Not amended in the Standing Committee, considered.
New Clause 3
Adoption Of Provisions By Relevant Authorities
(1)The provisions of sections 1 to 23 only apply to the area of a relevant authority if the authority has so resolved.
If a relevant authority resolves to apply those sections to their area—
A notice published under subsection (2)(b) must—
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss the following amendments: No 88, in clause 15, line 6, leave out subsection (2).
No. 89, in line 9, leave out 'under section 18 or 20'.
No. 45, in page 14, line 25, leave out clause 20.
So that hon. Members can follow the argument, I should explain that "relevant authority" is defined in clause 1 as the local authority in whose area the land on which the high hedge stands is situated. The new clause would give discretion to local authorities to consider whether they wished to opt in to the regulatory regime set out in detail in the Bill. It is modelled on an important precedent in sections 2 to 9 of the Noise Act 1996, which deal with a nuisance issue.
I am following the hon. Gentleman's argument closely. Is it not the case that the problems to which noise regulations apply occur principally in urban areas? An advert in a newspaper in an urban area with a particular circulation might not work as well in rural areas such as mine, where high hedges often give rise to problems with near neighbours, sometimes with violent consequences. Such problems form a large part of my work load, and the idea of publishing in a newspaper might not apply so clearly to a rural area.
I do not agree. The provision in the 1996 Act applies to all areas. Complaints about noise are much more frequent than complaints about high hedges. Local authorities and their residents are much more concerned about noise. I do not know whether that is reflected in the hon. Gentleman's postbag, but my postbag contains many letters on noise. Much of last Friday's debate on fireworks centred around noise and the antisocial behaviour of people who use fireworks in a way not intended by the manufacturer. Unlike the hon. Gentleman, I think that the noise issue affects all local authority areas, as does the nuisance caused by high hedges. What could be more reasonable than having an active local debate, generated through the columns of local newspapers, involving councillors and council tax payers, on whether a local authority should opt into the Bill's provisions?
What is the hon. Gentleman's view if the offending landowner is the local authority? A local authority might not want to opt in to the provisions if action could be taken against it.
The hon. Gentleman makes a good point. We will have the opportunity to discuss local authorities as judges in their own cause. Without anticipating that amendment, however, I can say that the import of it is to ensure that if a person complains about a hedge situated on land over which the local authority has control, he or she would be able to ask the Local Government Association to request an alternative local authority to adjudicate on the matter so that we would not have the problem of local authorities being judges in their own cause.It would be reasonable for a local authority, when considering whether to apply the principles and regulatory regime of the Bill to its own circumstances, to take into account its own resources. Christchurch local authority is unable to afford to maintain the trees in its ownership as it would wish. It says that it can no longer afford to carry out the trimming work that is necessary. Last year, it could not even afford to water the plants that local residents had planted as part of the "Britain in Bloom" competition. If local authorities are under such extreme financial pressure, surely they should be given the responsibility, and the accountability that goes with it, to decide whether to opt in to an expensive regulatory regime. I can sum up my enthusiasm for the new clause as being in line with all those aficionados of the new localism, a cause with which I naturally empathise. It is only the most centralising dirigiste enthusiasts who would wish to oppose it. The new clause is born out of my concern about the new financial burdens that keep being placed on local authorities. My local authority recently said that it will inevitably have to increase council tax again next year because of additional burdens placed on it by the Government. If, instead of forcing local authorities to accept those burdens, we and the Government gave local authorities the discretion over whether to take on such burdens, it would make things much easier for the Government, who could say, "Well, your local authority has decided to take on these burdens and the costs will have to be borne locally." It would also be much easier for local people because they would be able to say, "Well, why can't we just get our local authority to carry out its existing responsibilities with proper regard for what is prudent and sensible?"
The hon. Gentleman talks eloquently about the concerns of local authorities. What discussion has he had with the LGA and his local authority?
I have had discussions with the LGA in the past about the issue of burdens. As a vice-president of the LGA, which I am proud to be, I am also very much aware of the concerns that it has expressed about, I think, this Bill—but if not this Bill, certainly about others—and the additional burdens that are imposed. The Government have accepted that as a result of the burdens principle, they should reimburse local authorities for the additional costs incurred because of new regulatory burdens that are placed on them. The problem, as I said on Second Reading and, I think, in the debate on the money resolution, is that the money that the Government say they will make available to discharge local authorities' financial burden is not distributed to authorities on a pro rata basis proportionate to their actual costs.
Is the hon. Gentleman suggesting that there are other financial burdens for local authorities that should be scrapped? For instance, should local authorities cease to adjudicate over tree preservation orders? Surely those are an expense, but that is an important duty. There is certainly a parallel between a local authority adjudicating over a tree preservation order and adjudicating on whether a hedge is, or is not, a nuisance.
The hon. Gentleman makes an important point. An amendment has been tabled on tree preservation orders, which we will have a chance to discuss later. The Bill as currently drafted—I am sure that the hon. Gentleman is on top of the detail—would give a local authority the power to intervene. If there was a complaint, and that complaint was decided in favour of the complainant, it would have the effect of totally overruling and superseding any tree preservation order that was already in existence.That concern has been expressed to me, because, as the hon. Gentleman says, local authorities are given responsibilities and powers in relation to tree preservation orders. The local authority, of course, is accountable to local people, and it initially decides which trees or groups of trees will be subject to tree preservation orders. As I understand it, the local authority has absolute discretion to change, draw up or otherwise alter a tree preservation order. In introducing the new clause, I am not suggesting that the powers and responsibilities that local authorities have in relation to tree preservation orders should in any way be circumscribed. Indeed, the new clause would enhance both the responsibility and the discretion of local authorities. Without the new clause, the financial and administrative burden of the legislation will fall on all local authorities disproportionately. Some of those with the greatest burdens will receive no help at all. The Government said in the regulatory impact assessment or the guidance that any shortfall would be made up out of general grant. The question arising from that, however, is whether that grant will be new money, which is most unlikely. Even if that were the case, will that money be such as to enable a local authority such as East Dorset district council, which does not receive formula funding grant, to be reimbursed for the costs imposed by the Bill? I have raised that issue on several occasions, and the Minister seems to answer that it will not. The people of East Dorset will therefore find themselves funding 100 per cent. of the burden themselves. How will such money made available by the Government reach a council that is protected by a floor against loss of grant, which would otherwise operate? The answer is that it would not. There are many councils in Dorset that currently receive more grant than they strictly should, and are protected by what is described as a floor against further loss of grant. If there is some notional increase in grant distributed to them as a result of the Government saying, "We will meet the additional costs of local authorities," it will go into the pot but it will not result in a local authority that is already on the floor receiving any more money. I use this argument on the basis that it is prudent in this world that, if once bitten, to be twice shy. That issue has arisen in the context of concessionary fares. The new burden under which every local authority shall provide free bus passes for half-price off-peak travel for the over-60s had a disproportionate impact in my constituency. Local authority areas in which the bus journeys are longer and therefore more expensive got no special treatment, local authorities with above average numbers of pensioners got no special treatment, local authorities not in receipt of revenue support grant got no special treatment, and local authorities losing grant under the Government's redistribution from south to north again got no special treatment.
I was beginning to fear that the hon. Gentleman had strayed on to the bus when we should really be sitting on the hedge. Has he studied clause 13(3) and (4), which explain that an authority's expenses would be recoverable? Is he saying that he feels that local authorities would not be able to recover such expenses, as envisaged in the Bill?
