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Chamber and committees

Local Government and Communities Committee

Meeting date: Wednesday, May 17, 2017

Agenda: High Hedges (Scotland) Act 2013, Disabled Persons’ Parking Places (Scotland) Act 2009


Contents


High Hedges (Scotland) Act 2013

The Convener (Bob Doris)

Welcome to the 15th meeting of the Local Government and Communities Committee in 2017. I remind everyone to turn off their mobile phones. As our meeting papers are provided in digital format, tablets may be used by members during the meeting.

We have a full house today; no apologies have been received.

Agenda item 1 is post-legislative scrutiny of the High Hedges (Scotland) Act 2013. The committee will take evidence from Mark McDonald, who was the member in charge of the High Hedges (Scotland) Bill.

I welcome Mark McDonald and give him the opportunity to make opening remarks before we move to questioning.

It is best to go straight to questioning, convener.

Has the 2013 act delivered what you intended?

Mark McDonald

I will track back to the intention behind the act. In Scotland, neighbour disputes that centred on high hedges had no means of resolution and the bill sought to remedy that situation. It built on examples from south of the border, and I visited a couple of local authorities in north-east England to discuss how the approach had worked in their areas.

What has happened in Scotland broadly mirrors their situation. A number of cases have in effect resolved themselves as a consequence of the 2013 act. People changed their behaviour because they recognised that there was a means by which the neighbour could pursue a high hedge complaint. In the cases in which there has not been that behavioural change and people have made applications, then, generally speaking, if the authority has found in favour of the applicant, it has not been required to take action. The notices have tended to be complied with. That was borne out, I think, by the evidence that you took last week from local authority officers. How timely compliance has been is something that might come out in further questioning.

There will, of course, be people who say that they do not feel that they have achieved resolution as a result of the 2013 act. They fall broadly into two camps: those who feel that the local authority’s approach to and interpretation of the act has not been in the spirit of the act, and those who, with the best will in the world, the act was never going to be about. Not every single case was going to be determined in favour of the person applying for a high hedge notice. The purpose of the act is to ensure that there is a means by which a dispute can be resolved; that does not mean that it will always be resolved in one direction. Some people will undoubtedly feel that the act has not worked effectively for them, because it has not given them the result that they wanted. That feeling does not always mean that the act has not been effective.

The Convener

That is helpful. Last week, the councils asserted that, where they have applied the legislation, it has been successful. Local authorities are good at saying that they do things well, but that is not necessarily the reality of the situation. As the member who was initially in charge of the bill before it became law, have you had time to assess to what extent constituents who have referred cases to local authorities agree with the local authorities? Is there any data that quantifies that?

Mark McDonald

I freely admit that at the point at which the bill was passed it became the responsibility of the Government to introduce relevant guidance and to monitor how the act was implemented. I have not been in a position to keep up that level of scrutiny.

As a constituency member, I have not had individuals coming to me who have found it difficult to gain resolution for their problems, but it may be that there are no people in my constituency who have those particular issues.

As the member who introduced the bill, I have had one or two emails from individuals in other parts of Scotland. Where possible, I have directed them to either their local member or their local authority, with whom they can best pursue their issues. I do not have to hand the kind of data the convener asked about; it might be something for the committee to pick up next week when the minister will be in front of you.

Absolutely—that is our intention. We will move on to some further questions now.

Andy Wightman (Lothian) (Green)

I have read some of the debate that happened when the bill was introduced, and there was quite a bit of discussion about what kinds of vegetation the bill was intended to cover. Can you confirm that the intention of the bill was to deal with the problem of high hedges?

Yes. That was the point. I am sure that Mr Wightman will have read the 2013 act, which sets out what is meant by a high hedge.

Was it intended to cover trees, forests and shelter belts?

Mark McDonald

No. I will read section 1 of the 2013 act, which sets out what it was designed to deal with:

“This Act applies in relation to a hedge (referred to in this Act as a “high hedge”) which—

(a) is formed wholly or mainly by a row of 2 or more trees or shrubs,

(b) rises to a height of more than 2 metres above ground level, and

(c) forms a barrier to light.”

If something meets those three definitions it would fall within the realm of the act.

