?

There has been some debate about the definition of “hedge”, over the piece. In the guidance that was published when the 2013 act commenced, reference was made to the “Oxford English Dictionary” definition, but officials received a number of complaints that several local authorities were using that definition as a reason not to consider applications.

The definition was felt to be adequate when the High Hedges (Scotland) Bill was passed, but if the committee feels that the balance of evidence that you are hearing supports a change to the definition, I am open to considering a change. However, definitions are always difficult. I was a member of the Local Government and Regeneration Committee, which scrutinised the bill, and I think that the dictionary definition, which has been removed from the guidance, was a good one. I will be interested to hear what the committee has to say, and we will consider the issue in light of your findings.

Given your experience with the bill as it went through the Parliament, do you take the view that the act is not designed to deal with trees, forests, woodlands and shelter belts?

The 2013 act was not designed to deal with trees, woodlands and forests. When the committee was looking at the issue, you can imagine how many things came into play. We took evidence not just from people in Scotland who had experienced difficulties but from those in other jurisdictions. At the time, it was argued in certain quarters that the bill should cover single trees—other jurisdictions, including the Isle of Man, allow for interventions over single trees. The committee felt that such an approach would be unworkable.

We took evidence from the likes of the Scottish Wildlife Trust on areas such as woodlands. It was because of the evidence that we received from other jurisdictions and other bodies that the 2013 act was passed in the form in which it was passed.

That reflects what local authorities told us, which is that the 2013 act was intended to deal just with hedges, and specifically high ones. Do you agree with Aberdeen City Council that, if foliage is not a hedge, it cannot fall within the scope of the act? In other words, do you think that the definition of “hedge” is an important element in the interpretation and operation of the legislation?

The definition is an important element, without a doubt.

Thank you.

The committee has perhaps been looking at the issue from the wrong angle to an extent. Let me describe a scenario. Someone plants three or four small trees—I am not a horticulturist, and the kind of tree is irrelevant for the purposes of the scenario—which form an artificial barrier that blocks sunlight and interferes with a neighbour’s reasonable enjoyment of their property. Does it matter whether the barrier is made up of three or four small trees or a hedge? I know that it was not you who introduced the bill, minister—

No, it was not.

What is so special and unique about hedges, as opposed to other forms of plant life, in interfering with someone’s reasonable enjoyment of their property?

That was the scope of the bill; it dealt with high hedges and not nuisance vegetation or anything else. The question about the scope of the bill is best asked of Mr McDonald, who introduced a bill to deal with nuisance high hedges and not other forms of plant life and vegetation.

The committee has to deliberate on the evidence that we have heard, but my gut tells me that, if someone creates a horticultural barrier between one property and another that prevents a person’s reasonable enjoyment of their property, it does not matter tuppence whether it is a hedge or trees. However, the act seems not to deal with that.

10:15  

The definition in the act includes lines of trees that form a hedge. I am not a horticulturist either, but this comes back to the definition of a high hedge. A line of trees can form a hedge, but there can be a line of trees that does not form a hedge. If we look out of the window behind you, convener, and across to the former Scotsman building, we see a line of trees with gaps. Some folk would look at that and argue that it is a hedge, while others would argue that it is not a hedge.

The issue is the definition, and that is why I am willing to look at anything that the committee puts forward on that. Originally, the “Oxford English Dictionary” definition was included in the guidance, but it was removed because it was seen as being too prescriptive.

Okay. That is helpful. Mr Simpson, do you have a supplementary question on that?

Yes. It is on the same issue. When we spoke to Mark McDonald, he confirmed that trees and shrubs are included in the act. However, the key thing is not whether they formed a hedge when they were planted but what they grow up to be and whether they end up forming a barrier that blocks out people’s light. When Mark McDonald appeared before the committee, he was certainly of the view that the guidance should be revised. What are your thoughts on that?

As I said, I am happy to look at the guidance and the committee’s recommendations. Originally, the guidance included the definition from the “Oxford English Dictionary”, but the guidance was changed because some folk were unhappy with that definition. If the committee can come up with a different definition, I will be happy to look at it.

Do you have the definition that was removed?

Do you mean the “Oxford English Dictionary” definition?

Yes.

I do not have it with me. I am looking at my officials—

We do not have it with us. It is quite a lengthy definition of what a hedge actually is. We can certainly provide it to the committee.

