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Agenda item 2 is post-legislative scrutiny of the High Hedges (Scotland) Act 2013. The committee will take evidence from local authorities, and I welcome to the meeting Kevin Wright, environmental planner, Aberdeen City Council; Alastair Hamilton, service manager, Fife Council; and Paul Kettles, planning enforcement officer (north), Perth and Kinross Council. I invite each member of the panel, starting with Kevin Wright, to make some short opening remarks.
Overall, we have found the legislation to be of much benefit to the city. We have not had the greatest number of formal applications, but what we have seen is a huge number of inquiries with resolution as the end result because the legislation has been in place and therefore an application has not been required. Certainly from that perspective it has been incredibly beneficial.
However, my main concern about this review of the high hedges legislation relates to the numerous applications that we have experienced in Aberdeen for what are commonly coming to be regarded as non-hedges—things that are, in our experience, more trees than hedges—and I want to take this opportunity to flag my concern about this potential review expanding the remit of the 2013 act.
I suppose that the experience in Fife is similar to that set out by my colleague. There was an initial flurry of applications when the legislation was introduced, but that was perhaps representative of people seeing the legislation as a mechanism for advancing or pursuing historical cases or issues that had been in existence for a while. That led initially to a larger number of applications. For some of the people concerned, it probably heightened their expectations of what could be addressed, and they were then, I suppose, distilled through what actually could be applied under the legislation and through the definition of what is or is not a hedge. We will probably discuss later on where that sits in relation to trees, legal definitions and so on.
In Fife, we have had 23 formal applications over the time that the legislation has been in place. That might seem relatively low, and I point out that eight of those applications have gone through the whole process to reach some form of resolution or rejection. As I have said in my submission, that level of demand or number might not seem large, but for the people who have had their issue resolved, this has undoubtedly been important and a success for them.
I could simply reiterate the comments that my colleagues have made, given that we have experienced similar scenarios. In 2014, when the act came into force, Perth and Kinross Council received a flurry of applications; to date, we have received a total of 21, of which seven—or a third—were deemed not to be about a hedge, with remaining 14 subject to high hedge notices. Of those 14, seven were subject to an appeals process through the Scottish Government planning and environmental appeals division, and ultimately most of those that were appealed were varied.
As a consequence of the act, 12 of the hedges referred to in those 21 applications have been cut, and people have told us how grateful they are that the legislation has come in. Some of those applicants had been waiting for several years; indeed, correspondence that I received from lawyers on some of the situations actually dates back 15 years, and the people concerned are very grateful for the council taking action under the legislation.
We have also had people submitting applications on things that we would not consider to be hedges; woodlands, for example, have given rise to concerns from a lot of people. However, this is not a high trees but a high hedges act. I know that there has been a lot of discussion about the legal definition, and I trust that we might get some clarity out of this process.
We have had a previous evidence-taking session on this matter, and I am sure that colleagues on the committee will want to pick up on many of the points that were raised in it. However, Mr Kettles’s comments move us nicely on to the issue that Andy Wightman wishes to explore.
This act says that it is:
“An Act of the Scottish Parliament to make provision about hedges which interfere with the reasonable enjoyment of residential properties.”
When I first looked at that, I was surprised not to find a definition of a hedge. Some of the concern that we have heard from the occupiers of properties who wish to use this legislation appears to hinge on the question, “When is a hedge not a hedge?” The definition in the act itself relates to a high hedge, which demands that the thing in question be a hedge in the first place. As the issue has been well articulated in the opening paragraphs of the Aberdeen City Council submission, I wonder whether you can give us your thoughts on the extent to which this is a central problem with the legislation and/or with people’s understanding of what the legislation is designed to do.
This is probably a two-part issue. We are quite clear in what we consider to be a hedge as opposed to what would be a tree. The big problem here is that people have put a lot of hope in this legislation resolving issues, and we have to tell some of them that they cannot use it because we deem the vegetation at the heart of the issue not to be a hedge. As you will see in my submission, we have a number of tests for distilling that.