Andy Wightman

That brings me to one of the central problems that has come up for people trying to use the 2013 act. Section 1 defines a high hedge, but for a hedge to be high it needs to be a hedge in the first place. There seems to be some confusion as to whether paragraphs (a), (b) and (c) of section 1 are defining a high hedge—that is, a subset of hedges—or whether they are also defining a hedge. Do you accept that for it to be a high hedge, it needs to be a hedge in the first place?

Mark McDonald

The 2013 act is designed to recognise that certain vegetation beyond a certain height—2m is what is specified in the act—could have an effect that is essentially the same as the effect of what might be defined as a hedge in a dictionary. We deliberately stepped back from applying a dictionary definition of a hedge because that could have excluded some of the cases that we had seen that were entirely appropriate to catch under the bill as we were drafting it.

In excluding those, you were presumably excluding vegetation that was not a hedge.

I am not entirely sure that I am following you.

You said that you did not want to define a hedge.

Mark McDonald

We looked at the cases that existed across Scotland, and we decided on the most effective way to draft legislation that would give the best chance of resolving those disputes. The definition that is in the act is what I felt at the time was the most appropriate means of enabling resolution.

You may have seen the evidence from Aberdeen City Council that makes my point. The council has denied applications for a high hedge notice on the basis that the vegetation was not a hedge.

Mark McDonald

That is a question about intention versus effect, I think. The act is looking at the effect, rather than the intention. When an individual plants leylandiis, for example, in their back garden, it may not be their intention to give effect to a hedge or a light barrier for their neighbour, but allowing the leylandiis to grow to a certain height and, therefore, a certain density gives that effect.

It is about the effect, rather than the intention at the point at which planting takes place. That is why the 2013 act makes it clear that a high hedge is, for example,

“formed wholly or mainly by a row of 2 or more trees or shrubs”.

An individual tree could cause difficulties for someone, but we recognised that that would not fall within the realms of the definition of a high hedge.

Are you suggesting that when Aberdeen City Council rejects applications for things that meet those criteria but in its view are not hedges, it is wrong to do that?

Councils should have due regard to how a high hedge is defined in the 2013 act. That would have been my expectation when the bill was passed.

Andy Wightman

The problem seems to be that the 2013 act contains solely a definition of a high hedge, not a definition of a hedge. That matters, because arboriculturists will say that there is a distinct difference between a hedge and a shelter belt or a row of trees. Do you recognise that there might be some merit in defining a hedge before we define a high hedge?

Mark McDonald

I am trying to work out whether I am disappointed or pleased that Mr Wightman was not here when we discussed the bill in its initial stages. I take on board the point that he makes, and it is certainly something that could be considered. Of course, attempting to do what Mr Wightman suggests may kick open a rather large can of worms, in terms of the cases that may or may not be included or excluded as a consequence of what he suggests. However, it may be something that the Government would want to consider and I am sure that the minister would be interested in discussing it next week.

Andy Wightman

Do you agree with Aberdeen City Council, which says in its evidence that it declines to deal with applications for things that have not been defined in the first instance as a hedge? Is it inappropriate to do that, or is it within the bounds of flexibility that you intended?

Mark McDonald

It is difficult for me to give you a definitive response to that, because I am not looking at each individual case. I would not want to put a blanket yes or no answer over that situation, but I would hope that local authorities are not seeking to exclude applications on the basis of their own determinations, rather than the determinations that are set out for them in the 2013 act.

The Convener

With regard to what the bill was intended to do, does it actually matter whether something is a hedge or not? Is the issue not whether something meets the conditions that you read out at the start of this evidence session? It would need a botanist or whoever to determine what kind of plant life or shrubbery something is, but would you not agree that that is kind of irrelevant and that that should be clear in whatever changes are made to the 2013 act or the guidance? I am minded to think that having a clearer definition of a hedge could be restrictive rather than inclusive. We have to be careful that there is not an unintended consequence. Would you like to make sure that as long as something impacts on someone’s quality of life and, irrespective of what kind of plant life it is, meets the conditions that were set out in the bill—which was passed with you as the member in charge—local authorities should use enforcement powers?

Mark McDonald

The bill was written in such a way as to provide a definition of what constitutes a high hedge, but its purpose was not to define a hedge in law but to create a means by which neighbour disputes that related to high hedges could be resolved. We set out the definition in section 1, and that is the definition that should be followed.

