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Item 2 is an oral evidence session on the High Hedges (Scotland) Bill. This is the second of three evidence sessions that we are holding this month as part of our examination of the bill. We have two panels of witnesses today.
Good morning, Scotland—we can hear you loud and clear. My name is Roy Corlett and I am the legislation manager in the department of infrastructure on the Isle of Man.
My name is Peter Keenan and I am a southern area forester in the department of environment, food and agriculture’s forestry directorate.
Good morning. My name is Colin Whiteway and I am clerk to Braddan Parish Commissioners, which is one of the larger of the 24 local authorities on the island.
Good morning, Scotland. My name is Paul Parker. I am the community warden for Braddan Parish Commissioners and I deal with enforcement.
Thank you, gentlemen. As I said to you before we went live, I am Kevin Stewart, the committee’s convener. I will ask the first question and other members will ask questions as we go along.
From an Isle of Man perspective, we are aware of the proposals that Scotland seeks to introduce, which we recognise as being very similar to legislation that already operates in England and Wales. We are conscious that the Isle of Man legislation contains what is being proposed in Scotland and what is already in operation in England, which is why we have been asked to provide evidence today.
Okay, gentlemen. Your legislation is obviously somewhat different from ours. Have you had any difficulties with it?
We have had only a few days to discuss the issue with some of the larger enforcing authorities on the Isle of Man. It might help if I explain that, on the Isle of Man, we have nine Government departments. Two representatives from those departments are here today: I am from the department of infrastructure, and my colleague Peter Keenan is from the department of environment, food and agriculture. The department of infrastructure is responsible for overseeing local authorities on the Isle of Man and is involved in any legislation that could have an impact on local authorities.
My colleague Margaret Mitchell has a specific question on your legislation.
Good morning, gentlemen. My question may well be directed at Colin Whiteway and Paul Parker. We are examining the bill that is before us and deciding whether it should be extended to include trees and deciduous hedges. We are aware of the recent appeal court case in the Isle of Man, which was known as Boardman v Braddan commissioners. Will you outline for the committee the background to that recent appeal case and tell us whether it has led to any similar appeals?
I can explain that briefly. The complaint was submitted to the authority, and the community warden was asked to deal with the matter once he was confident that there was sufficient mediation between both parties. I will pass you on to Paul Parker, who will explain what happened then.
Good morning. Basically, the act in the Isle of Man requires all other avenues to be exhausted prior to any case being taken on board and reviewed by the local authority. We received the initial inquiry on 25 January 2011 from the complainant, Mr Boardman, and we explained the situation to him. He then went back and discussed the issues that he had with the hedge owner, which led to a formal complaint being submitted on 22 May.
It would be helpful if you gave some details about what the hedge owner and the complainant said in the case. What was the issue? Was it light or something else?
The main issue for the complainant was the amount of light for the garden and the property. He alleged that there was a continuous barrier to light, which affected the ground-floor rooms in his dwelling—mainly the living area and the kitchen area at the rear of the property. On investigation, we found that there was an issue, but not to the extent claimed. There was an adverse effect on part of the house, but not the whole house. The case therefore became quite complex.
That is helpful.
Good morning. The evidence suggests that no upper limit or cap is applied to the fees in the Isle of Man. What is the average fee for a single application?
I am pleased to assist with the answer. The fees on the Isle of Man are set at £150 and have been set at that figure for several years now. However, there is discretion to allow a refund, depending on the stage of the complaint at which the matter is dealt with—that might be after the first remedial letter is issued or a visit is made to the site. The department would encourage the two parties to continue talking and to take part in a mediation process, even though the fee would have been paid by the complainant.
Has the fact that there is no upper limit or cap on application fees in your jurisdiction proven to be prohibitive for those who are experiencing problems with nuisance vegetation?
I think that the department will look to gain views from all the local authorities on that issue. We have had only a limited number of cases in which an amount of the fee was paid.