Just to put into context how big an issue this is with the legislation, I note that we have only just about resolved two cases that have been going on for the best part of two years, with massive amounts of correspondence back and forth. In the initial stage—which spanned about a year—we tried to explain our position to the two correspondents. Although we were always saying no, we were getting dozens of questions back, which we were happy to answer. However, it got to the stage that we were spending so much time on the issue that we had to direct the applicants to our complaints procedures, because we could not get them to understand our position—or perhaps I should say we could not get them to take it on board. After all, with such emotive issues, there is a kind of refusal to accept something. If you are not involved in the situation, you can quite easily say whether something is or is not a hedge. Perhaps the act’s biggest failure is that there is no clarification in that respect.
Do you wish to come back on that, Mr Wightman, or do you want to hear from other panel members first?
It would be useful to hear from others.
It is a similar experience in Fife. In our customer guidance, we have included pictures and general information to manage people’s expectations about what the legislation can deliver and achieve and about what is or is not a hedge under the definition.
I agree with Kevin Wright that, because there is no other route to achieving a definitive legal conclusion on what is or is not a hedge, the matter is to some degree left to the local authority’s subjective judgment. The public—or the complainers—feel that they have to continually enter into that discussion with the local authority in order to gain clarity or to be satisfied that its decision is justified.
I think the inclusion of the phrase
“2 or more trees or shrubs”
in the act has led to a lot of confusion and assertions from members of the public that the local authority is electing to interpret the matter in certain ways. In our submission, we suggest that a way round that is to take out section 1(a) and to leave sections 1(b) and (c), which means that the act applies to a hedge that
“rises to a height of more than 2 metres above ground level and ... forms a barrier to light.”
11:15Many people have approached us in advance of making an application, asking, “Is this a hedge or not?” Quite often, even on the telephone, when we ask them, “What is it?”, they will say that it is three trees in their neighbour’s back garden. From the way in which the act has been drafted, they think that their application will be valid, but, as I have said, this is not a high trees act—it is a high hedges act. Fundamentally, it must first be a hedge, and defining that is difficult. Before I came into planning, I was in horticulture, so I know that when someone says, “Design me a hedge”, it is quite clear what they mean. There is a process that you go through with regard to the species that you use, the planting arrangement and the density. To me, therefore, it is relatively clear what a hedge is and what it is not, but the way in which the act has been narrated gives rise to some confusion.
That is very helpful. We have been sent a copy of a letter from Aberdeen City Council to one of the applicants in Aberdeen, which makes it very clear that, in your view, you cannot consider any application that does not, in the first instance, relate to a hedge. It is fair to say that other local authorities have not been quite as clear and robust in applying that test and have been prepared to admit for consideration vegetation that meets the tests of paragraphs (a), (b) and (c) of section 1(1), but which is not in fact a hedge—that becomes clear only at a later stage.
Mr Wright described tests that Aberdeen City Council applies on what is a hedge, but they are not statutory tests. Given that all this revolves around legal meanings, would it be helpful, as a matter of principle, to introduce a new section to make it clear that the act applies only to hedges, with a hedge being X, Y and Z, before going on to say that nothing other than a hedge can be considered to be a high hedge? Would that help to resolve some of the difficulties?
That is probably exactly what we need. To go back to my colleague’s comment of a minute ago, the fact that a high hedge has in the first place to be a hedge is often overlooked by people who are looking to put in an application: they jump initially to the three tests. Nobody here is saying that a row of trees cannot have the same effect as a hedge; a row of trees can certainly meet those three tests, but it is not a hedge. It would be extremely useful if the act and the guidance were to make it abundantly clear that whether there is a hedge is the first test, and also if further definition were perhaps to be provided in the guidance.
Before I bring in Mr Gibson, I would like clarify something with Mr Kettles, given his horticultural background. We have just heard Mr Wright say that a row of trees is not a hedge. However, when the original bill was being considered, it was rows of trees—rows of leylandii—that had been planted as hedges that were causing problems, because they were so fast growing and so dense that they were cutting out light to people’s gardens and preventing their enjoyment of their gardens. Therefore, when does a row of trees become a hedge?