The Convener

Should local authorities be inclusive and open minded in how they interpret what is or is not a high hedge, or should they be restrictive? Some evidence that we have had appears to show that local authorities are being highly restrictive, rather than inclusive. If there is an area of doubt, local authorities apply restrictive practices rather than deal with a neighbourhood dispute in an open-minded way. Where do you sit in relation to that?

10:15  

Mark McDonald

If there is a row of two or more trees or shrubs, it rises to a height of more than 2m above ground level and it forms a barrier to light, according to the law it constitutes a high hedge. That is what the 2013 act says.

Irrespective of whether it is a hedge.

Well, local authorities must then make a determination as to the effect of the vegetation in order to determine whether a high hedge notice should be applied.

Other members want to pursue the issue further.

Elaine Smith (Central Scotland) (Lab)

Thank you for joining us as we try to tease out some of these matters.

Part of the problem—I just heard Andy Wightman say this—is the fact that the act says that

“This Act applies in relation to a hedge”,

which has led to local authorities saying that they do not know whether something is a hedge, so they cannot deem it to be a high hedge.

If I recall correctly, I think that some amendments were lodged to the High Hedges (Scotland) Bill that sought to define a hedge. Will you take us through your understanding of the phrase,

“This Act applies in relation to a hedge”?

How would one define “a hedge”?

Mark McDonald

That is part of the difficulty that we have encountered, although section 1 says in brackets, after the phrase that you have quoted,

“(referred to in this Act as a ‘high hedge’)”,

so we were speaking specifically about high hedges.

We did not want to have a definition that referred to individual species, because that would have created loopholes that people could have exploited. For example, we discussed the possibility that if the definition referred specifically to leylandiis, a case in which leylandiis had another species planted in between them might be excluded from consideration, even though such a hedge could have the same effect as one made up entirely of leylandiis. As I recall, at stage 3 of the bill’s consideration, we accepted an amendment from Anne McTaggart that removed from the definition the reference to evergreen trees or shrubs so that the bill would cover deciduous trees or shrubs, because we recognised that they could also form a barrier to light. That was part of our consideration. We tried not to be overly prescriptive on the basis that we wanted to ensure that the widest number of cases could be considered under the legislation.

However, it might be the case that, as a consequence of that, local authorities have chosen to use the broader flexibility that the act provides in the opposite direction, to enable them to rule things out. I freely admit that that might have been an unintended consequence.

Elaine Smith

We heard from people whose light was being blocked out by a row of leylandiis—I think it was leylandiis—that was extremely high and which had been planted with the intention of it forming a hedge. Even though they had it in writing from the person who had planted the row of leylandiis that it was planted as a hedge, the local authority still did not deem it to be a high hedge. The committee will have to explore whether that relates back to the problem of whether the authority deemed it to be a hedge in the first place.

I know that some of my colleagues have questions on the same issue.

Mr Simpson wants to ask about that, as well as pursuing his own line of questioning.

Graham Simpson (Central Scotland) (Con)

I will describe a situation and ask whether you think that it is covered by the act. I live in East Kilbride, where I used to be a councillor. Large parts of the area where I live were planted with trees and shrubs—but not hedges—by the original developers. Those trees and shrubs have grown up to form barriers of the kind that you have described, which back on to people’s gardens. The local council has a policy of not cutting down healthy trees, but a number of households are badly affected by loss of light. Is that situation covered by the act?

Mark McDonald

I face a difficulty, in that I do not want to be seen to be attempting to adjudicate on individual cases.

Mr Simpson referred to the policy of not cutting down healthy trees. I am trying to find a provision in the legislation; if I remember correctly, the legislation merely asks authorities to consider issues such as historical or cultural significance and tree preservation orders. In referring to action that could or should be taken, it does not stipulate whether the tree will be healthy or otherwise.

I would hesitate to adjudicate on the particular case, because I am not familiar with it and it would not be my position to do so.

Graham Simpson

I was describing a general situation in which things have been planted, have grown up and have formed what any sensible person would describe as a barrier, but they are clearly not hedges. We have heard evidence in which—[Interruption.] I am sorry, convener—I am being distracted.

I apologise. I was asking a colleague about individual cases.