I take you back to Boardman v Braddan commissioners. That sounds like quite a complex case and I am quite sure that it will have cost quite a bit of money. Who has been picking up the tab for that case?
The local authority picked up the tab for the case. We had to present it. Because it was so important, we had to instruct an advocate. By the end of the case, we had spent more than £7,500. We think that the complainant had spent considerably more than that. The case was adjudicated by the High Bailiff, and we were to meet our own costs so, in the end, £7,500 of the local authority’s money was spent on the matter.
When we are dealing with our deliberations, it would be interesting for our committee to have a comprehensive figure for how much the case cost. If it is possible to email that to the clerks, I would be grateful.
Good morning. I want to ask about fees. Will you clarify whether the £7,500 that we have just heard about was the cost of taking the case to court or whether it was all the fees, including the cost of the site visits that staff made to monitor the growth and barrier to light?
We have not calculated the cost in staff time. The £7,500 relates to the legal expenses that were paid to our advocate. The amount of time spent on the matter was extraordinary and I am sure that the cost would be many thousands of pounds. We could probably calculate that and come back to you with a figure, but the £7,500 was what we paid our advocate.
Paul Parker mentioned that there were a number of site visits throughout what I would assume was the growing season. If the barrier to light was being monitored, that would have to be done for 12 months and throughout all four seasons. I am concerned about the cost to a local authority of 12-month monitoring of any barrier to light or growth that might accrue before the local authority decides to take action.
Again, we would have to make a calculation, but Paul Parker spent a lot of time on making regular visits to both sites. We can probably work something out for you.
Did staff use specialist equipment when they were monitoring the barrier to light and other issues?
The most advanced equipment was a 6m pole. No specialist equipment was used at all.
Is the legislation that has been passed on the Isle of Man popular with people or has there been any campaign to suggest that it is overly cumbersome and too much of a burden on the population of the Isle of Man, compared with the legislation that has been passed at Westminster?
The department feels that the legislation has worked well on the Isle of Man. The majority of people can access the information—[Interruption.] The complainants and the hedge owners can mediate among themselves. The department would not necessarily hear much more about a particular case apart, perhaps, from a telephone call. People are advised to look at the website. They do their own research about the issue on the website and work out whether they have a case that they can take forward.
That would be useful.
There are quite a number of complaints—perhaps six or seven a year. Boardman v Braddan commissioners is the only case that has got as far as going to court. It is a landmark case. In general, the legislation has worked well.
Will you clarify that number? Did you say six or seven cases a year?
Yes. We are only one authority, but we have six or seven a year.
Is that for Braddan only?
Yes. There are a couple of larger authorities. We do not have the figures for those—I think that we will do some work on that—but we certainly have six cases a year.
It would be useful for our deliberations if, once you have undertaken your further work on the figures for the 24 authorities, you could send the information to us to provide us with a wider view of how much the legislation has been used.
We would be more than happy to assist the committee. I am sure that we can work out a figure from all the island’s 24 local authorities that would pinpoint the information that you require.
That would be great. Would it be possible to break that information down by type of dispute—that is, into disputes about hedges or trees—and by the subject of the applications?
Yes, by all means. We will try to break the information down into whatever format is most helpful for you.
That would be helpful.
Would it be possible to indicate not only whether the disputes were about single trees or hedges but whether they were about deciduous or evergreen plants? I know that you do not treat them differently in the Isle of Man.
Again, we will do what we can to assist.
That is most appreciated.
Section 4(4)(b) of the Isle of Man Trees and High Hedges Act 2005 requires the enforcing authority to consult the department of environment, food and agriculture on
All trees are assessed individually for biodiversity and amenity value. We consider that and take on board any questions or queries that are raised.
We have with us Mark McDonald, who is the proposer of the bill. He will ask you some questions.
Thank you very much, convener. Good morning, gentlemen. Most of the issues have been teased out, but I have a supplementary on biodiversity and amenity impact. Have local authorities been required to bring in external consultancy or external expertise on that, or is it all dealt with by central Government departments?