It is down to the pattern—the arrangement—of planting. I have dealt with typical situations in which leylandii are planted at 600mm or 700mm centres in a row, along a boundary, and there is no dispute. That is a hedge; it forms a solid barrier. However, I have also dealt with Lawson cypress in a garden, which had been planted just to form part of that garden, with planting underneath them. They were forming a barrier to light, but I would say that they were not a hedge because there were clear gaps, and the pattern of planting—the arrangement—did not resemble a hedge in any way. Tree planting does not morph into a hedge just because the crowns coalesce. You have to look at where the stems are and the relationship between them—in other words, the pattern.
If leylandii had been planted as a hedge, and that was confirmed by the owner to a person who moves into the house next door who moved into the house next door—we have heard evidence of such a case—do you agree that even though they formed a row of trees, because they were leylandii and were indeed high, that could constitute a hedge?
Yes—but each case is looked at on its own merits.
The evidence that we have received this morning would disappoint all the witnesses we had at a round-table discussion, because from what I have heard, it appears that all the witnesses want to further neuter this already fairly toothless legislation.
My constituents who have raised concerns about the matter not only balk at having to pay the outrageously high fee, which is not returned to them when there is a finding against the person with the high hedge, but face all the semantics around what is and what is not a hedge.
It is clear that the meaning and spirit of the legislation are to make it clear that if someone’s quality of life is being ruined by leylandii or other shrubs or even trees, blocking out their light and making their life a misery, it should be dealt with. Let us think about the case of an 80-year-old constituent who buys a house in large with her life savings and who has a husband who is suffering from dementia. If, a couple of years later, huge trees suddenly sprout up and block the light, why should that person not get restitution? There is some talk about what constitutes a hedge, but the spirit of the legislation is quite clear on that.
Surely the legislation should not be made more toothless by making it apply only to hedges, as people would understand a hedge, but should include the things that we want to exclude. What are people meant to do about high trees? Are people meant to be able to plant trees wherever they like and ruin someone else’s view? We have taken evidence from people who had trees surrounding their property on all four sides, who were told, “Tough. It’s not a hedge. Go away.” People who are not affected by the issue might think, “So what?”, but for the people who are directly affected by it, it is a quality-of-life issue. The people concerned are often very elderly and they get deeply upset.
Mr Wright talked about people who have corresponded with him umpteen times. That is because they feel that they have been let down by the legislation. I know that you are wincing, but I can honestly say that, across the parties, the intention of the MSPs involved in passing the act was not to have very narrow legislation, but to have legislation that could be interpreted in a commonsense way.
I will make one other point before I let the panel come in. We have had evidence of people deliberately trying to get round the legislation by chopping every second tree of a leylandii hedge or whatever you want to call it, knowing that the remaining trees will sprout sideways and have the same adverse impact on the person who made a complaint. The council has just shrugged its shoulders and said, “Sorry—it’s not a row of two trees”. Well, it might not be a row of two trees above 2m, but it certainly is a row of two trees below 2m. Surely the council should be taking a more flexible and more human approach to the issue by looking at the impact on people’s lives and saying, “As far as we’re concerned, this has been deliberately planted with a view to obscuring someone’s light.” Whether or not the trees are planted in a straight line, in a slight curved or are not specifically a hedge should not really be at issue. Surely the issue should be the impact on the people’s lives that are blighted, Mr Wright.
I will need to bring in all the members of the panel, because Mr Gibson has asked if the intention is to neuter the legislation, but I will start with Mr Wright.
The first point that I would come back with is that there are a number of cases in Aberdeen in which I would love to use the 2013 act. There is a particularly heartbreaking case that I have probably been dealing with for two years now. I very much see the stress of the citizen concerned, given the situation that he is in, with young children, in his first home, and the impact that he is experiencing. However, in his instance, the trees do not constitute a hedge.
As a local authority, we are asked to implement the legislation. If I am asked to justify my decision, I cannot stand up in front of a group of people and say, “The legislation says this, but I thought I’d be a bit flexible about it.” When it comes to whether it is a hedge or trees that were not planted as a hedge, there is not flexibility in the legislation; we do not have the legal opportunity to exercise such flexibility.
