High Hedges (Scotland) Bill: Stage 1
The next item of business is a debate on motion S4M-05535, in the name of Mark McDonald, on the High Hedges (Scotland) Bill. I call Mark McDonald, who is the member in charge of the bill, to speak to and move the motion.
14:21
Thank you very much, Presiding Officer. I welcome you back to your place. It is good to have you back in the Parliament with us.
I am pleased to open the debate on the High Hedges (Scotland) Bill. I thank the Local Government and Regeneration Committee for its detailed and thorough consideration of the bill, in which it was supported by the Subordinate Legislation Committee and the Finance Committee.
I am also grateful for the support that ministers have given me in taking the work forward. It is the furthest that any high-hedge proposals have got in the history of the Parliament, and a great deal of work has gone into the bill to get us this far.
I and those supporting me have met a number of people and organisations from throughout Scotland and elsewhere. Tony Dixon from Hartlepool Borough Council and Simon McGinnety from South Tyneside Council, both of whom I met in December 2011, were able to give me a great deal of assistance in understanding how high-hedges legislation has worked elsewhere.
Ian Edwards, Elspeth Forsyth, Steve Milne, Robert Paterson and Eric Hamilton from the Scottish tree officers group provided me and the officials supporting me with much expertise and advice—I hope that they will continue to do so.
I thank Joe McIndoe, the owner of the Mill Garden Centre in Armadale, West Lothian, who kindly allowed me to use his garden centre as an excellent venue for the launch of the bill last October.
I am also grateful to Scothedge, which has campaigned for such legislation for many years and which has engaged positively with me throughout the process.
I make it clear at the outset that the bill is not an attempt to define the height of every hedge in Scotland. Many people who own, or live adjacent to, a high hedge will have no issue at all. I seek not to create disputes were none exist but to resolve existing ones.
It is clear that a number of intractable disputes revolve around the presence of a high hedge. The problem is that there is no way to resolve them if there is no willingness to do so amicably. By introducing the bill, I have sought to provide a mechanism to remedy that.
The Scottish Government consulted on the matter in 2009. That consultation gave an indication of the extent of the problem. There were more than 600 responses, 93 per cent of which were from private individuals, many of whom described themselves as being in dispute.
The bill aims to provide an effective means of resolving disputes about the adverse effects of a high hedge where the issue has not been amicably resolved between neighbours. It acknowledges that the individuals involved should have primary responsibility for resolving such disputes.
The bill defines a high hedge. The definition largely mirrors the one that is used elsewhere, and I am pleased that, in the stage 1 report, the majority of the committee agreed with the definition. I will refer to that report a little later.
The bill gives home owners and occupiers a right to apply to a local authority if it is considered that a high hedge adversely affects the reasonable enjoyment of property. However, although the bill provides a mechanism for resolving disputes, it also provides that pre-application requirements must be met. That means that applicants must have taken all reasonable steps to attempt to resolve the dispute beforehand. Recourse to the local authority should be the last, not the first, resort.
The bill empowers local authorities to make and enforce decisions about high hedges. It gives them powers to assess the situation and act as an independent and impartial adjudicator of whether a high hedge is affecting the reasonable enjoyment of property. We must bear it in mind that that means that local authorities will seek to strike a balance between neighbours’ competing rights. Authorities will also need to consider a hedge’s effect on an area’s amenity and whether the hedge has any cultural or historical significance.
I thank Mark McDonald for introducing the bill, which I think will help a significant number of my constituents in Stirling. He will be aware that I wrote to him earlier this week about people’s concerns about trees being cut back illegally, about trees being unintentionally impacted on and killed, and about trees being too high to be covered by his bill. Will he comment on that? I found his letter helpful.
I received the letter that Bruce Crawford sent me. It is worth stressing that any decision about action that is to be taken will be the preserve of the local authority officer who assesses the situation. No hedge will be too high to be included in the bill’s scope. I have included a trigger height beyond which hedges can be considered, but there is no maximum height to which the law will apply.
The English legislation talks about not requiring hedges to be reduced below a certain height, and it prohibits the removal of hedges. I have not inserted such a provision in the bill, because it is important to give priority to professional expertise. It should be up to the tree officer to make the decision.
Once an assessment has been made, a local authority may issue a high-hedge notice. The notice can set out what needs to be done to address the problem and prevent it from recurring. It can also specify a reasonable time in which the initial action is to be taken, and it may provide for a longer time for preventative action to be taken—that will depend on the circumstances. Should the hedge’s owner not undertake the work that is specified in the notice, the council will have the power to enter the property, undertake the work and recover the costs of that work.
An appeal process will be available to allow appeals to be made to the Scottish ministers. In practice, the directorate for planning and environmental appeals, which has experience of similar appeals to those that are proposed, will decide the appeals on ministers’ behalf.
I came to the issue with an open mind on how such situations should be resolved. I pay tribute to Fergus Ewing, the previous Minister for Community Safety, for the work that he did to bring us to the current stage, which gave me a sound basis on which to build and from which take things forward. I came to the view that we needed a straightforward means of resolution, which meant empowering local authorities to take action should the problem be particularly difficult to resolve.
Such a path has been followed elsewhere. I investigated that option directly with local authorities in England, and the information that they gave me provided reassurance that the problems could be resolved. The approach provides a degree of certainty that costs will not be excessive. It also ensures that the problem that the hedge causes can be tackled in a relatively straightforward way.
As Mr McDonald knows, I was the sole member of the Local Government and Regeneration Committee who did not agree whole-heartedly with the proposed definition. Given that background, will he agree to accept an amendment from me that is based on the recommendation in the committee’s report that the system should be reviewed within five years of any act coming into force, if that act contains the narrow definition that is in the bill?
I am just about to talk about the committee’s report. I would be absolutely happy to accept such an amendment if Mr McMillan was minded to lodge one; otherwise, I would have done so. I would also be happy to discuss with him how best to frame that amendment.
I am pleased that a majority of the committee was content with the definition of a high hedge as set out in section 1, and I am even more pleased now that Mr McMillan has indicated his willingness to lodge an amendment that would satisfy some of his concerns. I am aware that a number of people who responded to the committee’s call for evidence addressed that point. Some evidence suggested that the definition should be broader and some evidence suggested that it should be narrower.
I think that the committee’s majority conclusion is the right one and that the bill strikes the right balance. On the basis of my discussions with local authorities in Scotland and elsewhere, I think that the definition should mean that the costs that are associated with implementing the bill should not be excessive and that the numbers should not be unmanageable.
In its report, the committee asked for clarification of instances
“where a local authority is considering an application where one or more of the properties concerned in the application for a high hedge notice are owned by the local authority.”
I am happy to confirm that the bill requires only that a high hedge must be on land that is owned or occupied by someone other than the applicant for a high-hedge notice. Otherwise, there are no such restrictions on the location of the hedge. The hedge could be situated on land that is owned by the local authority. Nothing in the bill prevents a high-hedge notice from being issued against a local authority. Indeed, the appeal process builds in a further safeguard, should there be dissatisfaction with the outcome of any adjudication in that regard.
I am happy to agree with the committee’s recommendation that the bill should be amended to include the national park authorities as statutory consultees. That request was made by one of the national parks and was supported by the Scottish tree officers group in its written submission.
The committee also recommended that a review provision be included, on which Mr McMillan helpfully suggested that he would seek an amendment. I am happy to take that forward.
I noted the committee’s conclusions in respect of the provision in section 34, the intention of which is to allow the current meaning of a high hedge that is contained in section 1 to be amended by regulation. I also noted the Subordinate Legislation Committee’s different interpretation of the width of the power in section 34. It expressed the view that
“it appears to be possible for that power to be used in the future so as significantly to alter the scope of the Bill”.