Do you feel that it is a better definition than the one that we have ended up with?

The key point is that, as a listening Government, we removed that definition from the guidance because some folk felt that it was too prescriptive. If the committee decides that it should go back in, I will be more than willing to look at that.

You mentioned that you issued revised guidance. Was that last year?

It was in May 2016.

Convener, because of the complexities of the guidance and the fact that I do not have full knowledge of every aspect of it, even though it is in my briefing, may I bring in Ms Robertson to talk in more detail about the changes to the guidance?

Absolutely.

When the act came into force, the Scottish Government received a number of letters from people who raised a number of issues that they had experienced with early applications, and officials worked closely with Scothedge and local authorities to go through the guidance to try to identify whether anything in it was causing problems.

The “Oxford English Dictionary” definition is of a “hedge”, not a “high hedge”. Obviously, the definition of “high hedge” is in the legislation, but we were trying to define the references in the legislation to hedges. That is what the dictionary definition was for.

We received a lot of correspondence from organisations such as Scothedge, which I know you have had evidence from, that the definition was restricting the applications that local authorities were considering, because they were sticking to the strict definition of a hedge. Those organisations took the same view as some committee members are taking: that it should not matter whether it is a hedge or another type of vegetation. In agreement with the local authorities and Scothedge, the dictionary definition was removed.

Scothedge, local authorities and others looked over the guidance in detail. We also worked to get the Plain English Campaign’s crystal mark to ensure that the guidance was easy for members of the public to follow and understand.

I disagree somewhat with Mr Wightman and Mr Simpson on the definition. The act clearly states the definition of a high hedge, but there is inconsistency in how local authorities are interpreting the guidance and legislation, and we have heard evidence about that prior to today. Local authorities apply various levels of fees across the country, for example, and there is inconsistency in who takes responsibility at local authority level. In some authorities, the planning department looks into the matter; in other authorities, tree experts—or whoever it might be—are sent out to assess whether a hedge is a high hedge. There is also an issue about timescales and how long the process takes. There is inconsistency across the board at local authority level, which I honestly do not think relates to the interpretation of what constitutes a high hedge.

Would the Government consider setting out more structured guidance to local authorities on how the process should be carried out?

Again, I am willing to look at those issues, but how local authorities go about their business or set fees is a matter for them. If the committee were, for example, to say that there should be full-cost recovery for all the works, we could end up in a situation where fees rise dramatically. My understanding is that Inverclyde Council’s fee of £182 is the cheapest and that Glasgow City Council’s fee is £500. The highest fee in England is about £600.

The committee has had evidence from local authorities. I think that Glasgow City Council said that the fee should be the same as a planning application fee, because the same amount of processing is needed and given the greater likelihood of costs being higher because of the rights of appeal.

If the committee wanted to try to create fee uniformity, discussions with the Convention of Scottish Local Authorities would have to be undertaken. You would probably find that fee uniformity would mean full-cost recovery. You could end up with a greater level of fees, which might impede some folk’s ability to take action.

We have heard various examples of people who, having been served a high hedge notice, have cut down every second tree in order to circumvent the legislation. The local authority then carries out an assessment and says, “It’s not a high hedge, because every second tree has gone.” Do you have a view on that type of situation? Does the Government need to look again at tightening up that part of the legislation?

I will bring in Mr Cackette at this point, because he will have a view on the matter, as chief reporter in the directorate for planning and environmental appeals.

As I understand it, the concerns about every second tree or part of the hedge being cut down mainly relate to people who do that before a notice is served—in other words, people who do that in order to avoid that situation arising. Hedges can be cut after notice is served, and I will deal with that in a minute. It is a risk that part of the hedge gets cut down, and I can certainly see why people who are in a process would be frustrated if the legislation is seen to be circumvented or if attempts are being made to circumvent it.

In those circumstances, although the councils would make the point that, technically, it was no longer a high hedge, the suggestion would be that there was still an underlying issue to be addressed. The role of pre-application mediation is therefore vital. The role that councils play in trying to get an amicable resolution before they serve a notice is a good thing, although it opens up the possibility that people will take evasive action.