The Convener

I apologise to Mr Simpson. I was trying to let the conversation with the witness go on for as long as possible without asking members to stop talking in the background. All members should note that they should not talk in that way, out of courtesy to witnesses and other members.

Graham Simpson

Thank you, convener.

We have things that have been planted and have grown up. They were not hedges to start with, but they have formed a barrier to light. Was your act intended to deal with that situation?

Mark McDonald

The question is whether there is a right for the situation to be considered under the act versus whether there is a right to a decision. The decision would ultimately come down to the adjudication of the individual local authority officer. As I have said, if a case meets the criteria as set out in the legislation, there is a duty to consider it. That does not mean that there is a duty to find in favour; it means only that the case should be considered if it meets the criteria.

Are councils falling back on the word “hedge”?

Mark McDonald

I think so. There is good reason for saying that defining a hedge in the legislation could have proven to be difficult, particularly if one were to use only the “Oxford English Dictionary” definition, for example. However, if committee members are minded that they want to see that happen—or that they want to have a go—they can think about that.

So if we called the legislation something else, such as the high foliage act, councils could not say, “Well, it is not a hedge.”

Potentially.

We should not continue this conversation without bringing in Mr Wightman to discuss the definition—which we are not going to do just now. Do you want to follow up on any of that, Mr Simpson?

That is fine.

Alexander Stewart (Mid Scotland and Fife) (Con)

Good morning, minister. When we took evidence, we heard about wildlife and we talked about green space. Was the potential impact on wildlife and green space considered when you introduced the bill and defined what it would affect?

Mark McDonald

We had discussions with a number of organisations that offered advice on what the impact might be on, for example, nesting areas and other habitats. That would have to be a consideration in any determination. For example, I am aware of a case in which a notice has been issued but can be given effect to only outside the nesting season.

When many housing developments are built, shrubbery creates green space that later becomes a massive forest or has serious implications for individuals who live in its vicinity.

Mark McDonald

There are two—and probably more—ways in which problems arise. One is from people planting things such as leylandii trees because they know that leylandii will grow quickly and will block their neighbours. People do that either in what they consider to be an attempt to gain privacy or to give effect to or continue a dispute with those neighbours.

In other cases, people have lost, or do not have, the ability to maintain their vegetation properly, and as a consequence it has got out of hand. The act can take effect in a number of ways, and the situation that you describe is one such circumstance.

Alexander Stewart

When we took more evidence, the appeals process became part of the discussion, because of what individuals who had to cope with the situation were finding. Is the appeals process robust enough and does it achieve what you wanted from the act? How it is managed has been open to interpretation, and councils have used that to say, “It’s not a hedge.” Individuals have found that the appeals process does not progress as they expect it to and that councils seem to have the upper hand.

Mark McDonald

I have not had people coming to me about appeals, so I am not entirely clear about how effective or otherwise the process has been for individuals. It is undoubtedly in the nature of any legislation, and particularly any legislation that deals with dispute resolution, that there will be aggrieved parties throughout the country who have attempted to use the legislation to resolve a dispute but have not been able to do so. People may feel that the appeals process has not worked in the way that it was intended to in some circumstances, and the committee would need to come to a judgment on that.

The Convener

There is a question about the fees base to mop up. Has the application of fees been implemented as expected? What about a means-tested approach to fees? Fees vary across the country and could be prohibitive. Would a standard fee across all local authority areas make the process more accessible? If people wish to appeal, that has a cost, which varies across the country. Is there a better way of doing it?

Mark McDonald

I remember that there was a degree of discussion at the Finance Committee about fees, when Mr Gibson was in the chair. I am reliving my past somewhat today. The evidence that we took suggested that the fees system south of the border varied quite substantially. I ensured that local authorities had the opportunity to set their fees because I did not believe that a simple centralised fees system was the right way to go. I chose not to put a cap in, because the evidence from Wales was that, if fees are capped, everybody goes to the cap and charges the maximum amount.

Based on my experience of the houses in multiple occupation licensing approach, I built in a mechanism whereby the fee could be charged only at a rate that would cover the administrative costs of dealing with the application. Essentially, a council cannot arbitrarily set a fee; it has to demonstrate that the fee relates to the administrative costs. I know that some local authorities have suggested that they are undercharging on that basis and that some people suggest that local authorities are overcharging on that basis.