I am keen to hear the members’ views on that provision in the debate, following which I will consider what action might need to be taken. As part of that process, I will assess how addressing the points that the committees have made might impact on the bill. I will give further consideration to the matter and will contact both committees to confirm my intentions ahead of stage 2.
The Local Government and Regeneration Committee noted the concerns that were expressed in evidence about how the bill’s provisions relate to tree preservation orders. I said in my evidence that in circumstances in which a tree preservation order might be in place, high hedges would be
“dealt with through a pragmatic approach, which will not be frustrated by other legislation and will ensure that protections for valuable trees are kept in place.”—[Official Report, Local Government and Regeneration Committee, 19 December 2012; c 1570.]
I am glad that the committee is satisfied with that approach. That is welcome.
The committee is also content with the provisions that require local authorities to set fees at a reasonable level. As drafted, those provisions mean that a fee that is fixed by the local authority
“must not exceed an amount which it considers represents the reasonable costs of an authority in deciding an application”.
That gives local authorities sufficient flexibility while still allowing them to recover costs.
I thank Scothedge for its campaigning work in bringing about the bill. I welcome the attendance of so many MSPs and members of the public for the debate, which demonstrates the strength of feeling that exists on the issue.
I am delighted to say the words that so many people have waited to hear being said in the Scottish Parliament:
I move,
That the Parliament agrees to the general principles of the High Hedges (Scotland) Bill.
I call Kevin Stewart to speak on behalf of the Local Government and Regeneration Committee.
14:32
Thank you, Presiding Officer. I, too, am glad to see you back.
The High Hedges (Scotland) Bill came before the committee in October 2012. We received 90 submissions to our call for evidence. The overwhelming majority of the people from whom we heard wanted legislative action to address the irresponsible actions of a very small minority.
As part of our consideration of the bill, we held three oral evidence sessions. I thank everyone who responded to our call for evidence and all those who gave oral evidence. It did not come as a surprise to me or to other members of the committee that it was a debate that generated quite a lot of heat. There is probably not a member in the chamber whose constituency mailbag has never had a high-hedge case in it.
I also thank the clerks, the Scottish Parliament information centre and the official report for their support and assistance, and put on record my thanks to all the members of the committee, who were extremely assiduous during the course of our discussions. Members should note that I said “assiduous” and not “deciduous”. I am sorry for that very bad joke, Presiding Officer.
The key issue was the definition of a high hedge. Some people wanted the bill to become the high trees and hedges bill; some people wanted specific trees—generally native evergreens and others such as holly, juniper and yew—to be exempt; and some people wanted anything that constituted a barrier to be included, regardless of type, origin or species, and did not see a difference between deciduous trees and evergreen or semi-evergreen hedges. We had some sympathy, but we were warned by, and agreed with, the majority that keeping it simple was best.
We accept that care is needed to avoid adverse impacts on wildlife or biodiversity, which could have a number of unintended consequences, not least for costs and workload for local authorities. A majority of the committee supports the simple definition in the bill, which follows the tried-and-tested approach taken in England and Wales. During our evidence sessions, we heard from the Isle of Man, where there have been difficulties in extending a similar bill to include other species and trees. We also heard about some of the associated costs—particularly the legal costs—of adding such provisions. Unfortunately, I cannot give definitive figures, because we do not have them.
Evidence was received on the link with tree preservation orders. Some favoured that link, but others did not like the connection. The committee agreed that the test local authorities must apply is similar to the test for the making of a TPO, and that it therefore made sense for the two to live together. If an authority decides that a high-hedge order is appropriate and action requires to be taken against a tree that is part of the hedge, it is implicit in that determination that the continued existence of a TPO is not appropriate.
There was a considerable amount of evidence on who should pay the local authority’s costs and on how much the costs could and should be. Perhaps unusually, local authorities had little to say on that, provided that the bill’s impact on them was cost neutral. Those affected by high hedges were adamant that the hedge owner should pay all costs incurred. Such a scheme is possible, but it would increase complexity and, paradoxically, costs. Under the bill’s proposals, the owners of high hedges will have to pay and will be liable for the costs of action taken to reduce the height of a hedge. The committee agreed that, ultimately, the intention was not for action to be required but for parties to reach a mutually acceptable agreement. Under the bill, there is a financial incentive for both parties to reach agreement. The committee hopes that many disputes will be resolved amicably—indeed, it accepts that that will be the case. We have anecdotal evidence that some disputes have already been resolved because of the bill’s introduction.
Other areas that the committee considered and made recommendations about include concern that the body of expertise available to local authorities about trees and hedges is diminishing rapidly. The committee suggests that the Government should consider establishing a central tree officer so that a core of expertise is available to all local authorities. We understand that such an officer already exists in Wales. It will do no harm to see how Wales is getting on with the way in which that has been set up, from which we can perhaps learn lessons.
Another concern is that we must ensure that where the local authority is a party to an application, either as the applicant or the landowner, sufficiently independent and transparent arrangements are in place to ensure that justice can be seen to be done. Such an apparent conflict is not novel; it also occurs in planning, for example, and is successfully addressed there.
We should take advantage of the current review of planning guidance to ensure that future problems with hedges and plants are avoided. The committee recently visited Cumbernauld where we saw some woodland that the Scottish Wildlife Trust had cut back after talking to local residents. Some such disputes would not happen if they were dealt with by a planning authority at the outset. There are lessons to be learned in that regard.
We recommend that the national park authorities be made statutory consultees in all applications for high-hedge notices made within their park areas.
We believe that the legislation should undergo a full review after it has been in operation for not more than five years. That will allow the questions around the definition and fees to be looked at, and it will present an early opportunity for amendments in the light of operational experience.
Our conclusions are that the committee supports the bill’s general principles and agrees with the approach that it takes to the definition of high hedges. We have made recommendations that relate to having a central tree expert and reviewing planning policy in the area, with the national parks authorities included as consultees. We would also like to see a reasonably early review of the operation of the legislation.
14:39
I also welcome you back, Presiding Officer.
I am pleased to participate in today’s debate and to reiterate the Government’s support for Mark McDonald MSP and his High Hedges (Scotland) Bill. Our 2011 manifesto committed us to introducing a bill to provide a legal framework for settling disputes relating to high hedges. I hope that today we will move that commitment on a step.
I pay tribute to the Local Government and Regeneration Committee for its work and, in particular, the thoroughness of its report. In its consideration of the bill, it has been supported by the Subordinate Legislation Committee and the Finance Committee.
I also acknowledge the hard work and efforts of all those who gave evidence to the Local Government and Regeneration Committee during the oral evidence sessions in December, and of those who responded to the committee’s call for evidence. I know that the committee had to consider a wide range of views and talk to many experts—and not just from Scotland. There has been discussion of the effectiveness of the legislation in England and Wales, how aspects of the recent legislation in Northern Ireland might work and the slightly different legislative approach taken by the Isle of Man.
The Government recognises the need for action to be taken in the area, especially following our 2009 consultation, which attracted more than 600 responses. That indicates the extent of the issue, which members will know about from correspondence. Members will also know about the frustration that the issue can cause constituents. The responses to the committee’s call for evidence and the evidence from Scothedge in particular made clear the serious impact that high hedges can have in the most serious cases.
We recognise that Scotland is the only part of the United Kingdom that does not have legislation to deal with the problem of the height of hedges. That, of course, presents us with the opportunity to learn from elsewhere. The bill learns from the experiences of others—that is also evident in the accompanying documents. The work that Mark McDonald undertook, which is set out in the policy memorandum, shows that although councils can receive a lot of inquiries at the outset, those tend to be followed by a low level of formal complaints and an even lower level of necessary enforcement action by a local authority. That suggests that the very presence of legislation encourages the resolution of disputes between neighbours, as has been mentioned. Providing members of the public with mechanisms to resolve disputes about high hedges must be the way forward.