When a council serves a notice, it is difficult for it to do anything other than serve it on the basis of the hedge as it stands. If the hedge is altered by the time that the notice is served, there is a difficulty. There is a lot of flexibility in what the DPEA does, because we try to achieve a sensible resolution of the issue that is before us. The starting point for us is that the hedge is the hedge at the time that the notice is served. If a hedge is different—because somebody has cut down part of it or because, after the passage of time, it looks different, and the impact is different—the reporter will normally seek to identify what it was like when the notice was served. In some cases, they have sought photographic evidence of the hedge as it was, because it has been suggested that the hedge has changed in the meantime. In most cases, they make a judgment on the basis of what the hedge was like at the time when the notice was served.

There are a number of stages in the process. There is pre-application, which could involve mediation that would not cost either party any money. At that stage, the neighbour with the hedge may take remedial action and the problem may go away—that would be a positive thing. At our first evidence session, we heard that the process is working as a deterrent in some parts of the country, which is a good thing.

If that does not work and the application goes ahead but, just before the high hedge notice is served, every second tree or whatever is cut down, is it possible to have the enforcement action carried out as if the neighbour had not altered their hedge in any way? If so, could that enforcement include removing the hedge entirely? Would that idea fly in terms of the law and the regulations? My thinking is that it would be just tough if the hedge owner had ignored the pre-application and mediation and if someone had put in an application. Let us say that it was self-evident that the hedge owner was going to lose the case and an enforcement notice was going to be served but they tried to circumvent that process by tinkering with the hedge. If the enforcement action would have been to take the whole hedge away or get it all below 2m or what have you, could that action still be enforced in law?

I will answer the second question first. In making a determination in such cases, the reporter will look at all the circumstances and will try to achieve a fair balance and an outcome that recognises the rights of both parties. If there has been some suggestion that one party has acted in the way that you describe, the reporter can do two things: they can remedy the immediate problem and they can set out steps in the high hedge notice to avoid the problem recurring. I imagine that, if there is a belief that steps have been taken to circumvent the process but longer-term steps could be taken that would ensure that the hedge owner could not let the hedge grow and start becoming a problem again, the notice could contain such longer-term steps.

Normally, a notice would have two components: the steps that are to be taken to remedy the difficulty and the steps that are required to avoid the problem recurring. Avoiding its recurring might risk someone taking steps to get round the notice. However, if it was a hedge when the appeal was taken, the reporter could take that into account in varying a notice, if that is what they chose to do, to minimise the risk that the person who had behaved in that way would simply ignore the notice by allowing the hedge to grow again and become the nuisance that it was before. There is capacity and scope within the decision-making process to guard against that.

10:30  

I follow that and I apologise for asking the specific question again, but if the reporter were to serve a notice on the original hedge, could they specify that the hedge should be removed completely or that everything should be removed to below 2m?

Yes.

So the notice would specify what the remedial action should be, but in the meantime the neighbour could come along and do something less than that and the reporter could say, “Oh, that’s okay then.” Surely that is not acceptable?

The reporter could do that, but it would depend on the circumstances—they would have to make a judgment whether they should uphold the notice that required the lower level to be maintained or vary it along the lines that you suggest.

Does the guidance say that the reporter should base a high hedge notice on the condition of the hedge at the point of application or the condition of the hedge at the point when the notice is served?

Just to be clear, the question was to do with whether a hedge was a high hedge at the time that the notice was served. That is why the point is relevant. The fact that the condition of the hedge might have changed is a factor that the reporter can take into account.

We should perhaps go over what would happen under normal circumstances. If there were no change and the matter went to the reporter on appeal, the possible outcomes of the appeal would be that the reporter could uphold the local authority’s decision or high hedge notice; quash the decision, with or without issuing a high hedge notice; quash the high hedge notice that the local authority issued; or vary the terms of the notice, by changing the work required or the compliance period—that is what Mr Cackette was describing.

What is the picture across the country? In your initial statement you spoke about the pre-application process. How does the Government collect data from across the country to ensure that the legislation is having the intended outcome? We have heard some anecdotal evidence that it is working very well and other people have told us that it is not working at all. I am sure that the truth lies somewhere in the middle. Where is the data to back it up?

You are looking for local authority data, rather than the appeals data, so I will bring in Ms Robertson.