I am saying that because of what is in the regulatory impact assessment and the draft guidance produced by the Minister. I do not know whether the hon. Gentleman has had a chance to look at the draft guidance, but what that and the regulatory impact assessment make clear is that any shortfall will be funded out of general revenue support grant. As he knows, as he is probably more expert on this subject than anyone in the Chamber, revenue support grant is distributed according to a formula, so for a council such as East Dorset, which does not receive anything, being told that it will be reimbursed through a grant formula rather than through a specific grant is no consolation.I have tried to find a means of putting forward an amendment that would give the Government the power and the duty to reimburse the local authority for the actual costs incurred. Last week I tried to table such an amendment to the Fireworks Bill, but it was not found to be in order. It therefore occurred to me that one way of meeting the same problem would be to give local authorities the responsibility and power to opt out of the Bill if they wanted to do so. Under the Bill, as has been accepted in almost every contribution to the debates, some local authorities will receive many more complaints than others, either because they have more hedges or because they have more antisocial and antagonistic residents. Those authorities will not be able to recover all the fee income to meet their costs. In addition, they will have the burden of appeals. Residents of certain authorities are wrongly deemed to be able to pay because of the value of their houses. An enormous amount of anxiety exists among people, far greater than that about hedges, about how they will be able to pay their increased council tax bills this year. Only today, as some Members may have had a chance to see this morning, one of our great national newspapers, the Daily Express, in a leading article, headed, "Put a cap on unfair tax", states:
There is also an article on page 6 of the same newspaper headed, "Unfairest tax: War on the Middle Classes". My new clause is intended to mitigate the impact of further additions to that unfair tax flowing directly from the regulation in the Bill."Council tax, which has risen by more than 20 per cent. in some local authorities, has been dubbed Britain's unfairest tax after it was revealed that it is hitting the poor and middle classes much harder than the rich."
Did the hon. Gentleman attempt to table this amendment in Committee? In fact, was he a member of the Committee?
As the hon. Gentleman knows, the amendment was not debated in Committee, and I do not think that the Committee went on for much more than half an hour. I was appointed a member of the Committee, and when the date for the Committee had been set, I wrote to the promoter of the Bill to say that because of a long-standing speaking engagement, which was fixed last autumn, I was not able to attend on that day. I do not think that he referred to that at the time of the Committee sitting, but I am sure that he accepts that that was the reason why I could not be present.When I returned from that speaking engagement, I must admit that I was amazed to find that the Committee proceedings were all over. I had expected the Committee to meet on a second occasion to consider the Bill in the detail that had been anticipated when the matter was discussed on Second Reading. That did not, however, materialise. This issue goes to the heart of the matter, and it is also relevant in the context of a letter that I received from one of my constituents, part of which I shall share with the House. My constituent is a pensioner and she says:
She then goes on to discuss the Bill. She is concerned that she does not have enough money to have her hedge cut, because of the high council tax. The Bill's consequences, without the inclusion of the new clause, would be that her council tax would go up even more, ironically resulting in people being less able to pay for the pruning of their high hedges than they are at present. I am sure that is not what the Bill's promoter intends."We are too old to be able to cut the hedge back and we do not have the money, thanks to your increase in Council Tax, to pay someone to do it for us. So have a thought for your elderly constituents. I would have thought your best bet would be to bring in a law forbidding long builders lorries and rubbish to be parked in front gardens, lowering the tone in what was was once a very nice area to live in but is no more."
I am sympathetic to my hon. Friend's constituents' position, but does that justify those people casting into darkness and depriving of light people whose whole lives have been ruined and blighted by such hedges?
The two issues are not incompatible. My hon. Friend has followed the burden of my argument, which is that—as with the noise legislation—a local authority could decide, in response to pressure from my hon. Friend as a constituency Member or from other people, to incorporate within its standing orders the provisions of the regulatory regime to be set up under the Bill. That would then be the policy of the council. Alternatively, it could choose not to do that because of the costs that would be involved and the fact that it would have to increase the council tax. That might be counter-productive, as in the example that I have described.We know that this is not just an academic issue. I am sorry, but I do not recall whether my hon. Friend was involved in the proceedings on the Noise Act 1996 but, when it was considered in the House, the issue was how many local authorities would take up the option that it presented. In the end, not many did, because they realised that it would be quite expensive. If my hon. Friend believes, like me and our party, in localism and local responsibility, he will surely accept that we should be big enough in the House to give each local authority responsibility for deciding whether it wants to opt in in relation to this issue. The draft guidance to local authorities has been mentioned, and it was issued last week. It is made up of 220 paragraphs. Paragraph 2 states:
Why not let councils decide whether they wish to take this burden on? As I have already said, the issue was flagged up in earlier debates on the Bill and my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) also raised it at column 88 on 7 April when he spoke from the Opposition Front Bench on the money resolution."The Act does not specify which department within the council should carry out this function … such as planning or environmental health … It is for each council to decide which part of their organisation should be responsible for administering high hedge complaints."
I confess that I am puzzled. The hon. Gentleman has explained why he was unable to attend the Standing Committee, and I understand that. However, I do not understand why the Committee did not have the benefit of these 100 or so amendments. If this is such an important issue, will he explain why these points were not made in Committee?
I am not sure that I understand the hon. Lady's argument. I flagged up these issues on Second Reading, as did my hon. Friend the Member for Runnymede and Weybridge and several other hon. Members, including one from the Liberal Democrat Benches. We referred to the Bill's rough edges. My hon. Friend the Member for Mole Valley (Sir Paul Beresford), whose constituency covers part of the Guildford local authority area, covered these points on Second Reading. The Bill's promoter assured us that these issues would be addressed in Committee. They were not: the Committee sat at 2.30 pm on 7 May and by 3.9 pm had finished considering all the clauses without anything being said about funding. These issues were not discussed because no one on the Committee chose to discuss them. If the hon. Lady is suggesting that I should have broken a speaking engagement to which I had agreed in the autumn of last year, so that I could attend the first of what I expected to be several Committee sittings at a time and place about which I had not been consulted, I think she is being rather unreasonable.
I think I made it quite clear that I was not questioning the reason that the hon. Gentleman gave for not being able to attend the Committee. I merely said that 100 or so amendments have been tabled and that I do not understand why none of them were tabled before the Committee stage—if not by the hon. Gentleman then by members of his party.
Order. Such speculation is wholly outwith the scope of new clause 3. I urge the hon. Gentleman to stay within the bounds of the new clause.
I am grateful, Mr. Deputy Speaker. However, may I just put on the record that 34 of the amendments have been tabled by the hon. Member for Hendon (Mr. Dismore) who is a sponsor of the Bill? He has accepted that he is sponsoring a Bill that is imperfect in 34 respects by the time that it reaches Report. Why did he not do something about that in Committee or at an earlier stage when he must have been involved in the drafting? That is a rhetorical question, Mr. Deputy Speaker, but I hope that the hon. Lady will intervene on the hon. Gentleman when he, no doubt, joins this important debate.In the debate on the money resolution, my hon. Friend the Member for Runnymede and Weybridge said:
He then referred to what I had said on Second Reading. He was very much on to the point. In the same debate, he added:"What is certain is that there will be a cost to local authorities. As the Licensing Bill shows us, if local authorities are to be given new duties and responsibilities, they must have funding to ensure that they can discharge them properly. Will the Minister tell the House how the net costs to local authorities will be met, so as to ensure that the money actually reaches the authorities that are doing the work and dealing with the disputes?"
He went on to say:"The critical issues are whether the Government will provide adequate funding to local authorities and how the Government are going to distribute that funding between local authorities—in other words, whether the permissive power that the Bill's money clauses give the Secretary of State to expend moneys, where it creates additional burdens, will be translated into the real distribution of hard, as opposed to notional, cash sums to the local authorities."
Unfortunately, that did not happen."A number of issues remain unresolved. We look forward to debating and, I hope, resolving many of them in Committee."—[Official Report, 7 April 2003; Vol. 403, c. 90.]
The concerns were not confined to those being expressed by my hon. Friend the Member for Runnymede and Weybridge. Concerns were also flagged up by the hon. Member for Mansfield (Mr. Meale), the previous Minister responsible for this subject, who said:
"I am also worried that not enough regard is being paid to the amount of money that will have to be made available for local authorities to make a case for funds when they have many cases with which to deal. I represent an urban authority that does not have many cases, and they can be dealt with under the procedure. However, the cost to a local authority in a rural community could be enormous. I hope that my hon. Friend"—
he was referring to the promoter of the Bill—
"will consider including in one of the new standard spending assessments the ability for local authorities that have a definite case to bid for funds. Money has been tweaked in the SSA to help local authorities to bid for extra money to deal with the problem of large areas of floodplains that have been built on so that they can do the work before disaster occurs."—[Official Report,7 April 2003; Vol. 403, c. 91.]