Ministers have supported the bill from the outset. Mark McDonald announced his intention to introduce the bill on 8 September 2011. Ministers announced their support for him at the same time, and have continued to support his work through public pronouncements, particularly in the Government’s memorandum of 30 October 2012. We have also provided practical assistance.
I welcome the Local Government and Regeneration Committee’s thorough and detailed report. It is clear that no stone has been left unturned. The oral evidence sessions were informative and in depth.
I do not intend to go into the detail of the bill; that is for Mark McDonald to do. However, I will discuss a number of the key conclusions that the committee reached, including those that will be for the Government to implement. When I gave evidence on 19 December, I said that I considered that the definition in the bill was appropriate, and I am pleased that a majority of the committee members agree. I indicated then that I felt that the definition struck the right balance and needed neither narrowing nor expanding. I am also pleased that the Convention of Scottish Local Authorities supports the bill as drafted.
I also note that the committee is content with the fee provisions as set out in the bill. As they stand, those provisions allow local authorities to set a fee at a level that reflects the cost of making a decision about a high hedge. That approach gives local authorities the flexibility to set a fee at a level that reflects their circumstances, while making sure that fees cannot be used to raise revenue. The bill also provides that local authorities can set different fee levels for different applications and can refund fees in circumstances that they will determine.
The committee also considered the interaction between tree preservation orders and the bill, which takes a pragmatic approach to such orders. The bill will ensure that a high-hedge notice will not be frustrated by the TPO process, while recognising the protection that such orders give trees.
The committee recommended that
“the Scottish Government take the opportunity of the on-going review of Scottish Planning Policy to examine the issues raised such as residential development in proximity to woodlands.”
I understand that the point attracted considerable discussion in the committee’s evidence-taking sessions and I am happy to tell the chamber that, as I have informed the committee, my officials will consider the issue as part of that on-going review.
The committee also recommended that
“the Government examine the feasibility of establishing a central tree officer to provide a core of expertise to local authorities”.
I am happy to confirm that my officials will discuss the recommendation with local authorities as part of their preparations for the legislation’s coming into force.
Of course, the committee has drawn from its detailed work a number of other conclusions and recommendations, some of which I have referred to and many of which will no doubt be discussed in today’s debate.
Having set out the Government’s intentions in respect of the committee’s stage 1 recommendations, I am happy to reaffirm that the Scottish Government will continue to support the bill as it moves forward. I am aware that many of us are keen to resolve these issues, so I look forward to an interesting and enthusiastic debate. As has already been highlighted in the opening speeches, the bill itself is being informed and shaped by the on-going dialogue, and I commit the Government to continuing that dialogue as the bill progresses through Parliament.
14:46
Given that, as has already been pointed out, the bill has been a long time coming, it is crucial that we get it right. It builds on the previous work of and discussions held by former MSP Scott Barrie, who had two goes at getting a member’s bill through Parliament. I very much welcome the fact that Mark McDonald has picked up the issue in his own bill.
I also welcome Mr McDonald’s helpful opening comments, which have given the chamber a sense of how he will respond to some of the committee’s recommendations. It is always useful to have a sense before stage 2 of what the member in charge of a bill is happy to negotiate over.
I agree that we can learn from and build on the experience of similar legislation in the rest of the UK. The issue that stood out for me was that of best practice guidance, and we need to build on experience in that respect to ensure that the bill has a decent chance of having the positive impact that we all want it to have in providing a framework for resolving disputes.
Crucially, the bill also offers the prospect of assisting both members of the public and local authorities, which are charged with implementing its provisions. The issue is not limited to a particular part of Scotland; indeed, it is a source of conflict for many members of the public. Like other members, I have had a certain amount of casework on the subject although, interestingly, it has related not to hedges but to matters that I suspect the bill will not cover.
Another interesting development is that the introduction of and debate over the bill has been enough to settle some of those conflicts in advance of the new powers being introduced. My experience is that disputes that have been going on for some time and have become established are by their nature difficult to resolve, and anything that pushes people to concentrate their minds and reflect on the fact that not resolving matters amicably with their neighbours will have consequences and costs will be good. Many of us have such direct knowledge. Given the importance of reaching a fair resolution, a right of appeal and clarity about the process, too, will be important.
The bill’s laudable aim, as has been well summarised elsewhere, is to identify a means to address the problem of disputes between neighbours where high hedges have become a point of issue and one set of neighbours form the view that the aforementioned high hedge has interfered with their reasonable enjoyment. Whether the bill gets it right when it is implemented will be the test, but the Labour Party has no hesitation in signing up to the principle behind the bill, alongside the very many people who responded to Mark McDonald’s consultation.
Nevertheless, we need to look at the detail. There has already been discussion about whether the definition in the bill gets the balance right. I encourage the committee to spend a good bit of time on that issue at stage 2; after all, this is our chance to get right a piece of legislation that has been hanging around for some time now. Even if is difficult and even if people are not happy with where it ends up, we should still have that discussion in a bit of depth. The discussions that have been had so far have been helpful, but the definition is an absolutely crucial issue. The Scottish Government’s involvement is central to getting the matter right, so I welcome the minister’s confirmation that discussions will be held.
On the definition being crucial, I am somewhat concerned about the proposal that it could be changed through secondary legislation. Does the member share my concern that that may be ultra vires?
Among the final points that I intended to make is that the committee will need to consider the Subordinate Legislation Committee’s comments on that very carefully. People on both sides of the argument will want to know that the issue has been settled one way or the other. That is why I encourage the committee to feel free to take its time at stage 2 on that because I predict that, regardless of where the committee ends up, the matter will come back for years to come. Let us make the most of the chance to discuss it.
As I was about to say, I welcome the minister’s commitment to enter into discussions on whether to have a central tree officer. Arguably, that will be fundamental to the success of the bill in the early years. Therefore, I hope that the minister will firm up his comments by the time that we reach stage 3. Given that the principle of cost recovery regimes is that they encourage people to agree in principle, if the fees are to reflect the costs of action, a central resource could be cost effective for everyone, particularly if it allowed local authorities to seek expertise. That would make a lot of sense because it would keep down costs across the country. The evidence suggests that, although authorities have tree officers to deal with TPOs, the number of tree officers has been cut back—they have been hard hit by staffing cutbacks over the past few years. The provision of new expertise, new information and a central resource would be money well spent, particularly in the early years to ensure that the legislation got off to a good start.
Let me briefly cover the definition—
You have 20 seconds remaining.
Witnesses on both sides of the debate were concerned about the issue of definition. Let me give a flavour of a couple of the comments that I received. One respondent noted that leylandii that are too high will not be covered, because existing Scots law states that, if any damage would result from trimming, one may not trim. Somebody else commented that the trees that the neighbour has in her garden grow 50ft tall, but although there are more than 17 of them, they would not be covered under narrow proposals in the bill. Another person commented that we should not leave the same loophole as exists in the English high-hedges law.
It is crucial that we debate the issue at stage 2 because people are waiting in the hope that we will come down on one side of the argument or the other.
I would be grateful if you would draw your remarks to a close, please.
The Subordinate Legislation Committee’s comments also need to be taken on board.
I welcome the fact that we are at stage 1. The relationship with TPOs and Scottish planning policies will also be important, and I hope that this afternoon’s debate will explore that.
14:52
Let me begin by congratulating Mark McDonald on achieving the not inconsiderable feat of progressing his member’s bill to a stage 1 debate and of doing so with the general support of the Local Government and Regeneration Committee. It certainly makes a pleasant change for members of the committee to be more or less of one mind on the legislation before us, given that the previous bill that we considered was the somewhat more contentious Local Government Finance (Unoccupied Properties etc) (Scotland) Bill.