The Scottish Government does not collect data from local authorities. There is no requirement in the 2013 act for local authorities to provide us with data regularly, as they must under other legislation. We expect that some local authorities will keep a record of the number of applications that they process. However, we know that where an application is dismissed by a local authority, the local authority does not tend to record that information, because it does not see it as an application.

Local authorities will keep records of the applications that they accept, receive and process. The DPEA will keep records of the appeals, but the Scottish Government does not collect any data.

So there is data for the appeals when they reach the DPEA, but there is no onus on local authorities to give the Scottish Government every piece of data.

To go back to Ms Gilruth’s earlier point, additional complexities, such as data collection and compliance with reporting to Government, would add to the cost. You are looking at costs and trying to create uniformity through discussions with COSLA, but if you wanted the Government to collect and analyse data—as I said, I am willing to look at that—it would add to the cost.

I am not sure whether the Government should collect data, but I am trying to establish what data currently exist. Any data that is collected will be collected at the local authority level. Do all local authorities collect the data in the same way?

It is a matter for each local authority. I do not know how each local authority would collect that data.

Is there a requirement for local authorities to retain such data?

There is no requirement in the 2013 act.

Local authorities may or may not retain all the data, and if they do retain that data, they may have different procedures and processes, so even if they were to report it to the Government there could be 32 different ways of doing that.

Yes.

Are we not stabbing fish in a barrel while blindfolded, without any fish being in the barrel in the first place?

I am willing to look at all such things. However, if you add to the complexity of the notice, the cost will be much higher—and the cost falls on the person who applies for the notice.

I am willing to look at all the matters that are being asked about here, and I will read the committee’s findings very carefully. However, you must recognise that there are implications if you choose to go down routes that require changes to legislation and guidance.

Okay. Can we put cost to one side for a second, minister? We will eventually deliberate on a report on the matter in the normal way. I am asking for your thoughts not on cost but on the fact that there is no requirement for local authorities to retain any data, that there is no guidance on how the data should be retained even if they did retain it, and that there is no requirement for them to give the data to the Government. Furthermore, no analysis is being done. How on earth can the committee conduct post-legislative scrutiny?

Before you look at anything else, you should ask yourselves, as a committee, what benefit there would be in collecting and keeping that data. What would that add—

Minister, can I stop you for a second? We are not asking the committee; we are asking you, as the minister, for your thoughts on whether that data would be of value. We will ask ourselves the question, but will you answer the question that I have asked you?

I have no evidence to suggest that the collection of a massive amount of data would help to deal with the difficulties with high hedges.

No one said that there was going to be a massive amount of data. Would you be willing to explore the possibility of the consistent recording of data across the 32 local authorities?

As I have said to you throughout all of this, convener, I am pretty pragmatic and willing to look carefully at the committee’s findings. However, I will also have to consider the implications of adding certain things, although I am willing to do that. I would have to be convinced that there was a real benefit in adding to the bureaucracy, which would inevitably add to the cost that falls on the people who apply for the notices.

I want to push you further on this, minister. Let us try again, because I detect a slight evasiveness in your citing of the cost. There is no requirement on local authorities to retain data—that is up to them. However, might it make sense to tell local authorities that, if they decided to retain and store data, although it would not be a requirement it would be helpful to the Government if they did it in a certain way, because at some point the Government or the committee might want to conduct a piece of post-legislative scrutiny, and doing that may be of value to such scrutiny. Do you see a value in doing that, minister?

I do not know what the value or lack of value would be in having uniformity in data collection across the country. The uniformity of that collection could cover a myriad of different ways of doing it. I do not see the benefit of collecting large amounts of data and reporting it centrally when all that that is likely to do is give us an indication of how many notices there have been in each local authority area, how many have been upheld and how many have not been upheld.

We get a fair indication of where things are working or not working from the appeals that come to Mr Cackette. Adding to the amount of data per se would definitely add to the cost—there is no doubt that, if you discussed the matter with COSLA, it would tell you that there would be an additional cost to it—and that additional cost would fall on the folk who apply for the notices. I do not know whether there would be any benefit in that.

I have been pretty open in saying that I am willing to consider any recommendation that the committee makes. I have not been avoiding anything; I am saying that I am willing to consider the evidence that the committee has heard and the recommendations that it makes.

Well, minister, I merely say that you spent two minutes answering a question that you have answered already, not the question that I just asked you. I will repeat the question that I asked you, which is pretty straightforward. Local authorities may or may not collect data on the matter. There is no requirement for them to do so. Would it be helpful if they collected it consistently?