Another thing that I set out was that, if people were chapping on councillors’ doors and saying that they could not access the system because prohibitive and unfair fees were being charged, I would expect councillors to have due regard to that when making decisions at committee about the fees and how they should be structured. That is why I went in the direction that was taken, rather than setting a national fee to be charged in all parts of Scotland.

Andy Wightman

You mentioned that if a hedge meets the definition in the act the council has a duty to consider it. However, the act allows people to make an application with an accompanying fee, and in some instances the application has been made and the fee has been paid but the local authority has come back and said, “This doesn’t qualify under the act.” In those circumstances, it seems unfair that people should have to pay the fee in the first place. Is that your understanding of how the fees structure works? That is certainly one of the complaints that we have heard.

10:30  

Mark McDonald

Under section 4(4),

“A fee paid to an authority may be refunded by it in such circumstances and to such extent as it may determine.”

I would be surprised if, in the circumstances that you describe, the fee was not refunded. If an application has been dismissed before any assessment has been undertaken, the fee should come back. However, the fee is there to enable a determination to be made and there will not necessarily be a positive outcome for the individual who makes the application.

Andy Wightman

I understand that a certain amount of work has to be done to determine whether an application is legitimate. However, one or two aggrieved parties have suggested that, when applications are knocked back quickly on the basis that the subject of the application is not a hedge—rather than on the basis of a full determination, which may take some time—it is a bit unfair that people should pay the full fee.

The act makes it clear that there should be preliminary investigations. The question is whether there should be some minimum fee for ensuring that an application is valid in the first instance, with people then paying the full fee for the determination.

Mark McDonald

That is a potentially sensible suggestion, although the position would depend on how that was applied at local level. If the committee’s view was that fees should continue to be set at local level, it would be for local authorities to determine what the initial fee was. However, that is not an unreasonable suggestion.

Kenneth Gibson

A number of applicants have expressed concern about having to pay the fee even if the finding is against the hedge grower. If the finding is against the hedge grower, should they pay the fee? If they had cut the hedge in the first place, someone else would not have had to pay several hundred pounds to take the case forward. That seems to coincide with the polluter-pays principle.

Mark McDonald

That issue was discussed when the bill was considered; I think that Gavin Brown on the Finance Committee and then Margaret Mitchell on the Local Government and Regeneration Committee pursued it. My thinking was about the legislation’s aim, which is to help to resolve neighbourhood disputes. If an application was made and an order was granted, and the owner of the hedge complied but was then told, “Thanks for complying with that order, but you now have to pay your neighbour £500”—or whatever the sum is—that might not be the best means to ensure that neighbourhood disputes are completely resolved.

If that individual said that they were not going to pay, the local authority might have to expend disproportionate sums of money to recoup a few hundred pounds. There was a question as to whether that approach would mean that local authorities had to chase relatively small sums of money, although I take it on board entirely that the sums are not small for the people who have paid them. There was also a question about whether that approach would be a means to resolve the dispute that was under way. I have set out my determination.

I think that Northern Ireland has a fee repayment approach on the lines of the system that Mr Gibson suggests. I do not know whether there have been any difficulties with that since the law came into effect there, but the committee might want to look at that further.

Kenneth Gibson

The owner of the hedge would not pay the neighbour—the owner would pay the council and the council would refund the neighbour. That would be the mechanism. A lot of people feel quite hard done by because, to get rid of hedges that block light, they have to pay several hundred pounds, and not all of them can afford that. Certainly, the constituents who come to me about the issue are almost always elderly retired people, and they are not all particularly well heeled. We have evidence that one or two people have been put off the application process by the fee.

I accept that there has to be a fee so that councils are not out of pocket and so that they do not receive random applications that would choke the system. However, if a decision has gone against someone, it is up to them to make restitution—I do not see why the person who has been in the right throughout the process should be out of pocket because of it. The situation is stressful enough. If the situation had been resolved without action through an application, the person who ultimately had to cut down their hedge would not have to be out of pocket in that way. In the light of experience of the act, I think that the arrangements should be changed.

Mark McDonald

Section 4(2) states:

“An authority may fix different fees for different applications or types of application.”