The high-hedges issue has been debated in this Parliament for nearly a decade. As other members have stated, few MSPs will not have had constituents coming to them to complain about the height of neighbouring hedges. As such disputes tend to be on-going for a number of years, they can adversely affect the health and wellbeing of both parties.
For many years, the Scottish Conservatives have campaigned to change the law on high hedges in Scotland. As far back as 2006, when the Parliament considered the Planning etc (Scotland) Bill, we submitted amendments in an attempt to introduce a similar scheme to the one that exists in England. I, too, remember that Scott Barrie made valiant attempts to get a similar bill on the statute book when he was an MSP. Therefore, I am pleased that legislation has now been introduced that aims to provide a solution for those whose enjoyment of their property is impeded by high hedges.
The bill has the potential to establish a Scottish system for resolving disputes over high hedges. I thank both the witnesses who submitted evidence—sorry, that sounds as though there were only two, but I thank all the witnesses—and the Local Government and Regeneration Committee clerks for their hard work in producing the stage 1 report.
I will restrict my opening remarks to commenting on the main provisions and objectives of the bill. At the outset, it is important to state that the bill is intended to provide an option of last resort. Section 3 makes it clear that, to make an application under the bill, the applicant must first have taken “all reasonable steps” to resolve the matter. In other words, the bill is designed to discourage trivial claims.
The bill defines a nuisance hedge as one that
“is formed wholly or mainly by a row of 2 or more evergreen or semi-evergreen trees or shrubs”,
is more than 2m high and
“forms a barrier to light.”
The Local Government and Regeneration Committee thoroughly debated the definition, taking into account several factors. The first was the issue of single trees. A number of those who gave evidence to the committee, including Scothedge, expressed disappointment that the bill does not cover single trees, which represent 49 per cent of all Scothedge cases. The committee decided against extending the bill in that way at this stage, having heard evidence that that not only would have significant biodiversity implications but could result in a flood of applications, at great administrative and financial cost to local authorities.
Other witnesses, including the Scottish Wildlife Trust and Bell Ingram, suggested that the definition should exclude native species of evergreen and semi-evergreen plants because of their greater biodiversity value compared with that of non-native species. However, native species can cause as much misery to the lives of home owners as non-native species can and although biodiversity is important, it must be balanced against other objectives that the bill seeks to achieve, such as the right to light and enjoyment of property free from the distress that high hedges can cause. The definition in the bill seems to strike that balance appropriately.
On fees, the main questions were whether there should be a cap on fees and whether a loser-pays principle should be applied. On balance, we considered that fees should be set at an appropriate level that discourages petty complaints but which is not so expensive as to prohibit legitimate applications. That means that the fees should reflect the cost of the work that the local authority undertakes but should not be unreasonable. Although charging the losing owner fees could act as a deterrent, it was recognised that those owners will make a realistic contribution to the cost of carrying out the works. The committee considered that that would be a deterrent in itself and that it would be disproportionate to impose an additional cost through fees.
The Scottish Conservatives welcome the bill at stage 1. In my closing remarks, I will cover the few areas that might need further consideration and clarification.
14:57
I have never personally been a victim of a high-hedges dispute as defined by the proposed legislation. However, I have enormous sympathy with the aim of tackling the issue and with those who find themselves on the wrong end of such situations because, for a number of years, I had to contend with a nearly high hedge that bounded part of my property. I say “nearly high hedge” because the offending structure reached a maximum height of 5ft and, much as it annoyed me, could not be described as forming a barrier to light. The issue was more that it was a thick hedge rather than a high hedge. It had been planted many years earlier by a previous neighbour inadvisably close to the boundary, which meant that getting in and out of vehicles that were parked in our driveway became a problem, owing to an at times 18-inch incursion on to our property.
In my case, a resolution was arrived at only with the sale of the neighbouring property and the arrival of a new owner, who helpfully hauled out the source of our irritation. Therefore, when I say that I welcome the bill, I really do welcome it, even if it will not necessarily assist someone who finds themselves in the same position as I did.
Some people outside the chamber might question our parliamentary priorities in introducing proposed legislation on the subject. However, I congratulate my colleague Mark McDonald on introducing the bill, because it gives deserved respect to people whose quality of life has been impacted on by the selfishness of others. That said, I support entirely the safeguard that is built into the bill that requires applicants for a high-hedge notice to have taken “all reasonable steps” to resolve the issue before they make an application to the local authority and that enables councils to reject applications if such steps have not been taken.
People who have never been involved in a high-hedge dispute might not understand how acrimonious such fall-outs can be and how entrenched the positions of the warring factions can become. In legislating on the matter, we must recognise that, whatever the initial rights and wrongs, the victim might ultimately have become almost as unreasonable in their behaviour as the high-hedge owner.
I accept the logic behind excluding single trees from the scope of the bill, as the bill is about high hedges and it is right that the views of the Scottish Wildlife Trust, the RSPB and the Woodland Trust should inform the direction that we take, because we must not act in a way that has the potential to compromise wildlife and biodiversity.
Any deliberations on whether it would be right to broaden the proposed definition of a high hedge should also be informed by the view of Eric Hamilton, who is a forestry officer with Dundee City Council. He stated that including
“any trees of any type ... would lead to tremendous problems.”—[Official Report, Local Government and Regeneration Committee, 12 December 2012; c 1522.]
All of that said, I welcome the consensus that has developed on having a mechanism in the bill for review within five years, so that we can determine whether, given the experience of application, we have in fact got the legislation right.
I note the prediction that more than 90 per cent of disputes will be settled without local authorities being actively involved, simply because the legislation exists. We may encounter far fewer cases of wide hedges also. It is a fact that many such situations do not have their roots in a deliberate act. People do not, by and large, plant bushes as close as they have done to boundaries or boundary fences in order to create a problem. Invariably, it is a thoughtless act that is based only on a desire to avoid a seeming waste of garden space at the time of planting. They will not have thought about 10 or 20 years hence, when that wee bush will have completely taken over a boundary, much to the upset of a neighbour.
Hopefully, the passing of the bill will bring into focus every aspect of hedge planting and maintenance and will even help to alleviate that wide hedge issue, which it is not designed to address. For those reasons and for all the other reasons that have been articulated in the debate, I encourage colleagues to agree to the general principles of the bill.
15:01
As a member of the Local Government and Regeneration Committee, I welcome the opportunity to scrutinise the Government’s proposals in the High Hedges (Scotland) Bill. It is clear that the bill aims to address what can often be a major source of anti-social behaviour in our communities and intends to provide individuals with a course of action to address the problem of overhanging or intrusive hedges on a neighbouring property.
It is an unfortunate reality that a dispute over an overgrown hedge can quickly escalate into an issue that impacts on families’ quality of life and encourages the breakdown of communities. As a result, it is in the interests of public authorities to have the power to intervene and to offer remedies in cases in which disputes between neighbours cannot be resolved through independent negotiation.
However, we must ensure that the provisions that are contained within the High Hedges (Scotland) Bill are fit for purpose and can deliver the outcomes that organisations such as Scothedge have been campaigning for. Scothedge has campaigned to raise awareness of the problems that are faced by victims of the nuisance of high hedges and has already identified a number of potential problems with the bill.
Principally, the exclusion of deciduous hedges and problematic single trees means that the bill could fail to tackle instances of neighbour disputes that are prevalent across Scotland. The current definition of
“a row of 2 or more evergreen or semi-evergreen trees or shrubs”
is clearly restrictive and will require amendment if it becomes clear that too many high-hedge disputes are not covered by that narrow description.
Further analysis of that provision is necessary; the Scottish Government can learn lessons from the Anti-social Behaviour Act 2003, which contains statutory authority on cases of high hedges and nuisance vegetation in England. The Scottish Government should reflect on the application of the 2003 act and perhaps seek to amend the bill provisions to make the legislation as effective and comprehensive as possible.