I can confirm that that is all dealt with through Government departments. The local authorities and the department of infrastructure work with the department of environment, food and agriculture. Peter Keenan will explain what qualifications the forestry officers have.
All foresters are trained to degree level. We also have trained arborists and wildlife officers in the department. We have a whole team that can be drawn on to give its views on any issues that may be raised.
In discussions that I had before I introduced my bill, a point was made quite strongly by local authorities about the need for an element of cost neutrality. It appears from your evidence that the legislation in the Isle of Man is not cost neutral, in that the fees that are charged do not cover the costs that are incurred. When Government advice is required on biodiversity and amenity, are those costs factored into the local authority’s costs or are they factored into central Government costs? Could you provide us with that information?
At the moment, the costs are covered by central Government, but it is probable that the department will look to undertake a review of the fees in the near future, in the light of experience.
The fees do not cover our costs, but absorbing that is part of our function as a local authority.
You mentioned that Braddan parish had about six cases per annum as a result of the legislation. To put that in context, will you tell us what the population of Braddan parish is?
There are just over 2,000 registered voters in the parish, but the parish is quite a large rate income producer, because it includes a lot of businesses.
Your legislation has been in operation since 2005. Do you feel that any parts of it could be amended or adjusted to make the system smoother and to allow it to work better? Is your legislation the best that it can be?
The department may wish to consult on that issue, or some local authorities may wish to draw issues with the legislation to our attention. The department would certainly be prepared to review any elements of the legislation if it received a request from a local authority. We would undertake due consultation to seek the views of all 24 local authorities on the island. Our colleagues from the department of environment, food and agriculture would be involved, too.
Thus far, have you had any requests to review the legislation?
Not at the moment but, in the light of recent developments, I suspect that that could happen in the next few weeks.
If that happens, it would be useful if we could be kept informed.
By all means. However, the emphasis in any proposed change is likely to be along the lines of reviewing the appeal process rather than the definitions that are in place. Perhaps my colleagues may be able to help on that.
From a local authority point of view, it might be beneficial to look at the definition, but it would not prove conclusive. Personally, I think that the issues that arose in the Boardman v Braddan commissioners case related more to the guidelines, which we might need to consider adjusting—I hope that we will be able to discuss that with the department in the near future. That issue, which has come out of the recent court case, has come to light since our discussions with the Scottish Government.
In that final example, is the tree or the property there first?
It is hard for me to say, as I have not been here for very long. Probably the tree is established first and is inherited by the property after the property is built. As my colleague Peter Keenan may confirm, due to the mild weather conditions on the island—we get very little frost—we get rapid growth of some trees.
Yes, in some locations.
In the cases that we have dealt with, it is probably 50:50 whether the tree was established first.
Gentlemen, I have a final question. Are there tree preservation orders on the Isle of Man? If so, how have those worked in relation to the legislation?
There are no tree preservation orders as such, but areas of trees and individual trees are registered under the Tree Preservation Act 1993. We monitor and supervise those as part of that legislation.
Have you covered the scenario where one piece of legislation might affect, or need to take precedence over, another?
We have had no such cases, to be honest, because everything has been sorted at the initial stages. As an authority, we are the Government body that issues felling licences for trees. We are unique in a way, in as much as home owners need to apply to us for a felling licence to remove any trees from their property. Obviously, that is not the case in the United Kingdom. We can deal with any cases that might crop up before they come under the Trees and High Hedges Act 2005. We can assess problems as and when they come up, and many of them are resolved by a site visit from us.
Gentlemen, we have no further questions, so I thank you very much for agreeing to give evidence. I am glad that we have got through this videolink evidence session without any problems. I thought that I had put the hex on the entire thing earlier, but obviously my luddite ways were proven wrong by the technology working all the way through.
The clerks have corrected me on what I said under item 1, because my briefing note was a little bit wrong. We had already agreed to take in private item 5, but do members also agree to take in private item 3?