Nothing in the act prevents or precludes local authorities from introducing a scheme for the type of individuals to whom Mr Gibson refers—people on low incomes or people who are retired and do not have the means to pay a lump sum up front—that allows them either to pay the fee in instalments over a year or to pay a reduced fee that is based on their income. Authorities have the ability to do that; nothing in the legislation prohibits or excludes them from doing it.

Kenneth Gibson

I probably conflated two issues. One is the cost in itself—I think that South Ayrshire Council is the only authority that has means testing and a sliding scale of application costs—and the other is natural justice, which concerns the question of why someone should be out of pocket when the decision has gone against the person they had to make the application against. I have no doubt that the situation is stressful for both parties, but there is an issue of natural justice.

Mark McDonald

Sure—I take that point on board. In the previous parliamentary session, we rehearsed that argument at stages 1, 2 and 3. I take on board the point that the money would be paid to the council, which would then reimburse the applicant’s fee, but people would understand where the money was going in the grand scheme of things, and that might have the side-effect of creating further animosity between neighbours.

Can I ask a final question, convener?

Is it on the same issue?

No.

We will come back to it, then.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

In previous meetings we have heard from people from across the country who have got in touch with their local authority and tried to go through the high hedge process, but before the notice has been served, their neighbour or whoever has cut down every second tree. Do you have a view on how we can safeguard against people trying to get round the legislation in that way?

Mark McDonald

I am not sure, to be honest. It would disappoint me if that was happening across the country. In such circumstances, there would be the potential to look at the historical position on what was there, and to decide whether there is the likelihood that the situation would continue to be exacerbated by the individuals.

Jenny Gilruth

From what we have heard, that practice is pretty commonplace. When we heard from local authorities, they washed their hands of the matter and said that if every second tree has been cut down, it is no longer a hedge. There is a lack of responsibility being taken. The bill feels a bit toothless in terms of its implementation—local authorities say that they cannot do anything about it. I do not know whether they are waiting for action from the Government, but there is a disconnect between the intention of the legislation and folk being able deliberately to get round it.

Mark McDonald

That will, unfortunately, always happen with legislation when individuals are minded to try to circumvent the law. The question is whether the committee feels that a change to the guidance or the wider definition of a hedge would help. The difficulty is that if we were to widen the definition, we might start to get into difficulties in other areas. Unfortunately, I am not sure that we can always protect against individuals who wish to be vindictive in their approach.

I have one more question about the act. How was it intended that it would deal with new houses that are built where a high hedge already exists? To be fair to the hedge, it was there first.

Mark McDonald

Yes—I am always keen to be fair to the hedge. If I remember rightly, the purpose of the legislation was not to ensure that when someone moves into a house and there is a hedge next door they can say, “Right—that’s it; I’m applying for a high hedge notice.” The person has to demonstrate that they have to some extent tried to resolve the issue in an amicable fashion with their neighbour. The first step to be taken by somebody who moved into a property that was built next to a hedge that they decide is causing them a bit of a problem should be to chap on their neighbour’s door and ask whether there is any chance that the neighbour could trim the hedge and help to create a better situation. If there was no amicable resolution, that is the point at which an application would be made. It would not be the case that someone would move in and say, “I’m going to get rid of that hedge by getting a high hedge notice.” They would have to demonstrate that they had first tried to come to an amicable agreement with the individual who owned the hedge.

The Convener

I will mop up on Jenny Gilruth’s questioning. I seek clarification on the initial point about the situation in which a person goes through the process of trying to get a high hedge notice because of the detriment that they are suffering, under the terms of the act, and somewhere down the line before a high hedge notice is issued or enforcement action is considered, the hedge is pruned or trimmed in the way that Jenny Gilruth outlined. The point has been made to the committee that the enforcement should be against the original hedge when the application was made: the determination should be based on what the hedge looked like at the point of application, and the determination that the hedge should be removed, cut completely or trimmed should be enforced. There should not be retrospective mitigation action taken by a person trying to protect their hedge just—in a way—to game the system. Could legislation or guidance be changed so that local authorities have to make a ruling based on the situation at the point when the application went in from the plaintiff? That would help a lot of people from whom we have heard.