We must acknowledge that high hedges that result in neighbour disputes are a real and serious problem that too many Scottish families face. High hedges do not just act as a barrier to light; they can restrict views, lower property values, obstruct boiler flues and block television cables. It is right that the Scottish Government is taking positive action to tackle those problems, but in order to achieve that, the legislation must fully address the complex and difficult nature of the issue.
We know that a number of campaigners are already concerned that the definition of “high hedges” is too narrow and I anticipate the bill as it currently stands being satisfactory in only a proportion of problem cases, failing to improve the situation of many who are affected by these issues. I urge the Scottish Government to reflect on the speeches by members of Opposition parties in the chamber and to work towards a consensus that is in the best interests of families and individuals across Scotland.
15:05
For almost as long as I have been in the Parliament—bar a month or so—high hedges and how to cut them down to size has been an issue. I therefore welcome the movement through—my dreadful puns might well end here—a much-needed privet member’s bill. Privet is apparently not an offending hedging plant, but more of that later.
Of course, high hedges are no laughing matter. They have caused much distress and dispute between neighbours and have been a problem for many of our constituents over the years. I think that the first parliamentary question on the subject was from Maureen Macmillan in circa January 2000. In question S1W-03655, she asked when there would be a consultation on high hedges. I think that it was a planted question because almost immediately Jim Wallace answered that he was issuing a consultation. Twelve years later, after the petition and the bill proposal that Scott Barrie lodged, we are getting somewhere. Some of the hedges that might have been a problem then are certainly a bigger problem now.
It is unfortunate and a pity that no Liberal Democrat member is here to take part in what really is a cross-party debate.
Why the delay? In part, it was due to uncertainty about whether to seek a solution through planning law, abatement notices, the law of nuisance or the law of antisocial behaviour. There was also a problem with defining what is and is not a hedge, let alone whether the hedge had to be deciduous, coniferous or mixed. That is the perennial problem with legislation. We all know a hedge or indeed an elephant when we see one, but defining it is quite another matter.
The definition in the bill is about as good as it can get. To extend it to include individual trees would be to redefine the bill and make it a high trees and hedges bill. However, I note that the bill applies only to hedges formed of
“evergreen or semi-evergreen trees or shrubs”
with live foliage. I might have thought that it would include, for example, beech, which retains its foliage although it is not technically live, and the ubiquitous privet. The test is that the hedge interferes with “reasonable enjoyment”. I feel an amendment coming on.
While I am on the subject of amendments, I refer to section 34 of the bill, which is no small matter. To allow the definition of “high hedge” in the bill to be changed, extended or modified through subordinate legislation seems rather bizarre, because the whole purpose of having a definition in a bill is for it to be secure. If nobody else is going to dabble in that, I may well do it.
That said, I welcome the push for early resolution, which should be assisted by the threat of ultimate statutory intervention. I agree with the proposal to charge a fee for applications, which will certainly act as a deterrent to vexatious applications. On the other hand, where all reasonable steps have been taken pre-application by the party that ultimately secures resolution through enforcement, why should there not be a recovery of the fee from the offending neighbour? That might add complications, but I would like to see flexibility on recovery of the fee. There would be a further element of justice in that.
The issue of developers or indeed subsequent occupants seeking to have pre-existing hedges reduced or indeed removed altogether, particularly when it could be foreseen that they would increase over the year, should be dealt with at the application for planning stage. I note what the minister said about planning law.
That said, I commend Mark McDonald and all those who went before him—not least Scott Barrie—for pursuing the issue. However, most of all, I commend the campaigners—Scothedge and others—who have rightly been determined to find a remedy for this wrong.
I thank the evergreen Ms Grahame for that contribution.
15:09
I thank Mark McDonald for introducing his bill, and I thank the Local Government and Regeneration Committee for its work, as well as the campaigners such as Scothedge. The bill is one of those that cause people to think, “Is this frivolous?” In this case, it certainly is not. Believe it or not, the issue was one of the biggest problems that I had as a councillor—forget about the budget negotiations or anything like that. Representing a ward in Edinburgh that happened to be made up mostly of low-rise homes, I saw a lot of problems with high hedges.
I received a telephone call one day from an irate woman who said, “Councillor Keir! Get down here very quickly, please, or my husband might kill the next-door neighbour!” They were arguing over a high hedge—the lighting issues, the irritation, the antisocial behaviour and the whole shooting match that comes with neighbours’ disputes. By the time I got down to the place, the two men were literally fighting in the garden. It is no joke. This is a big issue for people in such areas.
We can blame all sorts of things—such as the planners who, in their wisdom, allow houses to be built extremely close together, and those who plant leylandii, which sprout up at a rate of knots and soon reach heights of 30ft, rather than the 6ft that the person was expecting—but the issue is important to people who live next to each other and end up in a dispute. I welcome this bill. If it clears its third stage, people who live in areas where a lot of houses are crammed together will heave a collective sigh of relief—as will their councillors.
The bill introduces a clear process for dealing with a dispute after the preamble, which involves neighbours talking to each other—something that Sarah Boyack talked about. These disputes can go on for a long time and the bill gives people a way of sorting them out.
Not a lot of people will want to go down this road. There are cost implications, and I am not sure how happy the councils will be to put extra officer time into the measures.
The evidence from down south is that, although many councils thought that they would have to appoint specific high-hedge officers, they discovered that the officers who were already in the local authorities could deal with the work and that there was no need to bring in additional resource. I hope that that gives the member some comfort.
I am glad about that and, if it is the case, I welcome it. Councils have knowledgeable professionals who deal with these matters and who might be able to help people who live in areas such as I have described to understand what sort of shrubs and plants should be planted.
I realise that I have run out of time, but I want to address one issue before I close. As Derek Mackay said, planners need to think carefully about the issue and plan areas sensibly. Hopefully, people will talk to each other and we will not need to use this legislation.
15:13
I congratulate Mark McDonald on his success in bringing the bill to the Parliament. As others have said, it has taken over a decade to get here. The issue has formed a great part of my caseload, as a councillor and as an MSP, as it has that of others. That is why I have followed those who have been involved in the issue over the years and have appreciated their professionalism. In that regard, I congratulate Scott Barrie on his part in getting us to this point.
I share the concerns about the definitions that Sarah Boyack and Kevin Stewart mentioned. I hope that those concerns are listened to and that attention is paid to the example of the Isle of Man and how it managed to deal with them. I also point out that Denmark, France and Bulgaria already have sound legislation in this regard.
I am pleased to hear what the minister says about planning, as that is at the heart of some of the issues that must be tackled.
Previously, there was no final-resort mechanism to secure fair and impartial exit from what are often interminable and stressful disputes. Colin Keir’s description of that was spot-on—I would disagree with very little of what he said.
We should not dismiss Fergus Ewing’s work, following petition PE984, by Dr Colin Watson, of Scothedge. When Fergus Ewing took the consultation forward, he did not change the name of the bill; rather, he talked about high hedges and other nuisance vegetation. Fergus Ewing is always a great man for compromise, so we should perhaps listen to his wisdom in that regard. Flattery will get you everywhere.
The consultation recognised that the problems faced by those affected were not restricted to evergreens blocking out light but, as demonstrated in PE984, could be diverse and produced by almost any inappropriate large plant.
I note that Mark McDonald agreed with Scothedge that a last-resort intervention would cause the unreasonable party to withdraw the vast majority of submissions for help. There would be no such incentive on those whose vegetation is deciduous and excluded from this narrow bill. Widening the scope appropriately would ensure that the capitulation effect would be extended to a greater number of cases without significant additional workload for local council staff.
We will all come back to the issue of definition. I look for a bit of clarity. At committee, the Labour Party supported the current definition. Has the position changed from what was agreed at committee and submitted in the report?