I support the overall aims of the Bill, and the terror that this problem can bring to people's lives has been explained in the previous debate. My hon. Friend is making a point that is causing me concern, however. As a former local government Minister, he will have had many representations about the support that local authorities are given. This year, Derbyshire Dales district council was given only an extra £32,000, when every other council in Derbyshire was given more than £500,000 in extra rate support grant. I am very concerned about that, and I hope that the Minister will be able to reassure the House on this matter.
My hon. Friend makes a point with which almost every hon. Member is familiar. He has made it repeatedly, yet the Government have never come back with a satisfactory response as to why they are discriminating against that council in this way. Like my hon. Friend, I support some of the principles of the Bill. That is why I supported it on Second Reading. As the hon. Member for Ealing, North (Mr. Pound) knows, I expressed reservations at that time, but I took at face value his expression of a desire to improve the Bill and his willingness to listen to representations and to act upon them. I had hoped that when the Bill came back on Report, it would have been a better Bill. In particular, I had hoped that the issue of how the additional costs were to be funded by hard-pressed local authorities would have been dealt with satisfactorily by the Minister. I know that we now have a new Minister responsible for these issues, and I hope that she will be able to get her substantial intellect around the problem and deliver a solution for us.During the debate on the money resolution, I put forward what I described as a constructive suggestion, saying:
The Minister then said:"I hope that the Minister can respond constructively to those concerns so that the mood on the Standing Committee will be positive. He said that he does not necessarily believe in consensus, but if the Bill is to have the support of local authorities, the Government have to spell out clearly the basis on which the reimbursement of costs will be made."
He went on:"Many of the issues that hon. Members have raised are worthy of further exploration in Committee. Based on the evidence, we believe that the statements in the regulatory impact assessment on costs to local authorities and appeal authorities, and the assumptions in the assessment on the cost of subsequent appeals, are correct."
On the basis of that statement by the Minister, I had hoped—and, indeed, expected—that the Bill would by now have been amended to reflect those concerns. As we know, however, that did not happen in Committee. So we are left with the fall-back position in paragraph 25 of the full regulatory impact assessment, which states:"Any shortfall in our calculations will be covered by the Office of the Deputy Prime Minister under the new burdens principle and through a system that has yet to be determined but which will embrace both elements of the financial regime for local authorities. I take the point about the difference in the impact on rural and urban authorities, or on urban and suburban authorities. That difference will have to be reflected in any assumptions that are made in the financial regime."—[Official Report, 7 April 2003; Vol. 403, c. 93–95.]
As I have already made clear, that is not good enough. That is a good reason why local authorities should be given the power to opt out if they so wish. Amendments Nos. 88 and 89 cover the parliamentary scrutiny regime that should apply to regulations prescribing local authority fees and other regulatory powers under the Bill. Amendment No. 88 would leave out clause 15(2) and amendment No. 89 would amend line 9 of that clause, removing the words"Local authorities will be able to charge complainants a fee for determining these complaints, the level of which will be set in regulations. If this does not reflect the full economic cost to authorities of administering the system, resources will be transferred into the revenue support grant settlement to cover the shortfall."
Effectively, that would require that the regulations be subject to the affirmative resolution procedure. I think and hope that the House accepts the fact that there is a strong case for that, particularly in the light of the concerns expressed by me and others on the funding of the Bill. The regulations would extend not only to the powers under clause 4 but to the appeals procedure. Clause 8(2) sets out an extensive range of regulations that may be made by the appeal authority, which is either the Secretary of State or the National Assembly for Wales. Those two amendments are nothing like as important as amendment No. 45, which would leave out clause 20. I regard it as highly significant, and I hope that the promoter accepts it, as that would allay many concerns. What would clause 20 do? Paragraph 34 of the explanatory notes says:"under section 18 or 20".
I ask the House to note the emphasis on extending the Bill's ambit by regulations that cannot be amended. That, effectively, is what we are being asked to sign up to under clause 20. The definition of "high hedge" could be changed by clause 20 to cover deciduous as well as evergreen trees and single trees of any type. It could also extend the scope of complaints under clause 1 in respect of the range of those who can complain and the matters about which they can make a complaint. Is it any wonder that the clause has set the alarm bells ringing? My hon. Friend the Member for Runnymede and Weybridge, speaking from the Front Bench in the money resolution debate, said that clause 20"Clause 20 gives the Secretary of State and the National Assembly for Wales power to extend the scope of complaints covered by the Bill (under clause 1) and to alter the definition of "high hedge' (in clause 2) through regulations. This is necessary in case experience shows that the Bill does not cover particular problems with high hedges."
He added:"could have a significant impact on the cost of the Bill".
I share his concerns, and I hope that my hon. Friend the Member for Cotswold (Mr. Clifton-Brown), who sits on our Front Bench, shares them as well. In response to those concerns, the Minister said:"I am alarmed that the kernel of the Bill—the definition of a high hedge—could be changed subsequently by secondary legislation."
Having regard to the history of the matter, it will not surprise you to know, Mr. Deputy Speaker, that they were not. All that happened is that in the 39-minute Committee proceedings, the hon. Member for Ealing, North admitted that clause 20"I will not be tempted down the route of a debate on clause 20 on definition and scope. Those issues can and should be investigated further in Committee."—[Official Report, 7 April 2003; Vol. 403, c. 87–95.]
The hon. Member for Colchester (Bob Russell) made clear his impatience, as he wants the Bill to extend to single trees."would allow us, for instance, to include deciduous or individual trees at a later date."—[Official Report, Standing Committee F, 7 May 2003; c. 5.]
I apologise for interrupting the hon. Gentleman in mid-flow, but may I make an addendum to that remark? Any such amendment would have to be subject to affirmative resolution of both Houses of Parliament. It could not just happen at the flick of a switch or the snap of a finger.
I accept that point, but is it good enough that legislation can be introduced to define a hedge as any single tree, or any deciduous plant or tree, through a resolution that may be passed after a 90-minute debate in the House and which cannot be amended? That is totally unacceptable. Such a change would transform the Bill's aspect and the mischief that it is designed to address. I cannot understand why the hon. Member for Ealing, North is insisting on keeping clause 20 in the Bill. I had hoped that he would respond to the concerns expressed about that wide-ranging definition.I do not need to go into further detail about every type of tree that could be the subject of a change to the definition. Every morning, as we come into the car park in New Palace Yard, we see an excellent pleached lime hedge, which is more than 6 ft high. Under the powers in clause 20, an order could be made requiring that hedge to be chopped down to 6 ft.
Does the hon. Gentleman agree that there would first have to be a complainant? A neighbour would have to complain about the hedge or a single tree. If such an order were approved by the local authority, an aggrieved person would have an appeal mechanism. The position is not quite as clear cut as he suggests.
I agree that that procedure would be available. Inherent in what the hon. Gentleman says is that every person who has a single tree in his garden in an urban, semi-urban or even rural environment could be subject to an order if his neighbour changed and disliked that tree because it was blocking his view, causing loss of light or was overhanging his own garden. Some people prefer a desert landscape or a concrete jungle: this is a subjective matter. The hassle involved for the landowner or occupier and for the local authority in fielding and responding to complaints and dealing with the appeals that flow from them is a prodigious burden.
Had we planted a hedge at the beginning of the hon. Gentleman's speech, we would probably not now be able to see him from this side of the Chamber. There is a third Bill on the Order Paper today that concerns his constituents and those of other hon. Members. It is the Pensions (Winding-up) Bill, and we want to know where the Government stand on it. Will he bear that in mind in contributing to the debate on this Bill?
The right hon. Gentleman makes an extremely important point. Like me, he will know that this Bill could have been put first on the Order Paper for 4 July. Given its complexity and contentiousness, why did the promoter not put it on the Order Paper for 4 July? The right hon. Gentleman may share my suspicions and scepticism, but I suspect that the hon. Member for Ealing, North was told to put it on second today, because it was thought that that would preclude or minimise the House's opportunity to discuss the important issues that are raised in the Pensions (Winding-up) Bill, which is promoted by the right hon. Gentleman. He knows as well as I do that, as a matter of procedure, if a Bill has been through Committee its promoter has the right to insert it in front of one that is already on the Order Paper.Intially, I could not understand why the promoter of this Bill would choose to put it second for Report stage rather than first, as he could have done on 4 July. It then occurred to me that there was some monkey business, which is now becoming apparent. We were given warning of that by the large number of amendments tabled by a sponsor of this Bill, the hon. Member for Hendon. I do not know whether we will reach the Pensions (Winding-up) Bill. I hope that the substantive issues it contains will he debated. I regret the fact that the previous Bill on pensions was—
Order. I think that we should try to keep the monkeys out of this and return to the new clause.