Mark McDonald

The difficulty in that situation is that probably the only evidence would be photographs and it would not possible for the local authority to make a firm determination on, for example, the height of the hedge. In some cases it will be very obvious that the hedge is taller than 2m, but local authorities run the risk of opening themselves up to challenge if they make their determination based on anything other than full consideration of the application, so I could see difficulties for them in those circumstances.

The Convener

Okay. You see difficulties, but in terms of natural justice would it be a good and positive thing to make the guidance and the legislation point in that direction? I accept that there would be borderline cases, but if the first thing that the local authority did once the application fee had been paid was a basic assessment of the situation by taking photographs, video footage or whatever and that evidence was banked for processing at a later date, it could become fairly obvious—

Mark McDonald

I am sorry; I was not responding on the basis that an initial assessment had been undertaken. If a local authority officer has examined the hedge, and in the intervening period before making a determination some action is taken, the local authority should still consider issuing a notice, because the notice may require that more action be taken than has been taken. That would be for the local authority to determine.

The Convener

I have a final question on the issue. I assume that the applicant for a high hedge notice could be dissatisfied and seek to appeal the determination, and could be told that it is a different structure now and they have to apply a second time for a high hedge notice, because they are now looking at a different beast. Is there anything in the regulations that precludes local authorities from charging fees twice in such circumstances?

Mark McDonald

I do not think that there is a stipulation that a person can apply for a notice only once and that is it. In general terms, the person could apply again in the future if, for example, the situation developed beyond that which had originally been assessed by the local authority. However, I am not sure that there is anything that would automatically prevent the circumstances that you describe from happening.

10:45  

Okay. We will move on.

I will follow on from something that Jenny Gilruth was exploring. Can you talk a bit more about what was meant originally by the phrase “reasonable enjoyment” in the 2013 act, and what it might include?

Mark McDonald

That is about whether the barrier to light that is created affects an individual’s ability to enjoy their property—their ability to use their garden or to receive natural light into certain rooms in their house, for example. Those are the kind of considerations that we were thinking about in relation to “reasonable enjoyment”. I met people during the passage of the bill who had to have a light on in one room of their house all through the day because they could not get any natural light into it.

Should such situations be apparent to an officer who has to make a judgment?

I would expect such situations to be fairly obvious, although they will obviously apply to different degrees.

Elaine Smith

Okay. You spoke, in answer to the convener’s first question, about maybe coming back to some practicalities. What is your view of the suggestion that a time limit should be set for a council’s decision on the application of a high hedge notice? Obviously, we should bear in mind the issue that was raised earlier about wildlife.

Mark McDonald

Some timescales are laid out in the legislation, but we did not set one to cover the time between an individual applying to the local authority for a notice and the authority making a determination. I am aware that people have mentioned the length of time that it takes to get a decision from the local authority. There might be some merit in looking at that.

Another issue that has come up in our exploration of the matter is whether fixed penalty notices should be issued for failure to comply with high hedge notices. Would that be worth considering?

Mark McDonald

Our decision was that when a person does not comply with a high hedge notice, the local authority is empowered to do the work and then to recover its costs—which would probably be much more than the cost to the individual of a fixed penalty notice. I am not sure that adding a fixed penalty notice to the cost of the work that a local authority undertakes would provide more of a deterrent.

Elaine Smith

I will explore that slightly further. Part of the problem with what you suggest is that the local authority might hesitate and be reluctant to do the works itself because that would mean taking steps to enter someone’s property, which might have repercussions. A fixed penalty notice could focus the mind of the owner of a high hedge and encourage them to do the work themselves.

Mark McDonald

A fixed penalty notice could do that, but it could also elongate the process of the person who made the application getting the resolution that they seek. Obviously, a fixed penalty notice would have a date by which the individual must pay: if they chose not to pay it, the local authority would then have to chase them for it. There could be a more protracted process before the local authority eventually undertook the work. My instinct was that the best way to ensure compliance was to say that if people do not comply with notices, the authority will do the work and the person will pay the local authority for that, which might cost more than it would have cost to do it themselves. My view has not shifted.

Elaine Smith

Should the process be a reasonably simple one in which the local authority—having done all the work, deemed a hedge to be a high hedge and issued a notice—can take down the hedge to a reasonable level and then give the bill to the owner?

Mark McDonald

Yes. Local authorities obviously have a number of different ways for getting payment from individuals for works that the council undertakes. People should be given reasonable time to comply with an order, but if they do not comply with it, the local authority has the power to intervene and to recoup its costs.