I refer to what Margaret Mitchell and Sarah Boyack said. Labour members wanted to explore the issue further. We should have regard to the fact that the SNP’s own minister recognised that point as well.
Making the bill more inclusive would send a general message that inconsiderate or vindictive deployment of all large plants is a risky and unacceptable activity. Throughout Scotland, every time that a law has appeared to be imminent, the spontaneous reaction to the anticipation of a penalty has been voluntary resolutions. I do not have time to go into the detail, but other members have given recent examples of capitulation in long-standing disputes.
There is surely no justification for exempting deciduous or single trees from the provisions of the bill, although the choice of the title, High Hedges (Scotland) Bill, may preclude the single tree option.
I hope that the bill gets a fair wind. There are many points that I would like to have raised. This work is vitally important. I agree with my colleague across the chamber who said that we should deal with this issue as a priority. It is right that it be a priority. It is so important to many families.
15:18
My congratulations to Mark McDonald on his progress on this issue so far.
Much of the detail of the bill and of the committee report has already been covered, so I will address one or two wider issues that relate to the subject, in which there may be a need for a change of behaviours consequent on the passage of the bill.
The bill is relatively simple and is informed by legislation elsewhere in these islands of which we are a part. The message from the evidence that the committee received from the Isle of Man is to keep it relatively simple and not to try to solve every possible issue that may arise with shading vegetation, because that is probably impossible. England’s example tells us that behaviours start to change relatively rapidly and that after a short settling-in period people stop creating monster hedges that cause disputes.
Does that mean that naturally—although not necessarily consciously—disputatious people will simply find something else to argue with their neighbours about? The jury does not seem to have much evidence to suggest that. There is certainly little evidence that the creation of a law such as this can make things worse by making new casus belli—new battle fronts on which antagonistic neighbours can engage. The evidence appears to lead in a different direction, towards a general lowering of the temperature of neighbour disputes.
So what more could be done to capitalise on the opportunity for reasonable debate on issues between neighbours? Firstly, perhaps planners and architects—whom Colin Keir referenced—should have in their approach to their job a greater emphasis on design choices that will reduce the potential for tensions. For example, they could include sightlines from windows and conservatories that make little impact on what others see as their privacy. Perhaps we could have fewer straight lines of houses and a little bit of a wiggle so that windows are less likely to look into other people’s properties. Perhaps there could be cleverer use of facing blank walls close to each other so that there is genuine space on the other side of the house plot. I am sure that there could be much more. The real point is that the professionals should be thinking about this.
Very few house purchases happen without a lawyer being party to them. Perhaps lawyers should consider advising their clients—a simple leaflet produced by the Scots Law Society might suffice—on behaviours that will avoid tensions with neighbours and could draw attention to the act. Indeed, in many housing developments, a simple inclusion in the title deeds to restrict some behaviour and define how boundaries may be delineated would be helpful in certain circumstances.
In some developments, conditions, called deeds of conditions, already are put in that prohibit certain fencing and barriers.
I am aware of that from personal experience, which is why I think that there is a case for looking at how we can use experiences here to help with the bill.
When council officials are in an area to deal with this kind of problem they could look for potential issues and then help.
Issues with the power to modify the meaning of “high hedge” through subordinate legislation could perhaps be resolved by picking up what is in the ancillary provision in the bill, which talks about making provisions “in consequence of” and relating to the act. If that was put into the section on the power to modify the meaning of “high hedge”, some of the concerns about the use of subordinate legislation would likely be addressed.
The issue appears to be largely urban and affects areas of greater rainfall, where things grow faster, but the regionality of the impact is not an excuse for inaction. I may be the only member who cannot recall ever having been approached on the issue, but in my constituency people have large plots in rural areas, which is quite different. However, from the evidence that I heard in committee, I absolutely recognise that this is precisely the kind of bill that we should progress, on precisely the kind of issue that a member should pursue.
I welcome Government support for the bill, I look forward to its passage and I am happy to support it.
15:23
I welcome the opportunity to debate the Local Government and Regeneration Committee stage 1 report on the High Hedges (Scotland) Bill. I, too, want to express my thanks to Mark McDonald MSP for bringing the bill to Parliament, and to the Scottish Government for its extensive work prior to the introduction of the bill, and for working with Mark McDonald to assist him in its introduction.
When I was elected in 2007, I knew that high hedges was an issue that had been around for some time and to which people had tried to bring some type of resolution through Parliament. Unfortunately, previous attempts to introduce legislation did not succeed, but I am thankful that we are here now and I hope that we can pass the bill.
The bill has not come about overnight and I welcome its introduction, but it will not, as currently drafted, with the narrow definition of a high hedge, solve every issue that confronts MSPs. I am sure that if the scope of the bill were to be extended to include deciduous trees and single trees, it would still not solve every issue. My task, as an MSP who has constituents who are dealing with issues relating to the aforementioned categories, is to ensure that legislation is workable, affordable, enforceable and easily understood.
As members will know, I was the sole committee member who dissented from the definition in the bill. The definition is narrow and focuses purely on high hedges. If the definition were to be altered to include other categories, it is reasonable to assume that the bill would have to be altered. However, it is possible that such an alteration would be too great and would thereby, as Christine Grahame said, render the bill a vastly different document from what has been introduced.
As we know, the bill, which follows on from the legislation that is in use in England, Wales and Northern Ireland, focuses on high hedges. As we have also heard, the Isle of Man’s Trees and High Hedges Act 2005 is different in that it encompasses trees in the title and throughout the act.
My reasoning in dissenting from the definition in the stage 1 report was simple. I could have accepted the narrow definition, while knowing that there would be some unsatisfied constituents of mine, and of all colleagues—apart from Stewart Stevenson—or I could look to work with Mark McDonald to amend the bill, where possible. I do not get the impression—certainly from discussions that I have had with MSPs outside the chamber and committee members—that there is an appetite to increase the scope of the bill. Although all bills are amended in some shape or form, I do not think that any proposals to amend the definition will progress through the committee, although that is entirely up to committee members to decide.
The bill can be used as a platform when reviewing the act in the future. I therefore thank Mark McDonald for accepting my amendment that called for a review of the legislation within five years of commencement of the system, which is something that the committee recommended, too. Sarah Boyack talked about the importance of the definition. That is why a review is important; having it written into the legislation will ensure that outstanding issues will not be forgotten and that the legislation can be refined and amended, as required. The review will also achieve something that all members know we do not always manage to achieve: post-legislative scrutiny. We are usually caught up in issues of the day and post-legislative scrutiny sometimes takes a back seat.
I am conscious of the time, Presiding Officer, so I will make one final point. I welcome COSLA’s desire to implement the bill, and I welcome its collaborative approach thus far, which I am sure will continue. I am sure that when the bill—in whatever shape or form it takes—is passed, local authorities will be able to manage the work well and work well with others. High hedges might be an area for a possible future shared service, once the initial excess of cases is dealt with by local authorities.
I welcome Mark McDonald’s bill and the assistance that the Government has provided on it. I look forward to further scrutiny of the bill at stage 2.
15:28
A few provisions in the bill are worthy of further consideration at stage 2. The first is accessibility. When Mark McDonald came to the Local Government and Regeneration Committee to answer questions, I raised the issue of escalating costs and the importance of robust legislation to ensure that the cost of high-hedge orders does not become so prohibitive that local authorities and applicants will not use them. Ensuring access to the orders in important, and I was encouraged that Mark McDonald stated that he would reflect on that at stage 2.
On the definition, as members in the debate have, the Local Government and Regeneration Committee has reservations about the section 34 provision that will give ministers the power to modify the definition of a high hedge. It is entirely appropriate that stage 2 will provide the opportunity to revisit that issue.