I am grateful to you, Mr. Deputy Speaker. The point has been made, and it is a very important one too.
In conclusion, if clause 20 is not removed, the Bill could have a more dramatic impact on the English landscape than the combined effects of the great storm, Dutch elm disease and the Luftwaffe's bombing. No tree, bush or shrub—whether single or in a group, or in a city, town, suburb or the countryside—will be safe from being cut down to size—2 m—on the complaint of any individual attracted to a desert or concrete landscape. It would be a veritable end to Britain's green and pleasant land, produced by regulations that could not be amended. That is why I hope that the promoter will accept the new clause.
I deeply regret the coda to the contribution made by the hon. Member for Christchurch (Mr. Chope). As one who has been proud to serve in Her Majesty's armed forces, I think that any association, by any hon. Member, with the depredations of a foreign power is unacceptable, and I am sure that, on reflection, he will think and realise that his comments were slightly hyperbolic and to be regretted. However, I wish to put that aside and to refer specifically to this small group of amendments.I have been assured by hon. Members on both sides of the House that, just as the nation wants this legislation, just as the 10,000 victims want this legislation, just as the 4,000 members of Hedgeline want this legislation and just as the 1,000 people who have written to me—I have the letters here—want this legislation, the House supports it. I have to say, to use an expression of which the shadow Leader of the House would recognise the provenance, it seems as though some people are supporting the Bill as the rope supports the hanging man. I prefer to be charitable and to view the new clause and amendments as an honest and conscientious attempt to make a better Bill. This is fifth occasion that the Bill has come before the House, so this is probably the most scrutinised legislation in parliamentary history. I could speak for long, but out of respect for my right hon. Friend the Member for Birkenhead (Mr. Field), I will try to be as brief and concise as possible, even though it goes against my every instinct. New clause 3 is an opt-out clause, under which the Bill would apply only to those areas that local authorities chose. If the issue that we are addressing today were a local problem in one or two areas, that would be entirely appropriate—no one would have any problem with it—but this is a national problem. The Bill would not even apply to Northern Ireland, yet I have had scores of letters from people there who want this legislation. I have received letters, cards, e-mails—I have a box of them with me—and visits, even from people in Highcliffe in the constituency of the hon. Member for Christchurch. I have received any number of letters. We cannot simply say that this is a matter of permissive legislation that local authorities may or may not adopt. I remind the House that the extensive consultation with the Local Government Association has at no stage thrown up any wish from local authorities to have an opt-out option. The right hon. Member for Suffolk, Coastal (Mr. Gummer), whose name appears on some of the amendments today, introduced the Noise Act 1996, but it did not work and had to be amended by antisocial behaviour legislation. The deletion of the requirement to adopt the 1996 promissory aspect has had to be addressed because it simply did not work. The point that I am making is that councils throughout the land are dealing with this issue at the moment with one hand tied behind their backs. They need to have the power; it is not a pick-and-mix option. No part of what the hon. Member for Christchurch grandiosely described as this green and pleasant land is not suffering from the problem. We cannot simply pepper the power around the nation. I would strongly resist any move to adopt new clause 3, and I am sorry to have to say that, because the Bill has been discussed at so many levels that we have pared it down so that it is at its most workable and least confused. As the hon. Member for Christchurch said, amendment No. 45 would remove the power in clause 20 to extend the scope of complaints. I repeat the point that I made in an intervention. Clause 20 is absolutely crucial in order for a quick response to be made. It is in the interests of moving out of the straitjacket of legislation, accepting that we may have to consider other things in future. Subject to the affirmative resolution of both Houses, the provision could be extended. Things change. We cannot legislate for ever, much as we wish we could. Surely it is in keeping with the generosity of spirit and the emotions of new localism that the hon. Gentleman spoke about to allow some scope for change, if it is needed. I assure the House that we would not have someone writing the measure on the back of an envelope and saying, "The Act has now changed." The regulations would be discussed at length in both Houses. That is a recognition of the sensitivities concerned. The issue of finance has been addressed before and will be addressed again, but briefly the revenue support grant settlement as delineated in the money resolution debated in the House on 7 April clearly identifies new money to meet the costs. I repeat that local authorities are at this moment having to devote officer time to resolving a problem, when they do not have the legislation to deal with it finally, or the funding and resources to pay for those officers. Those officers are having to address a problem that they can do nothing about. Ultimately, the measure will be self-funding—there will be a charge. We know that. In accordance with the money resolution, additional money will be made available if needed. That is not a problem. Like every hon. Member, I weep for Derbyshire and the revenue support grant settlement for the district council in the constituency of the hon. Member for West Derbyshire (Mr. McLoughlin)—but that is not the point. That is a subject for another debate. Today, we are not loading new duties on local government without giving them the means, mechanism and finance to perform them. In fact, we will be saving local authorities money, because can there be anything more frustrating than having to devote hours and hours of officer time to a problem that has no solution? I reluctantly request that the hon. Member for Christchurch reconsiders his amendments. I know that my hon. Friend the Minister will speak to amendments Nos. 88 and 89. With great respect, I ask the hon. Gentleman to reconsider new clause 3, as I do not think that it is in the spirit of the Bill. Equally, I do not think that amendment No. 45 is necessary.
I respect what the hon. Member for Ealing, North (Mr. Pound) is trying to do and he will be relieved to hear that my remarks will be fairly brief, but I want to make one simple point. We may have similar views on many matters but we represent very different constituencies. I am prepared to accept—I am not going to second-guess him—that high hedges are a major problem in the London borough of Ealing, but he should know that I represent a constituency that is 600 square miles. That is about the same size as Greater London. There are about 72 parliamentary constituencies in Greater London. I have one of the smaller electorates in the country. I probably have, let us say, 30,000 council tax payers spread over 600 square miles.I accept that, in urban areas—it can be sorted out by the local authorities, which know best—there are some extremely careless, unpleasant or perhaps poor people who allow Leylandii to grow around small suburban or urban gardens, which cuts out the light of their neighbours and causes them enormous distress. I personally believe that we need some enabling legislation to help local authorities to deal with that. In total, there may be a large number of disputes—perhaps 10,000 around the country—but compared with the total number of properties in the country that is relatively small. I am still happy, if we want to make progress today in terms of compromise and accepting amendments, to have a Bill that addressed that problem and allowed local authorities, if they so wished, to deal with the very small number of people who allow Leylandii to grow to 30, 40 or 50 ft, which is absurd. Let me describe why this provision is important, and why local authorities are best equipped to decide whether they want to get involved in this process. As I have said, my constituency is very different from certain others. I took care to go to the Lincolnshire show, which was held yesterday and was attended by 30,000 mainly rural people. I did a bit of vox pop and asked some local councillors and people whom I happened to meet about the Bill. When I described some of the clauses and what it tries to achieve, everybody whom I talked to was horrified. There are thousands of miles of hedges in my constituency. The hon. Member for Ealing, North may find this difficult to understand, but in the lane outside my house—along which perhaps one car or tractor an hour passes—there are hedges not just 2 m high, but 3 m or even 4 m high. They have been left there by the farmer for environmental reasons. I realise that the hon. Gentleman wants to restrict the provision to evergreen shrubs, but I can assure him that because of the amount of planting going on and the growth of hedges, we are talking about a completely different environment in the country. It is a great pity, therefore, that we could not reach a compromise on this issue, whereby local authorities have some ability to decide what to do to solve the problem. After all, they know best what is going on in their area. As I said, my constituency is very different; it is completely rural, with hundreds of miles of hedges. I would venture to suggest that this is much less of a problem in a district such as West Lindsey, in Lincolnshire, than in the London borough of Ealing, even in the villages and suburban areas. In 20 years as a Member of this House, I have had to deal with just one bad problem—when I visited a suburban location in which somebody had grown a hedge. I can recollect receiving no more than one or two letters on this subject in that time.