Does guidance to authorities need to be more robust?

Do you mean overall?

Should the guidance be more robust in relation to issues that we have been discussing—the original intention of the act, how it is implemented and how local authorities interpret parts of it?

There is a question about whether authorities are complying with the spirit of the legislation. It might be possible to consider whether the guidance could be tightened up to make that more likely.

Kenneth Gibson

I will ask about flexibility. At the start, you read out from the act the definition of a high hedge as

“formed wholly or mainly by a row of 2 or more trees or shrubs”,

but the interpretation of the local authority representatives from whom we heard last week seemed to be very strict and to err on the side of caution. All the members of the public from whom we took evidence wanted the act to be strengthened in order to eliminate the avoidance that Jenny Gilruth touched on, but the councils seem to take the opposite approach, which is to define a hedge even more narrowly, which would not impress many members of the public who raised the issue. Are the local authorities working within the spirit of the legislation or are they being a bit too cautious in how they interpret it?

Mark McDonald

I suspect that, as with most matters that we consider across all the local authorities in Scotland, the approaches will be like Heinz’s “57 Varieties”. There will undoubtedly be some who take a positive approach to the act and others who take an approach that is less in keeping with the spirit of the legislation. We need to consider whether the best way to achieve parity of approach is through the guidance that comes with the legislation or whether that can be driven at local level. Ultimately, all the officers from local authorities who appear before you are answerable to the committees of their councils for the decisions that they take.

Kenneth Gibson

The legislation has been in place for some years and we have had a lot of evidence about how it is or—allegedly—is not working. How can it be improved directly or through guidance? Given what you have heard, if you could go back in time and redo it, are there any glitches that you would address or are you more or less content with the act?

Gosh. I have to be careful, of course, because the act is now the responsibility of the Minister for Local Government and Housing.

Ach, go on. Do not sell out.

The act is not under your portfolio, Mr McDonald. Freedom.

Mark McDonald

It is not. I was distraught to learn when I took on my portfolio that childcare and early years does not cover high hedges. It would certainly make for some interesting conversations with Kevin Stewart in the car on the way back up to Aberdeen.

The majority of cases have either resolved themselves or been resolved and, as was the case south of the border, we are left with the more intractable cases, in which we are dealing with long-standing disputes and individuals who, as Jenny Gilruth highlighted, are exploiting opportunities to circumvent the legislation. It is not possible to build legislation that will enable everybody who applies for a high hedge notice to achieve an outcome that satisfies them, and that was never the intention. I recognised at the outset that it should be about providing determinations on neighbourhood disputes and not about coming down 100 per cent on one particular side of such disputes.

The question then is whether the way in which the legislation has been interpreted locally enables people to have confidence in the decisions that are made. People can be unhappy with the decision that is made but have confidence that it has been made using the legislation appropriately. There question on which the committee will have to reflect is whether that is happening in all local authority areas. If it is happening in some places but not in others, the committee will have to reflect on the differences. Is it about the approaches of individual officers, and is guidance the best way to get them to take a different approach? Is it about councils, when they make their determinations on fees and the process, taking a more robust approach to ensure that what they do is in the spirit of the act? I have kind of not answered your question, Mr Gibson, as you may have noticed.

You have not—clearly, you are going to duck and dive.

Being wise after the event, I can say that those are the questions to which I might have given consideration when putting the bill together, had I known about them at the time.

Okay. Thank you.

The Convener

Mr McDonald, you have perhaps answered the final question. Is there anything else that you would like to put on the record as we continue with our post-legislative scrutiny of the act of which you were the member in charge?

I will put on record only my gratitude to the committee for allowing me to have this jaunt down memory lane, convener.

It does not end there. [Laughter.]

I know that.

We are keen to hear further from you on whatever the committee decides to recommend.

I look forward to it.

We are also keen to hear more about that car journey with Kevin Stewart, the Minister for Local Government and Housing.

I am sure that he will tell you all about it next week.

The Convener

That was my link to next week’s evidence-taking session, when we will have before us the minister who is responsible for ensuring that the act is working as it should. I thank you for your time this morning.

10:56 Meeting suspended.  

11:00 On resuming—