I welcome our next panel of witnesses. They are Robert Paterson, who is a land services officer at Clackmannanshire Council and a member of the Scottish tree officers group; Eric Hamilton, who is a forestry officer at Dundee City Council and treasurer of the Arboricultural Association’s Scottish branch; and Graham Phillips, who is a forest manager for Bell Ingram Ltd.
I feel reasonably comfortable with the definition of a high hedge. It is tight enough to deal with the specific problems that the bill wants to address without giving too much scope for capturing individual trees and woodland trees.
As far as we and people to whom I have spoken are concerned, the high hedge definition must cover just high hedges and not any trees of any type. A high hedge must have been planted as and grown as a hedge. Provisions on trees being introduced to a bill on high hedges would lead to tremendous problems.
I agree entirely with my colleague Eric Hamilton.
You will have heard the last questions that we asked the Isle of Man witnesses, which were about tree preservation orders. You will be aware that the bill provides that, although local authorities can have regard to TPOs, they should not be constrained by TPOs in carrying out their duties under the bill. What is the panel’s view on that provision? We can start with Mr Paterson and work in the opposite direction from before.
The tree officers group has a specific response. Trees are protected because they provide amenity or landscape value or because of their intrinsic beauty in the area in which they grow. Secondary to that is the point that, if two evergreen trees were to come under the bill’s auspices, the bill would affect a few semi-evergreen trees, with the odd exception—their appearance and physiological condition could be ruined if pruning were undertaken to abate what was termed a nuisance under the bill.
I am aware of no cypress hedges or other hedges in Scotland that are the subject of tree preservation orders. Such orders can include hedges, but they have been used mainly for trees.
You will be aware that we are looking at the possibility of extending the bill to cover deciduous trees, so the question pre-empts your assumption.
I would ask Parliament to remove altogether from the bill any contact with tree preservation orders.
I support that view. If the bill is kept essentially to leylandii and similar hedges, the TPO section will be unnecessary. If the definition was broadened to cover single and deciduous trees, that could lead to valuable trees being damaged or lost.
So you would in no circumstances favour looking at the issue on a commonsense basis, with the passage of time. The Isle of Man seems to look at the particular circumstances and I understood from the Isle of Man witnesses’ evidence that trees that are covered by tree preservation orders there are monitored regularly through site inspections. The Isle of Man witnesses thought that they had almost pre-empted problems by doing that.
The issue should be dealt with more through a review of TPOs rather than through the bill. If a tree became dangerous, that would not preclude a TPO. The commonsense approach is valid, but it should be taken at the TPO stage rather than under the bill.
The question is particularly relevant to the other two panellists. I am not sure whether trees that are the subject of TPOs are regularly inspected in each local authority area in Scotland; perhaps you can tell me.
Parliament has given us a get-out clause in the current TPO legislation, because it does not define the length of time between each review of an order. My authority is undertaking a 10-year review after 30 years of not reviewing anything.
Similarly, Clackmannanshire Council has not had the resources or the time to review the existing tree preservation orders. We have produced three new orders in the past five years and have a total of about 27 orders, most of which are area orders that cover more than one tree. One order is specific to a Sequoiadendron giganteum that is a specimen tree in the village of Devonside. All the other orders are area orders.
Clackmannanshire Council is the smallest local authority, so I imagine that the resource problem would be much worse for larger authorities.
I agree.
In engaging with the issue, the bill was able to take one of two approaches. The approach that the bill takes is to have a tight definition of what will be caught. An alternative approach could have been to lay out the objectives and have guidance that led more to a judgmental situation in which officers would look at a case and decide whether there is a problem. What are your views on the relative merits and disadvantages of those two approaches to deciding when the law would apply?
Every application or complaint needs to be dealt with on its merits. I noted that your colleague Anne McTaggart MSP mentioned nuisance vegetation, on which our colleagues at Scothedge have actively campaigned for many years. However, the definition in the High Hedges (Scotland) Bill needs to be about what the title says—it needs to relate to hedges, as my colleague Eric Hamilton said.
Does Mr Hamilton want to respond?