Does the hon. Gentleman—I speak as somebody who has the largest constituency in mainland Britain, which includes some 92,000 constituents, rural and urban—accept that this is a problem in both an urban and a rural setting? My constituency has three local authorities—a borough council, a district council and a county council—and many parish councils. I have received letters from all parts of that constituency. People recognise that visits to the garden centre are not necessarily decided on the basis of one's postcode. People buy these offensive plants irrespective of where they live, and the plants cause nuisance to their neighbours, irrespective of where they live. Life cannot be easily divided up into rural and urban; this problem affects people throughout the land, irrespective of the nature of the constituency in which they live.
That is a perfectly fair point. I do not want to take an absolutist point of view. Someone who lives near me in the middle of completely rural location has grown huge evergreen cedars—I do not know why—all around his house. That upsets nobody because all that surrounds his house is fields. Of course, such trees could cause a problem in rural areas in certain circumstances. That is why it is best for local authorities, which know the areas concerned best, to make a considered judgment as to whether there is a problem. I accept that many local authorities cover a mixed area, rural and suburban; it is for them to take that decision.
Does the hon. Gentleman agree, however, that if no neighbour is complaining about the high trees around the house of the constituent to whom he has just referred, there is no problem? The Bill does not in any way attack the hedgerows of our wonderful countryside; in fact, many of us would like more hedgerows. The hon. Gentleman should address the point: we are talking about inappropriate trees and hedges in inappropriate locations.
As I said, I am not taking an absolutist view—I am simply trying to explain the differences. [Interruption.] I note that the hon. Member for Ealing, North, the Bill's promoter, has returned; unfortunately, through no fault of his own he had to leave the Chamber for a moment. I said a few moments ago that I am genuinely trying to seek a compromise. I accept that safeguards are already built into the Bill, but they do not go far enough. I would refer the hon. Member for Colchester (Bob Russell) to a local authority such as my own. It is starved of resources—whichever party is in power—and is trying to make provision for more and more services laid on it by the Government. It has to deliver those services over an area of 600 square miles with only 30,000 council tax payers. Now we are talking about placing yet another duty on such authorities.
Frankly, 2 m is far too low. In my constituency, it is nothing. It is just a tiny shrub of a hedge. Even in the suburban areas where the gardens are much bigger, hedges regularly grow way above 2 m. If the Bill's sponsor were prepared to accept my amendment, which would increase the height to 4 m; if local authorities could have some input; if we could restrict the measures to conifers, I would happily pass the Bill. The hon. Member for Ealing, North is the Bill's sponsor and he can do what he likes, but if he is unprepared to compromise, I tell him that the Bill will cause problems for relatively cash-strapped rural authorities such as my own. People will make use of the Bill when it becomes law and extra burdens will be placed on my local authority. What will happen then?
We are told in the regulatory impact assessment that local authorities will incur costs for determining complaints and enforcing remedial action. It says that responses to consultation suggested that officers' time would cost an average £35 to £40 per hour, and that it would take around eight hours to investigate a complaint and decide whether to require the owner to carry out remedial works. I am prepared to accept that that may cause no problem in a London borough such as Ealing. Such authorities are much larger and much richer in their rate support base. I have no doubt that the London borough of Ealing could take it all in its stride.
By contrast, when I checked last week, I found that over the whole 600 square miles of West Lindsey, the authority was so strapped for cash that at one stage it did not have even one planning enforcement officer—not one for all of 600 square miles. Let us forget about hedges for a moment. People could be building extensions without permission, flouting existing planning law, yet not a single officer was employed by the local authority to deal with the problem. The regulatory impact assessment says that it will cost only about £35 or £40 an hour, but in some wards in my constituency, the average wage is as low as £10,000 to £12,000 a year. It is a highly rural area with people living on low wages, with a cash-strapped local authority unable to employ—for a time at least—a single planning enforcement officer, and now even more duties are going to be laid on the local authority.
Let me tell the hon. Member for Ealing, North that this is not a wrecking or unreasonable amendment: it is all about town and country. I accept what the hon. Gentleman says about the problem of restricting the Bill to certain areas in the country. I accept that in an area such as my own, there may be isolated cases of gardens being much bigger than in London, even in suburban areas, but why not let the local authority decide?
It is estimated that the average cost will be about £280 to £320 per case. That is nothing for London boroughs, but a much greater burden on authorities such as West Lindsey. The regulatory impact assessment states that the consultation respondents agreed that there was backlog of existing problem cases to be dealt with in the short term and that no one could improve on the
estimate that 10,000 such cases would remain to be determined. Fair enough. That just shows that we need some sort of legislation.
I support that view. There could be 10,000 cases of the worst kind in the country as a whole. There are about 400 local authorities in the country. Plucking a figure out of the sky, there could be 10, 20 or 30 bad cases in my local district. The local authority might be able to cope with it: I do not know, but we should let it decide. Do we not all believe in local democracy? I do not understand why, if the hon. Member for Ealing, North believes that there is a problem in Lincolnshire, he cannot allow Lincolnshire local authorities the chance to determine what they want to do about it.
The regulatory impact assessment also states that local authorities will also be involved in appeals against their decisions, submitting statements and commenting on representations from the parties. I do not know how many people are employed in a London borough such as Ealing—many hundreds, I suspect. How many are employed in a small district authority? Perhaps 100 in total, but they have to determine all the huge paraphernalia of existing Government laws, regulations and so forth. The regulatory impact assessment says that staff will largely draw on existing material and that they will spend no more than three to four hours on each case. Based on an estimated appeal rate of 2,000 cases every three years, that suggests total costs ranging from £210,000 to £320,000. It also says that local authorities will be able to charge complainants a fee for determining these complaints. That is fair enough, and such burdens can be easily borne by urban and London borough authorities, but it is a different story for rural local authorities.
If a hedge owner does not comply with a local authority's orders, we are told in the regulatory impact assessment that the authority will be able to enforce remedial action by prosecuting the hedge owner. Again, that will be no problem in London boroughs, but I do not know how we will cope with it in West Lindsey, which recently did not have a single enforcement officer. It also says that any unpaid expenses arising from the local authority using its default powers to carry out the work it specified in the remedial notice will be registered as a local land charge.
I have made my point, and I hope that the hon. Member for Ealing, North will be able to accept it in a spirit of compromise. I dearly wish that we could amend the Bill today so that we can attack those awful people who allow their trees to grow to such a height and who do not care about others. However, I know one person in a neighbouring constituency who has a problem with leylandii at the bottom of his garden, but he cannot afford to cut them down. He is not a nasty person and he does not want to cut off anybody's light, but he simply cannot afford to cut the trees down. That is often a problem in rural or semi-rural areas. People are not being unreasonable: they cannot afford to take remedial action. The local authority could take a balanced view and decide to opt in or opt out. I hope that in a spirit of
compromise the Bill's promoter will feel able to accept the new clause. or at least some of the other amendments that we will consider today.
The Opposition recognise that high hedges can be a significant problem. We already know that some 10,000 complaints have been made and need to be dealt with. Therefore, in principle, we welcome some form of legislation on the subject. As the hon. Member for Ealing, North (Mr. Pound) has already said, this is one of the most scrutinised Bills in parliamentary history. Its origins go back to even before my hon. Friend the Member for Solihull (Mr. Taylor) introduced his Bill on the issue, on which this Bill is largely based, when the hon. Member for Coventry, South (Mr. Cunningham) introduced a similar Bill.In principle, we want to see the Bill on the statute book, but we hope for some signs of flexibility from the promoter of the Bill. Nobody would want the Bill to be so all-encompassing as to catch individual trees. If the Bill remains as drafted, it would be relatively easy to introduce a statutory instrument under it, but that is an inflexible procedure. Statutory instruments are debated for one and a half hours, after which they are either accepted or not, and they cannot be amended. I would therefore be very wary of accepting a Bill that could lead to catching an individual tree, especially a deciduous tree. That would be unfortunate. I hope that the Bill makes progress this morning. I hope that the promoter will be flexible, especially on the amendments about evergreens, to which I have appended my name. We will certainly need good will on both sides of the House—I note that the hon. Member for Hendon (Mr. Dismore), who is a sponsor of the Bill, has tabled many amendments—if the Bill is to make progress in the next couple of hours.