As stated earlier, the bill will create a system of last resort with the provision that all other reasonable options for dispute resolution must have been exhausted before an application is made. However, clarification at stage 2 of what constitutes “all reasonable steps” would be helpful and would strengthen the bill’s objective of discouraging trivial applications.
Constituents have expressed concern about the possibility of a local authority having to act as a judge in a case in which it is a party. In other words, there is a potential conflict of interest if a hedge that is subject to a high-hedge notice is on local authority-owned land. The issue was raised in committee and the expectation that councils will judge applications by objective standards seems to be bit weak. Notwithstanding that there is a right of appeal to the Scottish ministers on any decision of a local authority, and notwithstanding Mark McDonald’s comments today, consideration should be given at stage 2 to the possibility of issuing guidance to councils and ministers.
Tree preservation orders were considered at length. Their role in the bill is clear and appropriate, but questions were asked about how councils use and enforce them. I urge the Government to consider the matter in the future.
The need for collaborative working and forward planning in the context of new developments around existing trees, hedges and woodland was discussed in some depth. I am reassured by the minister’s confirmation that the issue will be reviewed in the context of the Scottish Government’s review of Scottish planning policy.
High hedges might not be the most exciting topic in politics, but that in no way diminishes the need for and importance of the bill. I welcome this debate on a bill that represents a major step forward in tackling the blight of nuisance high hedges.
15:32
The committee wanted to focus on the definition because once the bill has been passed and enacted it will be with us for quite a few years. We wanted to reflect on comments that we received after the draft bill was published, during the stage 1 committee discussions and after the committee’s report was published.
We have no revising chamber in the Scottish Parliament, so Stuart McMillan’s comments about the need for review are spot on; we will need to review the legislation. We need to set the parameters for review at the outset. It is about acknowledging that not everyone agrees on the definition. We need that discussion up front, so that we are clear that we are not just monitoring the legislation for the sake of it. Whatever the committee decides on the detail, which will be hugely significant for other members at stage 3, we want it to scope the issues that remain outstanding or that merit further consideration and monitoring. That is equally important for local authorities and for the Scottish Government, who will be key players in monitoring the legislation.
I was struck by the comments in the committee’s report in relation to what Mark McDonald said about potential changes to the legislation and the difficulty of giving a yes or no answer on the purpose of a statutory instrument. It is worth Parliament’s while to bottom out some of the issues in that regard, so that when we go back to our constituents and when Scothedge lobbies us again, we can give clear answers. We must ensure that the decision on the definition is taken in the light of not just the first recommendations that we received but what we heard during our subsequent consideration of them. Early consultation gives Parliament the capacity to do that, but the process at stages 2 and 3 is quite fast.
It is not that we supported the bill in committee and are now against it; it is about teasing out the issues.
Will the member give way?
Yes, I will take an intervention from the convener of the Local Government and Regeneration Committee.
I thank Ms Boyack. It is key that we get the bill absolutely right. When considering expanding the definition, members need to consider the evidence from the Isle of Man, which has gone a lot further in its approach and has come across a number of difficulties, not least of which is cost. We could get in a pickle if we overegged the pudding at the beginning. The review that the committee unanimously recommended is the right approach. Let us get the broad definition right to start with, and see what happens afterwards.
I thank Kevin Stewart for that lengthy intervention. I think that I understand his point. As he convenes the committee, he will know the range of different views. It is not that we are saying that he has not done his job; it is more that we want to test out the bill. The comments that Christine Grahame made on many members’ past experience show that this is the time to test it out. We do not get to play around with it at stage 3. Once the committee has basically given us the framework at stage 2, it is really unlikely that we will change things dramatically at stage 3. We all accept that.
I will reflect on the relationship between the bill, the tree preservation order regime and the planning process. Those issues are crucial, as well.
The introduction of the bill has been much driven by people’s right to privacy and to a living environment that they value. There are lessons in that for the planning of developments. It is necessary to think through what a development will look like in 20, 30 or 40 years. Most people do not think about that; they think about where the grass is and what kind of plants are there initially, but landscaping, trees and hedges are fundamental. I hope that the discussion that we are having can be fed back further up in the planning process, not only to planners but to developers, too. Those matters are crucial to our built environment. That point links to biodiversity. When a new development is created beside an existing woodland, the woodland provides a backdrop and quality to the housing, but it must be a compatible backdrop.
The bill highlights the need for a bit of joined-up thinking early doors when developments are being planned. The residents 30 or 40 years later are the ones who will live with those calculations and the decisions of the local authority planning committee, the planners or the developers. That is why the definition is important. What we put in the bill in a few weeks’ time will shape the debate for years to come. It has taken us so long to get to this stage that we must ensure that we test it out to the best of our ability at stage 2 so that, when we come to stage 3, the amendments that are lodged are easy to deal with and are not fundamental to the bill.
15:37
I thank Sarah Boyack for those helpful comments on the Labour Party’s position, because I was a bit unclear about where the party was going. It goes to show that the bill is a member’s bill and members within political parties can take different views. There is disagreement, diversity of opinion and dissent on how to take it forward—and that is just the Scottish National Party group. That shows that a listening group, a listening Government and a listening Parliament will help to shape the bill.
I know that the planning system has made it when it features in this debate and has its own television programme on a Thursday night, “The Planners”—reality TV for the planning system. I am waiting for the first single tree or high hedge to feature in that programme.
Is it on at 3 o’clock in the morning?
No, it is on in the evening.
High hedges are a significant issue. If Parliament was not legislating on them, people would rightly ask us why because, as I said, Scotland is the only part of the United Kingdom where there is no legislation covering the issue. Therefore, as many members have said, it is appropriate that we debate it and get the legislation right at the outset.
I will focus on the definition and the options that are open to Parliament. The Government has taken quite a relaxed view on that. We have given evidence and given our position but have said that we will listen to what Parliament thinks is the appropriate way forward.
The options that are now on the table, as has been outlined throughout the debate, include the review process—a sunset clause whereby we revisit the definition and other matters. If that option is chosen, I suggest and encourage our being as flexible as possible. The definition would be a question for Parliament to return to if the review process was chosen.
Another option is secondary legislation. Members might say that I would, as a Government minister, want the ability to amend the legislation. The reason why I think that that could be helpful is that it would give us the ability to change the definition in the light of circumstances.
However, it is for Parliament to choose which option it prefers: whether to expedite changes through secondary legislation or to prefer the review process, which could return us to primary legislation.
I am not trying to tease out just the process by which a review would be carried out. Mark McDonald said:
“The definition could be amended to include, for example, deciduous hedgerows as opposed to evergreens or semi-evergreens.”—[Official Report, Local Government and Regeneration Committee, 19 December 2012; c 1576.]
Other people have mentioned the inclusion of trees. Is not it important to narrow down why some things are being suggested for inclusion and why other things have been explicitly excluded? After doing that, we can get to the best process for amending the definition in the future.
That is a fair point. I am trying to tease out the amount of flexibility that Parliament wants to provide for reconsidering the position in the future, if it thinks that the current definition might require to be revisited.
My comment is on the same point. If we start with a definition that means that some people are committing an offence, for example, and we later extend that definition, we will say that people are committing an offence that did not exist previously under the same legislation. People must be secure in the knowledge that what the definition says is what it does, and that that will not change.
Circumstances might change in the light of how the act beds in, what the public make of it and how Parliament, the Government and local authorities respond. The debate is about the amount of flexibility that Parliament wants to provide.
The Government does not have a strong view on whether Parliament should choose the review process or secondary legislation. As I have said, we are flexible and open minded about that. However, we should look closely at the evidence that we have received about the definition that is in the bill and at what happens in England, in Northern Ireland—where the legislation is relatively new—and in the Isle of Man, which has been referred to. If we were to propose changing the definition substantially at this point, I would want to return to local government to consult it on the change, because local government will execute the provisions in practice and it is working on the assumption that the definition will be as outlined in the bill.