No. The issue has been covered.
The evidence that we received from the Isle of Man, which works on a different definitional basis, suggested a much higher frequency of cases. Six or seven cases a year in a parish with 2,000 electors is perhaps more than we might have expected.
If the bill sticks to hedges, I will be able to deal with that comfortably. If trees are introduced to it, I will be taking early retirement.
What are the numbers, if I may ask that? I am a mathematician. I just cannot help it.
I would think that, in my urban environment, once all the hoo-ha had died down, I would be looking at 10 cases a year, or perhaps fewer.
Do you mean in Dundee?
Yes.
Mr Paterson, do you want to comment?
Yes. The mere fact that acts exist in England and Wales and, from a later period, in the Isle of Man has given some members of the public in Clackmannanshire the opinion that a high hedges act exists in Scotland. I get six to eight inquiries a year, a couple of which are repeat inquiries. In the case of three current inquiries, people are waiting for the High Hedges (Scotland) Bill to be enacted before they consider their individual situations further.
Do you have any comments, Mr Phillips?
I do not have any numbers based on local authority areas. I am aware of six cases in the past two years that would probably be subject to the legislation if it had a broader definition. They relate to four separate properties, rather than areas, and they all involve individual deciduous trees.
Good morning. On inclusion of trees in the bill, Mr Hamilton said that his option would be to take early retirement. The issue for us is that there is a demand to widen the scope of the bill to include deciduous trees.
I could not put that into numbers. There would be too many—we would be inundated. My switchboard and emails would light up.
You think that a substantial number of complaints would emanate from that if we extended the definition.
The number would be very substantial.
The bill defines a high hedge as being more than 2m high. In last week’s evidence and in the preceding evidence today from witnesses from the Isle of Man, we heard about examples of hedges that are more than 2m high in respect of which an element of local discretion might be applied or in which, because of privacy or other issues, the 2m limit might not even be appropriate. For example, a hedge might sit on a slope and overlook a garden or house. Is the 2m height limit appropriate or should there be more discretion in the bill with regard to the height of hedges that form a barrier to light?
As was described in the Isle of Man case, the topography of the land on which the vegetation is growing is given a great deal of weight in any such judgment. As I have suggested, each case has to be judged on its own merits. Obviously some calculation will be provided as a guide to take the matter further.
Do you wish to respond, Mr Phillips?
I support Robert Paterson’s comments.
On the barrier-to-light issue, the Isle of Man witnesses told us that the only measuring tool they use is a six-foot pole. Should more technical equipment be used in order to determine and define appropriate measurements when someone complains that a particular hedge is a barrier to light in their amenity or garden?
As far as I recollect, most of my complaints are about hedges that have been allowed to grow only 2m or 3m from windows or buildings. There is software to determine shade that could be applied to hedges that are further away and concerns about which relate to garden ground, but a pole would do for high hedges that are only 2m or 3m away from a property.
That is interesting. A high hedge might be only 2m or 3m away from a property, but surely it all depends on where the property lies in relation to sunlight or daylight. If the hedge sat to the west of a property, for example, would it be appropriate for someone to complain about its being a barrier to light if the main part of the building faced south? After all, we know where the sun rises and sets and the only time that that hedge might be a barrier to light would be in the late evening.
That is a problem. People work during the day and might come home expecting to see sunlight in their garden; instead, they find their garden shaded by the hedge. That certainly happens with trees, but hedges can be managed and controlled. As I have said, there is software to determine how much shade will come from a hedge of a particular height.
In the previous evidence session, Paul Parker, who is a community warden in the Isle of Man, said that throughout the year they carry out extensive surveys on the impact of the hedges or trees that have been complained about and how much of a barrier to light they actually are. Would local authorities in Scotland have to carry out the same due diligence and the same monitoring of the barrier-to-light issue for at least 12 months to ensure that any decision for lopping a hedge or tree was justified?