We have had a number of very emotive cases in which we would have liked to take action, but we have also had other cases in which we, as a local authority, have had—quite literally at times—to sit on the fence between properties. On one hand, we have somebody who is looking to remove trees from somebody else’s land, but we have to look fairly at the impact—indeed, the legislation requires us to do that—on the owners of the trees as well.
I will turn the scenario round slightly. We have a case that has been going on for some time on Deeside involving a house that has probably been in place for about 200 years. There are many mature trees in the garden—certainly, at the back of it. The garden used to back on to fields, but about four years ago, a brand new property was built what was, quite honestly, a reasonable distance away from mature trees. However, the house was put on the open market. The land was not bought by the owner and built on; it was sold separately. The owner of the property moved in two years ago and decided to seek an application to have the trees removed, which I would say would be incredibly unfair on the owner of those trees. They are trees; they are not a hedge. However, we have somebody who chose to buy a property and move into that situation.
I know that those are only two scenarios, but I just wanted to highlight that there are other parties and other owners involved.
The commonsense approach would deal with that. I have had a similar case. I looked at it and said, “Come on.” Such cases are not what we are talking about: we are talking about people who are planting stuff and deliberately trying to avoid legislation. I raised the example of people chopping down every second tree. Surely the council should say to them that they are clearly trying to avoid the impact of the legislation.
To be frank, I say that Mr Kettles wants to weaken the legislation, so that it applies only to hedges, which is not what was intended. I assure you that when we debated and discussed the original bill some years ago, people wanted to include things beyond what the public walking along the street might recognise as a hedge.
I will bring Mr Kettles in first, because he was named.
As planning enforcement officers, we have to operate within the terms of the Town and Country Planning (Scotland) Act 1997. When we look at situations, enforcement action is discretionary, so there is a degree of subjectivity, but we must nevertheless remain within the terms of that act. In respect of this situation, I think that we are operating within the terms of the high hedges legislation. I think that Perth and Kinross Council has, in every application that it has dealt with, operated within the terms of the legislation because, fundamentally, the subject of the application must be a hedge.
I know that we could debate the matter for a long time, but in the end my colleagues and I look at applications, and we consider that we are operating within the act and within the spirit of the act, because it is not a high trees act. If you want to bring in a high trees act, you should introduce such legislation.
I am wondering why you do not want to extend the act to trees. You seem to want to dilute it. No one has responded about what happens when somebody cuts down every second leylandii in order to get round the legislation.
That is a case of somebody getting around the legislation. Thankfully, we have not had that situation in Aberdeen. If we had received an application and then those works had been undertaken, we would have had to seek legal advice on whether we could still go forward with the application because, ultimately, it is the legislation that is pointing out what a high hedge is.
If somebody removes every second tree, as unfair as that approach is, then, by the definition that we currently have, it is no longer a hedge but a row of trees. If they remove every second tree, the canopies will not coalesce, therefore it is not a hedge. If it is not a hedge, we cannot use the legislation.
11:30One thing that I will say that may help our discussion is that when we are talking about rows of trees, one of the things that we take into consideration—we have all alluded to it—is the space between the trees. Elaine Smith brought up a perfectly good question with regard to leylandii trees. Is a row of leylandii trees a hedge? They can be viewed as being a hedge, but could equally be viewed as individual trees. It would not be like saying that a beech hedge is a row of maintained beech trees.
As we were talking about rows of trees, I was madly flicking through the guidance for a particular sentence. It says:
“For example, well-spaced tree lines are not generally considered as a hedge, even if the trees join to form a canopy.”
Mr Wightman asked whether guidance on the types of subjects that I have raised and tests that we use would be useful. It absolutely would be, because then we would all be working to something that is defined.
Could I make one further point?
Briefly, please, because I want to bring in Mr Hamilton.