I note that the only part of my question to which you alluded in your answer concerned the fact that you did not see a benefit in local authorities collecting data in the same way. That staggers me, actually, because it is a huge benefit and it is something that the Parliament has been seeking for many a year. I cannot believe that we are having a disagreement on that. Do you see a value to local authorities collecting data in a consistent way, whether it is compulsory or otherwise?

I am saying—I thought that I had made it plain—that the likelihood is that, if you or I at some point asked local authorities to collect the data in a consistent manner, they would come back via COSLA and say that there was a cost to that. That cost would end up being borne by the notice payer.

Well, COSLA has given evidence to the committee and it gave evidence to the Health and Sport Committee when I was its deputy convener, and I have to say that, whatever we are debating, it tells us that there is a cost. That is its fall-back position on anything that we ask it to do. I still do not think that you have answered my question, minister.

I am somewhat confused, minister, by your saying that an additional cost would certainly be associated with a standardised approach. We do not know that that will be the case. Surely, if we strip out 32 different layers of bureaucracy and put in place something that is standardised throughout the country, that reduces bureaucracy and costs.

I do not know how each local authority is gathering the data at the moment. It may be an adjunct to other systems that they use. If the committee wants consistency across the board, a new system might well be required. I am not an information technology expert and I would not want to sit here and say how each local authority is gathering the data, because I do not know.

I appreciate that. Our concern is that we just do not know what the picture is nationally. The Scottish Government has no idea what it is, because as things stand Mr Cackette gets the evidence only at the very end. You find out only once the process has happened, so we have no idea what is being done before we get to that stage.

You have to consider the matter from the post-legislative scrutiny side. I am willing to consider the committee’s recommendations in that regard, but I repeat—I am sorry if I am being repetitive—that such standardisation may well come at a cost. In this case, the costs are borne by the folks who apply for notices. The question is whether, if those costs became excessive, fewer folk would apply for notices and get the benefit of the legislation.

The cost is up to local authorities. You make quite an assumption in saying that the cost will be passed on to the person who applies for a notice. It is up to the individual local authority, not central Government, how much it charges. Therefore, we cannot assume that local authorities would increase costs.

But it may well be that they would.

It may, but it may not.

It may or it may not. I could go back to the previous line of questioning about whether costs should be uniform throughout the country. If it comes to the stage of local authorities considering full cost recovery for the work, as may be the case in certain parts of the country but not others, there may be a rise in cost if there is a rise in the bureaucracy around the legislation.

My point was that we would be taking out 32 different layers of bureaucracy to create uniformity, so it is not about increasing bureaucracy but about streamlining it and having a more consistent approach. That would give us the national picture that we need to hold the legislation to account. We do not have that just now.

Or, as I said earlier, it could be that the recording that is being done at the moment might be done as an adjunct to current systems and, if you want the uniformity that is suggested, that may mean putting something else in place, which may come at a cost.

We have had a bit of an exchange already, but let us assume that there is no cost to any of this. Let us say that the money tree exists and that we can just press a button and get all the information. Do you see a value in having the information?

10:45  

Ms Robertson deals with this on a day-to-day basis, so it is probably better to ask her whether there would be any advantage to the Government in having a national picture. We have a national picture in some regards, given the information that comes through the appeals process. Would having the picture of each application, each refusal and all the rest of it add to the Government—

So, the minister does not have a view on whether there would be value in having that information, but Julie Robertson does.

That is not what I said, convener.

Tell me again what you said, minister.

I said that I did not know whether it would add anything for us to have information from each local authority about how many applications are made, how many are refused and so on. I do not know what value that would add, but Ms Robertson might.

I am staggered by that, minister.

Around the first anniversary of the act we wrote to all local authorities to get an indication of how many applications had been made in the first year. That was a few years ago now. The information that we got back was just the number of applications received. We have not had any need or cause to go back to the local authorities to ask for the relevant information for the past couple of years. The antisocial behaviour legislation contains provisions that require local authorities to collect information on the number of antisocial behaviour orders imposed and to provide that information if ministers request it. However, local authorities do not have to give us the information routinely and there is no set way for them to collect or present it.

Okay. Thank you very much.