The case that our Isle of Man colleague Paul Parker cited went to court, and the situation was monitored for a full year to allow judgments to be made on what happened in the different seasons. I doubt very much that such an approach will be necessary in every case. If something like the “Hedge height and light loss” document that the Office of the Deputy Prime Minister issued for the England and Wales legislation were to be made available in Scotland specifically for hedges, making a calculation and a judgment would be a straightforward process.
Let me just clarify that, Mr Paterson. In your opinion, that would be specific to hedges.
Yes.
It would not include trees or other vegetation.
No. As I stated earlier, deciduous trees have never been the subject of precedence or successful court cases with regard to loss of light. Light would have to be totally excluded from a property for the entire year and for a significant number of years before a civil action would even be considered. I strongly suggest that the same would apply to individual deciduous trees and groups of trees and that they should be excluded from the bill.
I thank the witnesses for their evidence.
I have Anne McTaggart and Stuart McMillan on my list. I wonder whether you would mind if I let Mark McDonald in. He has to go to the Finance Committee. Do you mind?
No.
That is fine.
I thank committee members for their forbearance. Mr Hamilton, in your written evidence you suggest that there should be a standard fee across all Scottish local authorities. Is it your view or the view of your organisation that the costs that would be borne by local authorities would be of a similar or equal value?
The policy would be easier to apply if there were one price for all. I do not know how much everybody else gets paid, but most local authority tree officers are on the same salary—it is when lawyers and everybody else gets involved that the price goes up.
Does the tree officers group have a view on that?
Aye. The fee will vary depending on the local authority that takes the case and the number of different departments that are involved—the legal advisers and others that Eric Hamilton mentioned. From the initial meeting that I had with my service manager at Clackmannanshire Council, I know that she takes the view that we should deal with such issues as we deal with planning applications and should apply the same fee. That may be the way in which Clackmannanshire Council will take the matter forward.
Although the definition in the bill may not deal with all the cases that Scothedge raised, do you feel that it would address the majority of cases that exist in your local authority areas in high-hedge or vegetation-related matters?
If the definition remains that of a hedge, I think that it will.
If the definition means a hedge and not trees, the bill will do what it says on the tin.
I have no further questions at this stage, convener. Thank you for your time.
Mark McDonald just asked the questions that I was going to ask about fees, convener, so they have been covered.
Good morning, gentlemen. Mr Paterson, you just referred to planning.
I am sorry.
I know. In the evidence that we heard today from the Isle of Man, the question was posed: what came first, the tree or hedge or the house? By the time that we got to the end of the answer, there was a 50:50 split. In some of the information that we have heard from you today, there has also been debate about what existed first.
When construction is concerned and planning consent is required, such as for an extension to a house, the advice note BS5837—the amended 2012 version—takes cognisance of trees in relation to the proposed development. Advice would be given to our development team on how the application should be processed in view of that issue.
Is that just in relation to an extension?
No, that would be for any type of construction, but you mentioned a conservatory or something like that. For anything that requires planning consent, if there are trees involved there should be a consultation process whereby the tree officer is asked to give advice to the development team on the relationship of the proposed building to the tree and whether there would be any adverse effects on the residents—the occupants—or indeed on the tree.
What happens if there is going to be a new housing development?
The same thing applies.
That is helpful. Thank you.
Mr Paterson, your written submission refers to what could be described as an original-intention-of-planting test. It says:
It is realistic. As we said in the submission, in such a situation we have to take into account the intention at the time of planting and how the trees have been managed. Lawson cypress trees, for example, are often planted as a hedge but they are also often planted as ornamental trees because there are so many different variants of them, including golden, green and blue types. It is not uncommon for them to have been planted as ornamental trees around large houses and estates that have then had houses built around them. At large houses such as Balloch castle, cypress trees are a feature of the landscape—there is a formal double row of cypress trees either side of a path leading to Balloch castle.
In the example that you cite there might be some documentation—something written down about why the trees were planted—but in the vast majority of cases it would be one person’s word against the other’s: “No, no, I didn’t mean to form a hedge”. Regardless of that, the fact of the matter is that something might look like a hedge and have the effect of a hedge. How relevant is the original intention if someone is faced with something that is doing everything that a hedge does?