Earlier in this meeting, and in some responses to the previous public consultation, we have heard expressed the idea that councils are avoiding using the legislation. It takes me between 10 and 15 hours, over a period, to deal from start to finish with a high hedge application. In a number of cases that we have dealt with—one, in particular—I have racked up more than 60 hours dealing with councillor representations, MSP representations, going through our complaints procedures, and answering to senior staff within my organisation. I would much prefer to be able to use the legislation. The work that is involved in telling somebody that we cannot use the legislation is extensive.
Mr Hamilton, do you wish to neuter the legislation, as Mr Gibson suggested is the case?
No, I do not, and I think that I speak for all my colleagues when I say that that is not our intention and it is not how we apply the legislation. If Parliament wishes to expand and extend the act’s remit, that is within its gift as part of how it considers the legislation further.
Mr Gibson’s passion highlights how emotive the subject can be. Part of the problem is that we who implement the legislation face passion on both sides—passion on the part of the aggrieved party who has to alter their hedge and on the part of the party who is potentially affected by the hedge. The legislation itself has to be robust enough to deal with that, because not only are we addressing potential harm from a hedge, we are also justifying why we have the right to affect a person’s property and what they wish to do with it. That principle is part of the basis of planning legislation. As I said in my submission, the high hedge legislation is not implemented across the board by planning services; in some places, other services deliver it.
I want also to pick up the issue of planting hedges, which Kevin Wright also picked up. You would have to be careful about that in respect of the breadth of what the legislation sought to cover if you started to apply it to already established trees. There are many residential areas in Scotland where there are mature trees—houses are within or next to existing woodland, so such application of the legislation could have a significant consequence for the tree population. Some are protected by tree preservation orders, so you would need to be very careful in seeking to broaden the legislation. No doubt some trees have an impact on people, but the principle of the legislation involves concerns about leylandii and planting of hedges, so if there were to be an attempt to make the legislation more prescriptive or precise, there would need to be very careful consideration in relation to dealing with the planting of hedges and the point at which that becomes a problem.
In my overlong first question, I made a point that might not have been picked up. Do you feel that, if an application is successful, the cost of that application should be borne by the person against whom the case is found? In others words, do you think that, if the applicant’s application is dismissed, he or she should pay the cost but, if it is successful, the person who has breached the law should pay it? At the moment, people who make applications have to pay up to £500 and are wondering why that money should not be restored to them if they are found to be in the right.
Mr Kettles is nodding.
Yes—I agree with that point whole-heartedly. If a local authority serves a high hedge notice on a hedge owner and they have the opportunity to address the issue but do not do so, we should seek to get perhaps half the fee back, or set up some other arrangement whereby the applicant is refunded, either in part or in total.
Mr Wright, do you have an opinion?
I tend to agree. However, it is worth noting where the idea for the fee came from in the first place. In normal circumstances, the council would not offer this service. Following the introduction of the legislation, the fee was used as a way for councils to recoup expenses for the time spent dealing with applications. I do not disagree with Kenneth Gibson’s suggestion; that approach is only fair, given that a person will in the first place have had a good opportunity to address the issue. I would be keen to see any good mechanism that would ensure that the local authority did not end up being out of pocket as a result of dealing with applications.
That is a good point. The legislation was drafted on the basis that the local authority would be the route of last resort. The emphasis was very much on the issue being resolved, where it could be, by mutual agreement and collaboration between both parties, whether through a formal route involving solicitors or just through neighbourly discussions, which would obviously be the most beneficial way to resolve issues. That is implicit in the legislation.
One of the other things to bear in mind is that, although it might perhaps seem unjust that the person who is affected by the hedge pays the fee, there might not be an impetus on the person who has to undertake the mitigation work also to pay a share of the fee. That comes back to the point that Kevin Wright made about making sure that there is clarity about recouping costs from the party who has to undertake the work.
Is it your view that if—as the legislation currently stands—an application was rejected because the subject was not a hedge, the applicant should have to pay the full fee? At the moment, an application that is made and rejected in those circumstances is a very modest piece of administration, but the person must pay the full fee.
If the same principle applies as when a planning application is subsequently refused, they should pay the fee. In terms of where the legislation is coming from and the fee structure that is applied under it, if the authorities assess that there is work involved, they are entitled to place a reasonable fee in respect of the cost of that work.