As a former councillor, I would be staggered if councils did not keep such information—I imagine that they all have it. Would it not be an idea simply to ask for it to see what is out there?

The information could be asked for, as Ms Robertson said. Having uniformity in how the information is retained locally might come as a cost, as you well know from your days in local government and as I know from my days in local government. If central Government says that local authorities must do things in a certain way or use a certain system, that comes at a cost. In this case, as I have been keen to point out throughout, the cost is likely to be put on the person applying for the notice, which means that folk would be less likely to do so.

I am not suggesting that there should be uniformity. I am saying that there is probably a lot of information out there already. It does not matter to me whether the information is uniform, but there will be information that has already been collected. Surely it is just a matter of asking for it. If you were to ask for it, you could pass it on to the committee.

I am quite happy to ask for that information and to pass it on to the committee. That is not a difficulty at all.

Thank you.

I refer back to a question that you were asked at the beginning. One of our difficulties with this post-legislative scrutiny is that, although we have spoken to a number of people, including local authorities, from the point of view of hearing from users of the legislation it is clear that we have heard from the people who are unhappy with it. People who are happy with legislation do not, on the whole, tend to write letters to committees about how wonderful it is. To what extent do you think that the legislation is working, has had a beneficial impact and has managed substantially to remedy many of the complaints that were made before it was passed?

I look at the issue from a constituency viewpoint, which is where I have the most evidence of what has happened. Over the years, several of my constituents have had difficulties with high hedges and those folks who have got their cases resolved through the legislation are very happy people. Many of them did not have to resort to the notice, because when the legislation first came in, some problems seemed to resolve themselves.

It would be fair to say that I still have a couple of constituents who face difficulties that have not been resolved, because the trees that are causing them a problem do not fall under the definition of a high hedge.

That is fine. In a small number of cases, people have bought properties where there is already a hedge that causes problems. Do you have a view on whether there should be an onus on those who buy a property to be aware of any such problems in advance?

I am not aware of any cases in my patch that relate to that. Such cases might have come across the desks of Julie Robertson or Paul Cackette at some point.

I am not aware of any such cases. If someone was looking to buy a property where a high hedge notice had been issued, that would be made known to them when they were buying the property. It would come down to the individual owner. The person who previously had the property might not have had the same issue with a hedge that the person buying it does. If a person buying a house had an issue with a hedge, they would be expected to undertake the pre-application requirements, such as speaking to the neighbour and perhaps going through mediation first.

As far as the DPEA is concerned, I am unaware of any appeals in which that issue has arisen. The reporters look at the appeals and try to reach the right answer, while being mindful of the interests of both sides. It would be reasonable and legitimate to take into account the fact that the hedge is pre-existing when deciding the outcome.

If memory serves me well—you may want to check this, convener—when the bill was scrutinised by the Local Government and Regeneration Committee, there were some folks who had issues not necessarily with hedges on neighbouring properties, but with wild woodland, including hedges, in areas where new-build housing was going up, and who were concerned what the impact of that would be. If memory serves me well, there was evidence on that from the Scottish Wildlife Trust. It might be worth the committee having a look at that.

We have touched on appeals throughout the morning, but I seek more clarity on that. Do we believe that the appeals process is robust enough? That is my first question and I will follow on from that.

Mr Cackette and his reporters deal with appeals, so I will let him answer.

From the cases that we have, there is no real evidence to suggest that the way in which we carry out appeals is lacking in robustness. Our record of the number of appeals is broadly consistent with the evidence that was provided to the committee from local authority witnesses about the declining number of cases. We had an initial peak and the numbers have since gone down. In total, 149 cases have come to us, of which 119 are live cases or cases that require to be determined. That number has declined over the piece.

We know that we face certain challenges in the way in which we require our reporters to determine the cases before them. As I said earlier, they seek to achieve a fair balance and reflect the rights and interests of both sides in coming to their decisions. Very often, many of the disputes relate to entrenched positions and the parties are not always keen to see a fair balance but want an outcome that reflects their point of view.

There can be difficulties between neighbours and, unusually, we find that sometimes we have to have more than one site visit, because it is not possible to have a visit where everyone is willing to be in the same garden at the same time.

I will offer one more bit of information. We have had a small number of cases. I am grateful that we have had no appeals beyond the DPEA. There is the capacity to go to judicial review. That has not happened yet and long may that continue.