As a new arrival at the Office of the Deputy Prime Minister, I welcome the opportunity to support the Bill promoted by my hon. Friend the Member for Ealing, North (Mr. Pound), and to take the opportunity to address some of the important points raised in the debate.On new clause 3, I say to the hon. Member for Gainsborough (Mr. Leigh) that I do not see why one area of the country would be immune from the problem of high hedges. I recognise his points about differences in certain areas, but every kind of authority will contain people with neighbours who have hedges. Hedges as glorious as those he described would not restrict people's reasonable enjoyment of their property and gardens, and would not be covered by the Bill. On funding, the Government will bear the cost of additional burdens not covered by fees through the general grant.
The Under-Secretary is trying to be reasonable, and I am trying to give her a flavour of what could happen in rural villages. As I have said, 2 m, or 6 ft, around a house in a rural village is nothing. There may be hundreds of miles of hedges of over 6 ft around houses in such villages. The local authority will have no choice as to whether it is dragged into the process, because difficult people will start to complain about their neighbours' hedges. Frankly, we should not be addressing that; we should be addressing people who are growing leylandii of up to 60 ft in urban locations. We should have a narrow Bill to deal with that.
The hon. Gentleman is aware that the nature of the problem depends on the environment and the circumstances. It is not simply a question of the height of the hedge, but about whether it is a barrier to light or access and whether it affects the reasonable enjoyment of the property. I agree that it would be inappropriate to have a completely open-ended measure, but the Bill has appropriate safeguards.I can tell the hon. Member for Christchurch (Mr. Chope) that the money will be paid through the general grant; all county, district, metropolitan and unitary authorities receive the general grant. Changes have been made to the revenue support grant that may address and make outdated some of his concerns.
I realise that this is a new brief for the Under-Secretary, but is she saying that the actual expenditure incurred by any local authority in pursuance of the Bill would be met by the Government on an indemnity basis, or would there be a general distribution of grant, as with concessionary fares?
We would need to follow the established procedures for assessing the financial burdens imposed on local authorities by new initiatives, as we do in a number of different areas.Amendments Nos. 88 and 89 would turn regulations on maximum fees and appeals procedures from the negative to the affirmative procedure. I assure the House that the negative procedure is standard for such measures, whether they are planning or tree preservation appeals, and the procedure provides safeguards. On amendment No. 45, which would delete clause 20, I understand the legitimate concern to ensure that there is proper parliamentary scrutiny of changes. I can assure hon. Members that the Government have no intention of using the clause at this stage and we do not see evidence that there will be a need to extend the Bill. It is appropriate to respond to the concerns that have been raised about the possibility of loopholes emerging in future, given how long it has taken to get the Bill this far. The Bill contains safeguards; it must deal with high hedges, and with complainants whose reasonable enjoyment of their property is being undermined. Its measures are proportionate, and it is important that they should be so. I must ask hon. Members to recognise the strength of feeling on this matter and the number of people whose lives and enjoyment of their property are seriously blighted by these problems. I ask hon. Members to allow the Bill to proceed and to let us, as politicians, try to solve the problems genuinely brought to us by constituents. I ask them to recognise the safeguards and the assurances that I have given, and I ask that the new clause be withdrawn.
This has been a good debate, but I am disappointed that the Minister cannot assure us that the actual costs incurred by local authorities in meeting the burdens imposed by the Bill will be met by Government grant. In the absence of that, why not give local authorities discretion on whether to sign up to the Bill's procedures? She has not explained why it is all right for the Government to allow local authorities discretion on whether to operate the Noise Act 1996, which arguably relates to a problem affecting many more people than high hedge nuisance does. As recently as 20 May, another Minister said, in a debate on clause 47 of the Anti-Social Behaviour Bill:
In other words, they are being given discretion to provide the service if they wish to. If that applies to noise legislation, why cannot it apply to high hedge legislation? I wholly endorse what my hon. Friend the Member for Gainsborough (Mr. Leigh) said about trying to make progress and achieve compromise and flexibility. Both he and I were present last Friday when the House saw what can happen when there is flexibility and compromise. They are, indeed, what the whole mediation system written into the Bill is all about. We are trying to get the owners of high hedges and their neighbours to come to terms and resolve these matters amicably. I should have hoped that we could apply the same principle to the proceedings of the House. If the Government have no intention of applying clause 20 to single trees, why cannot it be excluded? That would be no big deal, surely. If the Government can extend discretion to local authorities on noise legislation, why cannot they do so for this Bill? Again, it would be no big deal. Why should such issues block progress on the Bill'? I repeat the appeal made by my hon. Friend the Member for Gainsborough for reason, compromise and flexibility. With those, we could make much faster progress."Many local authorities have found that they do not want to provide such a service. We could argue all day about whether they were right to decide that … As I said, we are freeing up local authorities from the requirement to provide the service described."—[Official Report, Standing Committee G, 20 May 2003; c. 379.]
Question put, That the clause be read a Second time:—
The House divided: Ayes 1, Noes 34.
Division No. 242]
Tellers for the Ayes:
Mr. Christopher Chope and
Mr. Edward Leigh
|Ainger, Nick||Fitzpatrick, Jim|
|Banks, Tony||Gardiner, Barry|
|Barnes, Harry||Gerrard, Neil|
|Brooke, Mrs Annette L.||Harris, Dr. Evan (Oxford W & Abingdon)|
|Byers, rh Stephen|
|Calton, Mrs Patsy||Hendry, Charles|
|Clarke, rh Kenneth (Rushcliffe)||Hill, Keith (Streatham)|
|Clarke, Tony (Northampton S)||Holmes, Paul|
|Cohen, Harry||Laing, Mrs Eleanor|
|Cooper, Yvette||Lazarowicz, Mark|
|Davey, Edward (Kingston)||Linton, Martin|
|McNulty, Tony||Vis, Dr. Rudi|
|Maples, John||Ward, Claire|
|Osborne, Sandra (Ayr)||Wicks, Malcolm|
|Quinn, Lawrie||Wright, Anthony D. (Gt Yarmouth)|
|Russell, Bob (Colchester)|
|Stanley, rh Sir John|
Tellers for the Noes:
Mr. Andrew Dismore and
|Taylor, John (Solihull)|
Mr. Stephen Pound
Question accordingly negatived.
New Clause 6
Complaint Where Relevant Authority Is Owner Or Occupier Of Land
"If a complaint under this Act is brought in respect of land of which a "relevant authority" is the owner or occupier it shall be referred forthwith by that authority to the Local Government Association which shall nominate another local authority to consider the complaint.'.— [Mr. Chope.]
Brought up, and read the First time.
I beg to move, that the clause be read a Second time.
With this it will be convenient to take the following amendments: No. 12, in clause 4, page 3, line 2, at end insert—
"() for the purposes of this section, reasonable steps shall include at least one meeting with the owner or occupier of the adjoining land on which the hedge is situated, unless that person has refused to meet or the complainant has reasonable grounds to fear for his personal safety if such a meeting was to be held.'
No. 81, in page 3, line 2, at end insert—
"() For the purposes of this section reasonable steps shall include at least one meeting with the owner or occupier of the neighbouring land and an offer to share any costs of reducing the height of the hedges'.
No. 13, in page 3, line 9, at end insert—
"() for the purposes of this section, in deciding whether a hedge is having an adverse effect, the authority shall have regard to—
No. 37, in page 3, line 9, at end insert—
'() The authority must, when acting under subsection (3), take into consideration all matters appearing to them to be relevant, including in particular (so far as appearing to be relevant)—
No. 96, in page 3, line 9, at end insert—
"() The authority must when acting under subsection (3) take into consideration all matters appearing to them to be relevant, including in particular any guidance issued by the Secretary of State or the National Assembly for Wales'.
No. 82, in page 3, line 35, leave out subsection (7) and insert
"A fee determined under subsection (1)(b) shall cover the reasonably foreseeable costs to be incurred by the authority in considering the complaint'.
No. 97, in page 3, line 36, leave out from "1(b)' to end of line 38 and insert
"shall be refunded to such extent as it exceeds the reasonable costs incurred by the authority in considering the complaint'.
What an extraordinary state of affairs! Barely 40 people, including yourself, Madam Deputy Speaker, are in the House for such an important piece of legislation. Let us hope that we can make some progress even with such a small number of hon. Members.