The guidance talks about
“dealing with it in a timely manner”,
which has caused some difficulty. Many witnesses have felt that that is a bit too subjective and gives some landowners the opportunity to make alterations between the application and action taking place. I would like your views on the phrase “timely manner”, which is in the act and has caused that situation to arise.
I cannot think of any problems that we in Aberdeen with timeliness have had in going through the process. However, the overall process is particularly long. You will probably be aware that it is a very open process in as much as we are, whenever we receive information, required to copy that information, redact it if there are things in it that require redaction, and then pass it on. Within that, there are stipulated timeframes that we have to give people as well. In reality, “a timely manner” is probably approaching three months. I can well imagine that timeframe being deemed to be unacceptable but we would, with best efforts, struggle to get it much below that.
Undertaking such work creates an enforcement process for which it can be difficult to prescribe a precise period for delivery. There are, especially with alterations to hedges and vegetation, wildlife considerations that need to be built in. There are close periods for breeding seasons during which it may not be acceptable to cut or alter a hedge—when there are nesting birds, for example. There are also issues, depending on the scale of the works, about how long that might take to factor in. It is a very area in which it is very difficult to be precise, and none of us who implements the legislation would prolong it unnecessarily. Flexibility needs to be built in to cover the vagaries and unknown issues that can arise.
In Perth and Kinross, within probably eight weeks of receipt of the application we will have made a decision—as in issuing a notice—on an application that we have determined is not subject to an appeal. As has been mentioned, the notice for the compliance period will have to take account of wildlife. I have issued one in the past 10 days, and the compliance period is until September, which takes it right out of the nesting season.
In addition, we go on the premise—as we do with an enforcement notice—that, if the application is subject to an appeal, the reporter will always expect the local authority to act reasonably. That is the test. I would always ask, “Is it reasonable for me to ask this individual to cut a hedge within three weeks?” Some of the hedges that we receive applications about are 75m long; I would say that, in those circumstances, that timeframe would be unreasonable, but we have to perform the test anyway. I looked at our cases online, and we seem to average about the same timeframe as planning applications—six to eight weeks—for issuing decisions.
Which department within your authority carries out site visits to assess whether a hedge is a hedge or not—if that makes sense? When we took evidence previously, we heard that there is a lack of continuity across the country in respect of who does that. Is it somebody from the planning department? Is it somebody with a history of dealing with hedges? I would like to get an overview of who makes the final decision.
We will start with Mr Kettles, who seems to be both.
I work in the planning service, but my background is in horticulture and arboriculture, so I was identified as the appropriate person.
11:45
In Fife Council, high hedges applications are dealt with by planning officers. We also have an in-house arboriculturist whom we can call on for advice.
I work in the planning team, and I am the sole officer in Aberdeen who deals with high hedges.
Mr Hamilton, you said that Fife Council uses planning officers—and what else?
We have an arboriculture specialist who deals with tree preservation orders and is qualified and previously worked in horticulture. We have her assistance not so much in defining whether something is a hedge—that is very much part of the assessment through the planning process and application of the legislation—as in identifying mitigation strategies, timescales, types of trees and the different impacts of all those.
Would she be called on to carry out site visits as a matter of course, or only in unusual circumstances?
She would not do so as a matter of course. The planning officer who is dealing with the case would do that. The arboriculture specialist is on hand; we take a flexible approach.
Do any of you have examples of people who have had a high hedge notice issued to them simply refusing to go along with it?
No. I am thankful that Aberdeen City Council has been successful so far.
No—although Fife Council had an appeal because the party who had complained felt that the mitigation was not significant enough. They appealed and additional work was required. By and large, the pattern so far seems to be that, once the parties are involved in the process, more often than not some mitigation occurs. Something is done that addresses the issue either before the case is resolved or at the outcome.
Perth and Kinross Council has had compliance with every notice that we have issued. In one case, the hedge owner did not comply by the date by which we required him to comply, so I took steps to take direct action. I contacted a contractor who said that he was scheduled to cut the hedge—its owner had contacted the contractor and the work was carried out within two weeks after the date. We have had full compliance.