Should the act allow for an appeal in circumstances where the local authority has decided that something is not a hedge?

In one sense, that is not really for me to answer, because I deal with operational aspects. My general observation is that there is no reason why that should not be the case. People regard it as an oddity that they can appeal against certain aspects, such as the finding that there is no adverse impact or the decision to serve a notice, but that they cannot appeal on whether something is a hedge in the first place, which is a question of fact. It is not always an easy question of fact, as we know; nevertheless, it is a question of fact.

My only word of caution is, were a change to the legislation along those lines to be suggested, because that is a matter of fact and not at the discretion of the local authority, if a reporter were to decide that something was a hedge, we would need to know what should be done next. Should they refer the matter back to the local authority to start over again? Should the DPEA take over the function of the local authority in exercising discretion about what to do? Should it take on the dispute resolution process at that stage?

You would need to think through reasonably carefully what the implications of such a change would be, not least because if the DPEA were to take on those functions, the appeal route would be closed off. That route would be excluded because we would be deciding the notice at first instance. Technically, it would be possible to do that, but I suspect that the best way would be for us, if we agree with the appellant that something is a hedge, to refer the matter back to the local authority to redecide. Of course, that would just add time.

The act says that appeals against the decision can go to ministerial level. Have any appeals gone that far?

At the end of the day, the right of appeal is to ministers, and the legislation allows ministers—this happens in the planning process, too—to delegate the decision-making process to a reporter. Universally, that has been the Government’s practice since the act was implemented.

Given the subjective element that a reporter would make in an assessment, it is quite hard to see why and how we would work out which cases should go personally to the minister for a decision when that is not the normal role that a minister would play. To draw an analogy with planning, in which the vast majority of cases are delegated to reporters for decisions, the most important national, strategic decisions are often called in by ministers, and it is quite hard to see which—and why—high hedge appeals would fall into that category.

Mr Stewart asked about an appeals process for the applicant to follow if something was deemed not to be a hedge. Mr Cackette was helpful in setting out the complexities of that issue, but does the Government have a view more generally?

As I said, I am quite willing to look at the committee’s recommendations on that. Mr Cackette has spelled out the great complexities that there would be in adopting that approach. Beyond that, again, we would have to look at the costs. At this time, appeals do not cost us anything. If the DPEA were to be involved in huge amounts of extra work, I imagine that we would have to look into the cost of that, too.

The committee appreciates that you will look seriously at any recommendations that we make. You may or may not agree with some of those recommendations. I am looking to be reassured that you will follow the evidence trail and that you will not just respond to our recommendations, but set out the Government’s views on the post-legislative scrutiny. That is important, because we are receiving evidence that all is not necessarily well with the High Hedges (Scotland) Act 2013.

There is a growing view that changes might have to be made to the act. Are you and your team looking at the evidence that has been received? You may have your own ideas on how to change the legislation. Today, we have been trying to tease out the Government’s views as opposed to being told that you will look at the committee’s views once we have made an informed set of recommendations.

11:00  

The Government has been pragmatic in dealing with the legislation. I refer you to one of my initial answers about guidance being changed as recently as May last year. I am not sure whether all those changes were necessarily beneficial or whether they provided some of the folk who thought that the guidance should be changed with what they expected.

During the initial scrutiny of the High Hedges (Scotland) Bill by the Local Government and Regeneration Committee, of which I was a member, we recognised that certain aspects of the legislation would have to be ironed out. Indeed, we recommended at that time that there should be post-legislative scrutiny of the act.

The Government is pragmatic, and we have made changes to the guidance that have been suggested to us. I will look at the committee’s recommendations and, of course, I will do that based on the evidence. If any other changes were required, we might well have to carry out consultation, because a number of the responses came from different sources and the witnesses you have heard from are not necessarily the same folk as those who previously gave evidence.

Mr Wightman hit upon a point when he mentioned the woodland aspects of the legislation. Again, we would probably have to consult some of the wildlife bodies, as well as some of the folk you have taken evidence from.

In taking an overview of your recommendations, if we were to choose to do anything, our approach would be evidence based.

Time is upon us, so I thank the minister, Mr Cackette and Ms Robertson very much for their evidence today.

11:02 Meeting suspended.  

11:06 On resuming—