My hon. Friend should explain that, including the Speaker and Deputy Speakers, there are 659 Members of Parliament—or, sadly, 658 as we speak. In spite of some of the claims made about the importance of Bills—not least this one—fewer than 40 Members of Parliament out of 658 deem it sufficiently important to be here today to make legislation.
Absolutely. That is especially pertinent if, as we are told, so many representations have been made to hon. Members on both sides of the House by constituents who are anxious about high hedges. The number present is probably an indication of the interest in the Bill overall and the extent to which hon. Members take their constituents seriously on this subject.
The hon. Gentleman is far more knowledgeable than I am about the democratic processes of this esteemed House, but does he agree that the Order Paper clearly states that the Bill was not amended in Standing Committee? Is that not an indication that perhaps there was a consensus on the Bill and that it received all-party support?
Is the hon. Gentleman accusing his colleagues and Labour Members of being naïve in their reading of the Order Paper for assuming that a Bill that was not amended in a Committee that lasted for 39 minutes would sail through? Any hon. Member could see the number of amendments—35, I think—that had been tabled by the hon. Member for Hendon (Mr. Dismore). If that did not alert them to the fact that something controversial would be discussed today, I do not know what would have done. Other amendments have also been tabled. The hon. Member for Colchester (Bob Russell) cannot excuse the behaviour of all those who are not here by saying that they were duped into thinking that there was no need to attend. At least the hon. Gentleman was not duped—he was on the Committee and did not dupe himself—
Order. The hon. Gentleman has responded to the intervention. Perhaps he could now address the new clause.
Absolutely, Madam Deputy Speaker.The new clause deals with an issue raised by, I think, the hon. Member for Scarborough and Whitby (Lawrie Quinn). I am sorry that he is no longer in the Chamber. The problem is not new—it was debated when we considered on Report the Bill promoted by my hon. Friend the Member for Solihull (Mr. Taylor) in the last Parliament—so it is especially disappointing that it is left in the air and not resolved. Paragraph 136 of the draft guidance—about a council as a party to the complaint—states:
The guidance continues:"There are no special procedures laid down in the Act for dealing with complaints in which the council is directly involved as one of the parties. The hedge might, for example, be on land owned by the council."
I do not think that that goes far enough, because what we are talking about is justice being seen to be done. If the local authority is a party to the proceedings and the respondent to the complaint, how can a complainant believe that his complaint is being given just consideration if the local authority deals with it itself, rather than referring it, as the new clause suggests, to another local authority? The draft guidance continues:"It is important that the process for deciding such complaints is seen to be fair and impartial. Councils should, therefore, consider setting up internal procedures to ensure that the complaint is considered by a committee or officers who do not have responsibility for managing the land or trees in question. This should avoid any potential conflict of interest."
I am afraid that, again, that is no solution. I know from dealing with the local government ombudsman on behalf of my constituents that that is a long-drawn-out process and no proper compensation is payable at the end. Would it not be much easier for the local authorities to proceed along the lines suggested in new clause 6? That brings me to the next amendment in the group, amendment No. 12, which was tabled by the hon. Member for Hendon. I think that it is the first amendment in his name that we have had the chance to debate today. It states that reasonable steps shall be taken, and sets out what those reasonable steps shall include. I have supported that amendment. I note that it is tabled by a sponsor of the Bill, and I therefore hope that the hon. Gentleman will explain why it was not incorporated in the Bill at the outset, and failing that, why it was not incorporated in the Bill in Committee. Amendment No. 81 was prompted by a letter that I received from a member of the public in response to the previous occasion on which we discussed this issue in the House. That member of the public recited to me the successful conclusion of a dispute that she had with a neighbour about a high hedge. She said that, eventually, they decided that the costs of reducing the size of the high hedge should be shared between the neighbour on whose land the high hedge was situated and herself, the complainant. She reported to me that that had been done, and that she was pleased. The amendment would therefore add to the pressure on people to resolve these differences privately and in a consensual way. Amendment No. 13 is another amendment tabled by the hon. Member for Hendon that I, too, support. It repeats the wording in the previous Bill. Why was this caveat taken out of the previous Bill? It was suggested earlier that this subject had been subjected to a great deal of scrutiny in the House. We will not make progress, however, if the reasonable caveats and requirements contained in an earlier Bill are not contained in a subsequent Bill. Normally, the history of private Members' Bills has been that as they proceed through the iterative process they become more reasonable and more confined to the key mischief that they try to address rather than drifting further away from the point. Amendment No. 13 should therefore commend itself to the House, as it requires that a new subsection should be inserted in clause 4, providing that"If someone believes that the council have not handled their complaint properly, they can refer the matter to the local government ombudsman".
I hope that everyone in the House will think that that is eminently reasonable and should not have been excluded from this Bill. I am glad that the hon. Member for Hendon agrees with me on that."for the purposes of this section, in deciding whether a hedge is having an adverse effect, the authority shall have regard to … the height of the hedge when viewed from the complainant's property … the distance the hedge is situated from domestic buildings on the complainant's property … the length of time the hedge has been growing … whether the complainant was first in occupation before or after the planting of the hedge … whether the area is urban, suburban or rural … the likely cost of remedial action … the means of the owner or occupier of the neighbouring land … for how long the owner or occupier of the neighbouring land has been owner or occupier."
Does my hon. Friend accept that the Bill has survived by the closest possible shave? If it had received one less vote in a previous Division, it would have fallen. I appeal again—I am sure that my hon. Friend will join me—for some flexibility from the promoter so that we can make progress. If we have no flexibility, it might be very difficult for the Bill to make progress this morning.
I endorse my hon. Friend's remarks. He said that the Bill could have fallen, but I am glad that it did not. The previous Bill fell because there was not a quorum and some of the Members who were involved that day were unjustly accused of "talking it out". That is not what happened; there was no quorum. This time, there has been a quorum and I hope that the Bill's promoter took the opportunity to reflect in the previous Division on whether he wishes it to reach the statute book. If he does, the people of good will in the Chamber could enable that to happen. Unless there is the flexibility and compromise that we witnessed last week in the proceedings on the Fireworks Bill, I do not think that the Bill will reach the statute book. We are trying to impress on our constituents the need to mediate and to be reasonable. If we do not show such reasonableness ourselves, I am not sure that we are setting a very good example.Amendment No. 37 says:
Those words appear verbatim in clause 4(4) of the previous Bill. Why were they removed? I shall embellish the debate on this amendment by illustrating it with a particular case from Highcliffe in my constituency. The owner of a property with a south-facing garden has been there for about 40 years. To the south boundary of that property was a bungalow, but the site was redeveloped and the bungalow was replaced with a two-storey block of flats. The planning authority made it a requirement that the flats should be situated a specific distance away from the other property's southern boundary, but they were built 20 ft closer to that boundary than they should have been. Instead of rigidly enforcing that planning requirement, the local authority said a screen should be built to protect the owner of the other property from the flats. The screen was never planted, so the owner planted one instead. He has kept it trimmed but it is much higher than 2 m. It needs to be that high to afford him privacy from those on the first floor of the flats who overlook his garden. I spoke to the owner of the house last weekend, and I know that his wife—who is in hospital recovering from a slight stroke—would be extremely pleased to know that this proposal had been accepted by the promoter of the Bill. She would be even more pleased could she be assured that the Bill would not be retrospective in respect of cases such as hers. We shall discuss the amendment that deals with that in due course. Each of these safeguards is born out of the real-life experience of ordinary people. That has been reflected in my postbag, in the context both of this Bill and of its predecessor."The authority must, when acting under subsection (3), take into consideration all matters appearing to them to be relevant, including in particular (so far as appearing to be relevant)—
(a) the extent to which the high hedge in question is capable of affording (or, if reduced in height, would still be capable, of affording) privacy to an occupier of the neighbouring land, (b) the extent to which that hedge contributes (or, if reduced in height, would still contribute) to the amenity of the neighbourhood, and (c) any legal obligation (whether imposed by or under any enactment or otherwise) relating to that hedge.."
Amendment No. 96 states:
"The authority must when acting under subsection (3) take into consideration all matters appearing to them to be relevant, including in particular any guidance issued by the Secretary of State or the National Assembly for Wales".