It is clear to me that the act is unclear: that is obvious from what you have all said and from what previous witnesses have said. We need clarity on the definition of a hedge. Maybe it is just a personal opinion that I am asking for, but do you think that the provisions should be extended so that they definitely cover trees and we do not get bogged down with the word “hedge”?
I live in big tree country, in Perth and Kinross. Perth and Kinross is a tourist destination, and one of the attractions is the tree cover. I am not saying that, if we opened the act up to cover trees, it would devastate trees in Perth and Kinross, but it would be opening a door to something at a time when we are seeking to preserve and protect trees. If we were to broaden the act to include trees, that could give rise to a significant loss of urban trees.
My answer would have to be no. To do that would open up a significant area of unforeseen consequences through the impact that it would have on the tree cover in Scotland.
It looks as though you are getting a resounding “No”. I would not like to see the legislation extended. That would have a massive impact at a time when local authorities are beginning to recognise the benefits that urban trees bring to our cities. We are struggling enough to keep our tree cover without producing a piece of legislation that means that people can insist that the owners of trees have them cut down.
Before we conclude, I am going to ask each of the panel what specifically could improve the act to help you to carry out your job and to help people to get satisfaction. Before I do that, Andy Wightman has a question.
I have a general question. As you are aware, the committee is more likely to hear from people who are dissatisfied with the legislation than from those who are satisfied with it. Mr Hamilton mentioned at the beginning that the legislation is designed very much to be used as a last resort when reasonable endeavours have not succeeded. In general terms, do you think that the legislation is working well?
The legislation seems to be working well. All that I can go on is the fact that the number of applications that we have received has not been as significant as we expected. I do not know whether that is to do with the breadth of the act. All I can say is that the people who have benefited from their problems being resolved will inevitably feel that the legislation has achieved its purpose.
We have discussed a number of the difficulties with this type of legislation, which is different from legislation that covers planning permission for a fixed structure like a wall or a building because of the fact that we are dealing with something that is alive, that grows and that is to a degree semi-permanent. The impact of deciduous trees might be less when they are not in leaf, for example. A number of difficulties are embedded in applying the act, but on the whole, within the scope of what it covers at the moment it achieves what it needs to achieve.
Mr Wright, earlier on you mentioned that the threat of the legislation had been helpful.
Indeed.
Could you expand on that, given Mr Wightman’s question?
Especially in the first six months of the legislation being in force, we were getting emails and telephone calls from people looking for a bit more information on the act and what could be done. That is happening less often now, but we continue to get inquiries.
You will be aware that part of the act requires people to try to resolve the problem. Often, there have already been conversations, but we also encourage people to put a letter out to their neighbours highlighting the act and where they can find it. It is very rare that we hear back from those people. Over the years, it has been nice to be contacted by a good half dozen or so people who say that they do not need to come back to us because just the threat, if we want to use that word, of the legislation has been useful.
I have a further observation on that that the committee may want to ponder. A premise of the act is that the neighbours try to resolve the problem themselves and I suppose that in those circumstances we would not necessarily know whether the legislation had been helpful because the problem will have been dealt with by the neighbours.
I am aware that we have had people contact us in advance of putting in an application. We have explained the situation to them and they have gone and contacted the hedge owner, their neighbour, and made them aware of the act and the matter has been resolved.
Even for sites for which we do not issue a high hedge notice, I tend to include in a report a very short paragraph mentioning some work that I have noticed could be done, for example, on dead branches or dead trees within a given area—perhaps straying slightly outwith the high hedge issue, but nevertheless pointing out that there is scope for doing work. On two occasions, that work has been undertaken by the owner. Once, they clear-felled a woodland, not that I asked for that, but without a notice being issued it was cleared. We had another situation in which the individual went in and thinned out trees, reduced the crowns and so on, and that was not subject to a notice being issued. Comment was made about the management of their trees and it was responded to positively.
Mr Wright said earlier that he thought that the act was “incredibly beneficial” and created a lot of hope, whereas Mr Hamilton said that it heightened expectations.