A number of other matters have been raised, including Government involvement in Scottish planning policy—that relates to the committee’s recommendation that we should consider the proximity of developments to woodlands—and having a central resource of expertise, which is a sensible suggestion that we are happy to explore with local authorities.
I am not quite sure how to encapsulate Stewart Stevenson’s
“little bit of a wiggle”
in the planning system, but we can certainly try to express that through our planning advice notes. Colin Keir helpfully suggested that the matter is not frivolous, but serious. Like many members, Anne McTaggart focused on how the definition might in the first instance get better behaviour from residents. Graeme Dey explained that his issue was not necessarily with height but with width, and the hope is that the bill will create the right attitude of being a reasonable and responsible neighbour.
We have not spent much time on focusing on appeals and how the directorate for planning and environmental appeals will take that forward—perhaps that will feature in the debates at stages 2 and 3. I am satisfied that the DPEA has the capacity to deal with appeals.
As for fees, the important point is that the provisions are not about income generation by local authorities but are about early resolution of such antisocial behaviour matters. A soft cap will be placed on fees, so local authorities will not be able to generate more income through the bill; the fees will relate to the cost of taking the necessary action.
Like every other member, I hope that we will, on a cross-party basis, continue to explore the bill, get the definition right and ensure that it has the impact that we all seek. The Government will continue to take a constructive and positive approach in the bill process.
15:43
The debate has been fairly constructive. I found myself cringing at the number of hedge puns that were made—who knew that we had so many comedians in the chamber?
We heard from Colin Keir and Helen Eadie that the issue was prevalent in their time as councillors. One of my motivations for pursuing the bill came from having been a councillor and having felt the frustration that there was no point of last resort for many such disputes.
Let us consider some of the issues that have been raised in the debate. The first one that we should spend some time on is the definition that is used in the bill. Some members asked why I did not widen the definition. Kevin Stewart and Stewart Stevenson helpfully referred to the experience in the Isle of Man. Its system is not entirely analogous to the one that I have proposed—the Isle of Man has pursued the issue in a different way—but we should look at the experience there. The assessments that are required for deciduous vegetation are often highly complex. The fact that a 12-month inspection process is necessary to establish the impact of a particular tree or group of trees must be built in as a cost factor. That could be recoverable by the local authority, so it could lead to the attachment of a substantial fee. My view is that we need to allow the legislation to bed in and to look at how the fee system works in practice before we can look at the possibility of widening the bill’s scope. I will come to that later in my speech.
I am grateful for Stuart McMillan’s having expressed his willingness to look at how a review mechanism could be incorporated in the bill. I think that that is entirely sensible for the reason that I have outlined. It is not just the definition that we would look to review. We have spent some time talking about the definition, but there are other aspects of the bill—for example, those to do with the fee system and the appeals process—that it would be worth looking at to ensure that they are working in the way that we envisaged.
I say to Christine Grahame that it is my understanding that privet would be captured by the bill, by virtue of its being evergreen or semi-evergreen, depending on where it is, but I am happy to look into that further on her behalf. Beech has characteristics that led me to feel that it should not be included in the scope of the bill, but I will be happy to reflect on that, to talk to her and perhaps to write to her after the debate to provide her with a little more detail.
In listening to some of Anne McTaggart’s and Helen Eadie’s comments, I was concerned that the position that Labour had taken in committee to back the proposed definition seemed to be changing substantially. I have outlined why I drafted the definition in the way that I did. I will listen to members’ points, but they must accept that a change to the definition will have a knock-on effect on other aspects of the bill. The definition cannot simply be viewed in isolation. The fee element—which I am about to come on to—is a big part of that.
I think that the comments by the members whom Mr McDonald mentioned reflected the fact that the committee said in its report that it was content with the definition “at this stage”. In other words, we left it open to look at the issue again at stage 2.
I take Margaret Mitchell’s point, but that leads me on to the issue of fees. The minister was quite right when he said that the mechanism for which the bill provides was not intended to be a revenue-raising mechanism for local authorities. Indeed, the evidence from south of the border is that it would be particularly foolish for any local authority to assume that it could use it as a revenue-raising mechanism, because the experience there has been that an initial flurry of inquiries leads to a much smaller number of formal applications, which, in turn, leads to an even smaller—a minuscule—number of occasions on which the local authority requires to take action.
I think that that bears out the comments by Colin Keir and Graeme Dey that the bill, simply through its existence as a piece of legislation, will regulate people’s behaviour. It will mean that, when an assessment is required and a remedial notice is served by an authority, people will take it seriously, will take the necessary action and will not seek to frustrate the process.
I have made it clear that I believe that it is for local authorities to determine what fees they will apply. The bill simply gives local authorities the ability to recover their costs. Some local authorities might choose not to do that; they might choose to structure their fees differently, depending on factors such as people’s incomes. That will be for local authorities to determine. In my time as a local councillor, if I had constituents beating down my door because they could not afford to access a particular council service, that would have led me to ask questions of the authority. There is that element, too. Council committees and councillors will ensure that any fee system that is put in place does not prohibit their constituents from accessing the process.
On the fee-transfer argument, I acknowledge the comments of Christine Grahame. Margaret Mitchell and her colleague Gavin Brown pursued the issue with me at the Local Government and Regeneration Committee and at the Finance Committee. We looked at the Northern Irish example, but it is still very much in its infancy and there are not a lot of data to establish whether the scheme has succeeded. I still retain a concern that with a fee-transfer mechanism we run the risk of adding to a dispute; for example, a neighbour would receive a remedial notice and comply in full with it, but would then be asked to pay a surcharge to cover the fee that their neighbour had paid. There is a potential risk of animosity being created in that circumstance. Again, though, I have said that I would look at the fee-transfer issue. If members want to lodge amendments in that regard, I will consider them. However, at the moment, I remain unconvinced about a fee-transfer system.
If someone was warned in a legal letter in that respect, they could be told that if they did not comply they might be liable for the fee costs. I think that that is another point that could be put in at the beginning. It would be like the sword of Damocles, in that people could be told not only that would they be charged for cutting down the hedge or reducing its height, but that they may be liable for the fee costs as well. I do not see why that would be a problem.
I will give you a little extra time, Mr McDonald, to compensate for the interventions that you have taken.
I am very grateful for that, Presiding Officer.
I take on board Christine Grahame’s point, but my earlier remarks in relation to how cases break down south of the border imply that local authorities never have to do that. We managed to find only one example of a local authority’s having to do the work and recover the costs. In Christine Grahame’s example, that would have kicked in a fee transfer.
On the subordinate legislation recommendations, I take on board the points that were made by Sarah Boyack, Christine Grahame and Stewart Stevenson, who made a helpful and constructive suggestion in his speech. I have said that I will take a further look at subordinate legislation, particularly in the light of the issue around a review clause, and I will consider how those two elements of the bill would interact with each other. I am happy to reflect on that.
Finally, a couple of myths need to be busted. There is no such thing, under the bill, as a too-tall hedge. Anybody who remarked that a hedge would be too tall to be tackled as a result of the bill has got the wrong end of the stick. There is a 2m trigger height, at which point any dispute can be considered, but I have made no stipulations beyond that. My colleague Bruce Crawford made a point in his earlier intervention about the notion that there is a provision down south that they can trim only to a certain height or that they cannot take action that might lead to the removal or destruction of the hedge. I want to leave it to the expertise of the professionals; if the only way to deal with an issue is to remove the hedge, It should be open to the individual tree officer to recommend that option in his assessment.
The debate has been constructive and I have much to reflect on for stage 2. I am sure that members will be more than happy to offer input to that process. I look forward to the continuing debate on the bill.