In almost all such circumstances, you would find that there would still be some tree shape to the plantation. There would be little or no evidence of any trimming. That would give the tree officer the opportunity to decide what the intention had been.
Do you think that there could be a blanket provision, or should it be tailored to certain circumstances?
As we said earlier, the definition in the bill has to relate to hedges. A tree officer would know immediately if two or more trees in a row had been intended to be planted as a hedge. A hedge is generally maintained at some stage in its existence, if not by every owner of the property over the years.
Forgive me but, again, I do not see the relevance of the intention, other than in very specific circumstances such as for historical or cultural reasons, in which case it would not be a blanket provision.
Yes, you are correct in that sense.
I want to examine that further. Mr Paterson, you talked about a row of cypress trees that were planted 100 to 150 years ago when there were no adjacent properties but which are now adjacent to land on which a developer wants to build houses. Is your fear that whoever moves into those houses could say, under the legislation, that they want those cypress trees to be cut down to 2m because they are a barrier to light getting to the newly built house into which they have just moved?
Surely a developer, a local authority or whoever moves into the house should take the fact of the trees’ existence into account before they build or buy the house.
If only common sense applied across the board. The other week, I talked about someone who moved next door to a playground and then campaigned for the removal of the playground. Mr Wilson’s point is extremely relevant. We should forget about what common sense would normally suggest and deal with the question as is.
My concern is to do with the urban growth areas. Last week, the Scottish Wildlife Trust gave an example of the occupiers of a new development that had been built next to a woodland glen complaining about the larch trees that someone had planted at the edge of the glen 30 or 40 years ago, which led to the Scottish Wildlife Trust stepping in to take remedial action. That situation arose because there were no houses there when the trees were planted.
I think that I have already covered this, but I would have thought that a row of cypress trees such as you describe would have some impact on the landscape, as it provides a feature within the estate on which properties are built.
Section 1(1) says:
That would be the general opinion of the public, but it is not how the legislation works in reality. That is not how it works in England and Wales. If an evergreen hedge is involved, it is reduced to a height that allows the optimum amount of light while retaining the hedge.
Mr Hamilton was desperate to come in on that point.
I would not class an avenue of mature Lawson cypresses as a hedge. If the trees had been planted significantly far apart—4m, 5m or 6m apart—and they matured, I would not class that as a hedge. It is an avenue of trees.
I refer you to section 1(1)(a), which says that a hedge
My understanding of section 1 is clear, which is that it applies to a hedge or two or more trees growing closely together. We would seek to have the latter part of the provision removed because it could relate to a couple of mature yew trees that are 3,000 years old. If, as you suggest, those trees are reduced to 2m high, we will no longer have yew trees that look individual. However, in no way does section 1 suggest that the resultant height of the hedge should be 2m. It merely expresses that action will not be taken unless the hedge is more than 2m high.
As I said, it will be down to interpretation. If the bill is passed, an interesting development will be the public’s interpretation of the act as opposed to that of local government officers in the field. I thank the witnesses for their evidence.
Mr Phillips, you say in your submission that yew hedges should be excluded. Will you put on record why you consider that to be the case?
In the majority of cases where I find yew hedges or avenues of yews that have grown together, they tend to form part of a historic landscape. Churchyards are the prime example, and there are also policy grounds of old houses. That is one reason why I would want extra protection for that type of hedge or row of trees.
Would it be sufficient for the legislation to include a presumption against the inclusion of yew hedges while allowing for the odd, random case in which a yew hedge could be unacceptable?
I think that I would be content if there was a written presumption in the bill against action being taken on yew hedges.
I turn to Mr Hamilton’s submission, which was very concise—I like concise. To the question that asked whether there are
We should leave out any reference to TPOs and leave it at high hedges.
I absolutely concur.
I would agree.
I thank you for your evidence, gentlemen.