One of the intentions of the act was that people would resolve their problems privately. The anecdotal information that the committee received about the English act was that more than 90 per cent of issues were resolved because the act hung over people like the sword of Damocles and they thought that they had better just sort things out. Obviously and unfortunately you end up with the intractable cases.
One other point is that the only local authority in Scotland that reduces fees according to someone’s income is South Ayrshire Council and I wonder whether the variance in fees from £172 to £500 puts people off applying for a high hedge notice. It is a lot of money to cough up if you will not necessarily be successful at the end of the day. That is why I asked earlier whether there should be full cost recovery if an applicant was successful. Do you have any evidence, anecdotal or otherwise, that the cost of the application is stopping people from applying for a notice? I am well aware that the councils should not be out of pocket, which is why they charge fees, but is that having an impact?
I ask all witnesses to answer that question, and also to make any final remarks that you wish to make about what could be done to make the act better or to make your job in implementing it easier, because we are now coming to the end of this session.
Clarifying the guidance on the definition of a hedge is one change that could be made. Perhaps some pictorial guidance might be helpful for members of the public. We issue our own guidance sheet, which is on our website. Informing members of the public about what is or is not likely to be a hedge might be helpful, even in pictorial form.
In so far as the high hedge notice fees go, we have set ours at £270 in Perth and Kinross and we have received 21 applications to date. I think £270 is quite a reasonable fee by comparison with others. I have had only one individual, who was a senior citizen, who said, “I cannot afford £270.” That is one response out of all the inquiries that I have received. It might be useful if we had a fee set. Just like the planning fees are set, why not set a high hedge notice application fee across Scotland?
12:00
You asked what might improve the act. I made an observation earlier about dealing more effectively with subjectivity, to give a bit more confidence in the act to those parties who are told that the local authority does not accept the planting as a hedge, by including some appeal process mechanism. That adds to the longevity of the process, but we can get into a situation, as colleagues here have explained, of repeated correspondence to try to justify our decision. An appeal process might be a way to expedite that and build up some sort of case law. I hope, and I have no doubt, that the committee’s deliberations will include some of the decisions that reporters have issued in their consideration of high hedge cases and will bring together those conclusions.
I sit on the development management subcommittee of Heads of Planning Scotland. When application fees were discussed around that table, with 32 local government planning authorities as well as the national parks, the number of applications that we had in Fife, at 23, was I think the largest number that had been received. Our fee is £385. A number of other authorities had higher fees and a number had lower, but there did not seem to be any relationship between the number of cases submitted and the fees that were set.
I will look at the question about fees first. When the act came into force, we were required to ask our council members for delegated powers to make decisions on any applications that we received. As part of that, we were asked to monitor for 12 months whether the fee was putting off potential applicants and then go back to the committee.
In that 12-month period, we had only two people who inquired about the high hedges legislation and who announced that they would not be able to afford the fee. In those situations, we encouraged them. The first steps that have to be undertaken by somebody who is looking to apply do not cost much. They are putting the problem in a letter, discussing it with the neighbours and even going through mediation. We are quite lucky in Aberdeen in that we have a free mediation service. We do not know, and this is part of the evidence gathering, whether they got to a certain stage and resolved the issue or got to a certain stage and did not come back to us to say, “We have tried every avenue and we are having to stop because we cannot afford it.”
I will move on to what I would like to see to make life easier and to help our citizens with the act. If you are used to looking at legislation, the act is quite clear that you have to have a hedge before you can class it as a high hedge, but that is commonly overlooked by those who perhaps are not used to looking at legislation. Although legislation is not necessarily meant to be the easiest thing in the world to read, the act is aimed at householders in general. Perhaps there could be a very clear statement at the start of the act, if that is the decision of the committee, that you have to have what is considered to be a hedge, before you can apply the tests of a high hedge. From a guidance perspective, I would encourage a narrative or a suite of tests that can be applied fairly across Scotland so that we have a standpoint and definition of what a hedge is.
That brings us back to where we started. On behalf of the committee, thank you for coming along this morning.
12:04 Meeting continued in private until 12:58.Previous
Strategic Housing Investment Plans