I would have thought that that was a common-sense requirement to place upon a local authority, but the draft of the guidance that I have seen so far leaves much to be desired. I shall not go into detail on that because I am sure that we want to make as much progress as possible.
Amendments Nos. 82 and 97 address the issue of fees. They provide a fallback position in the event of the amendments in the previous group not being accepted by the promoter. Amendment No. 82 would provide that
"A fee determined under subsection W(1)(b) shall cover the reasonably foreseeable costs to be incurred by the authority in considering the complaint."
Amendment No. 97 would ensure that, if there were any excess income as a result of that, compared with the actual reasonable costs incurred by the authority in considering the complaint, there should be a refund. That seems eminently sensible, but unless we have a system for ensuring that the costs incurred by the local authorities can be met by the people who are causing those costs, we shall effectively be saying that everyone should pay a higher council tax to accommodate this regulatory requirement. For the reasons that I set out earlier, I do not think that that would be right. Having cantered briefly through the amendments, I hope that new clause 6, in particular, will find favour with the promoter, because its provisions would resolve the issue of a local authority being the judge in its own cause.
The problem with amendments being grouped together is that they are like a good rustic historic hedge: to remove one or two of the species would be to damage the whole. The promoter of the Bill should seriously consider the new clause relating to a local authority being both offender and judge. I am grateful to my hon. Friend the Member for Montgomeryshire (Lembit Öpik) for drawing to my attention a problem caused by Powys county council, which has planted a row of high trees 140 m long in front of Dyfnant terrace and Rock terrace on the B4518 at Llanidloes. It is probably not pronounced like that, but I have done my best. I am sure that there will be other examples of the trees or high hedges that are causing a problem to a complainant or group of complainants being on land owned by a county council, district council or borough council. The promoter of the Bill must in fairness address the question of how people who have a complaint against their local authority in those circumstances can get the matter resolved to their satisfaction. Surely the local authority cannot be judge and jury in cases involving its own property.
I shall speak briefly, if I may, to amendments Nos. 13, 37 and 96. I particularly commend amendment No. 13, tabled by the hon. Member for Hendon (Mr. Dismore), which is eminently sensible. I hope that, in a spirit of compromise, the promoter will accept it, because it would answer a few of my concerns about rural areas.The amendment would allow local authorities to be far more responsive to local conditions, and they would not have to consider only the height of the hedge. As I have pointed out, 2 m is not a great height and if the proposal went into statute local authorities would be able to take account of
in considering larger gardens in rural areas. The issue could be considered in the round, and the local authority could get some idea of whether the hedge was blocking out light and, on the face of it, causing a major nuisance to the complainant. If the amendment were passed, the local authority could consider"the height of the hedge when viewed from the complainant's property"
If someone complained to the local authority, an officer could make a brief visit to a rural garden and say to the complainant, "I'm sorry, but I am not prepared to take up the case on your behalf with all the attendant costs and difficulty as there is a large garden involved. The hedge may be over 2 m, but, objectively, it simply should not cause you any problem. The time for which it has been growing is reasonable." Local authorities could also consider"the distance the hedge is situated from domestic buildings on the complainant's property".
That is a good point. May I illustrate my argument with a constituency example? My constituency has a large number of fairly old-fashioned modern developments, if I may put it that way, comprising bungalows with fairly large gardens that were put up in the '50s, '60s and '70s. Under the new guidelines, particularly those laid down by the Office of the Deputy Prime Minister, there has been a dramatic increase in the density of new housing in rural areas—in particular, in Wragby in my constituency. That is partly because the cost of the land is rising and partly because modern couples who are buying new houses apparently do not want larger gardens. Another reason is that, under planning policy guidance note 3, I think, the ODPM is giving developers an open gate to increase the density of housing in rural areas dramatically. In my constituency, there are many hedges more than 2 m high growing at the end of the fairly large gardens of those rows of bungalows, which once had arable fields beyond them. That is typical of the edges of villages in my constituency, where people were concerned about pesticides and fertilisers in the fields beyond, so they allowed their hedges to grow. New developments are growing up on the edges of the villages. Few bungalows are going up, but large numbers of two-storey houses are being built very densely and right up to the hedge line. I constantly hear that complaint, often from elderly people who are without great resources. They reluctantly accept that they do not have any right to a view and that the estate is going up because it is in the planning guidelines so they will have to put up with it. However, they are already pretty upset that the corner of the house on the edge of the estate is right up against the hedge. If the amendment is not passed and if the local authority is unable to take some cognisance of"whether the complainant was first in occupation before or after the planting of the hedge."
and unable to have regard to"whether the complainant was first in occupation before or after the planting of the hedge"
what will happen in respect of the bungalow, which has been up 20 or 30 years, and the person who has lived there, allowing his hedge to grow, who may now be a pensioner whose children were brought up in the constituency? Suddenly a new house is built and the occupier who moves in issues a complaint. His new house is right up against the hedge line, and he complains to the local authority that the hedge should be cut down. If the local authority were to act on that, it would be an unfair imposition on a constituent who has happily enjoyed his bungalow and hedge for 20, 30 or even 40 years. I refer to that problem constantly, and I wish we could have a Bill that took it into account. Amendment No. 13 tabled by the hon. Member for Hendon is excellent, no doubt because it was in the previous Bill and was probably drawn up by Government draftsmen. If accepted, it would take account of the likely cost of remedial action and the means of the owner or occupier of the neighbouring land. That would help my pensioner constituent living in a bungalow, and some cognisance could be taken of his means. The amendment would require the local authority to take into consideration"the height of the hedge when viewed from the complainant's property",
That would also help to solve the problem of someone moving into a modern housing estate and immediately issuing a complaint. Some of the other amendments similarly give local authorities greater scope to consider the complaint in the round, to take a common-sense view and to come up with sensible and objective action. In a sensible, moderate world in which people try to come to an agreement, how could anyone argue with the wording of amendment No. 37? It says:"for how long the owner or occupier of the neighbouring land has been owner or occupier".
such as"The authority must, when acting under subsection (3), take into consideration all matters appearing to them to be relevant"
and"the extent to which the high hedge in question is capable of affording … privacy"
These are sensible amendments. I shall stop there, because I am sure that the promoter will say that he is prepared to accept them and make progress on the Bill."the extent to which that hedge contributes (or, if reduced in height, would still contribute) to the amenity of the neighbourhood".
The reasons why I proposed amendments Nos. 12 and 13 are similar to those given by the hon. Members for Christchurch (Mr. Chope) and for Gainsborough (Mr. Leigh). I support the Bill, as my hon. Friend the Member for Ealing, North (Mr. Pound) knows, which is why I agreed to sponsor it. However, whenever we sponsor a Bill, there are always issues to raise, either to get assurances or to move the debate on a little. My amendments may be technically flawed, but that does not mean that they do not address issues that should be considered.Amendment No. 12 tries to deal with the problem of ensuring that people talk to each other to try to solve their differences before they end up having to use the complaints procedure. It is important that, whenever possible, people find an amicable solution to these serious disputes. If people meet face to face, perhaps with the help of a mediator, many of these problems can be resolved without the lengthy process outlined in the Bill.
Given that the hon. Gentleman is a sponsor and supporter of the Bill, has he discussed these amendments with the promoter? Is the promoter happy with what the hon. Gentleman is proposing?
The promoter will speak for himself shortly. I shall certainly not put words into his mouth. I am sure that he agrees with the principles behind my amendments, but whether he thinks they should be in the Bill, we will no doubt find out when he responds to the debate.On amendment No. 12, with the best will in the world, these disputes can get somewhat heated, and occasionally downright dangerous—we have seen some terrible stories in the newspapers recently. Although I am a great believer in the art of mediation to try to get people to resolve their difference; in a friendly way, sometimes the recipient of the complaint refuses to have anything to do with the process and puts the proverbial two fingers up to the complainant saying, "Do your worst." Alternatively, things can get out of hand and people suffer violence. There has been a case like that in the past week.
I particularly warmly welcome amendment No. 12, which I did not have a chance to mention. I am not sure whether the publicity reached southern England, so hon. Members may not know that, last week, someone in Lincoln was shot dead because of a dispute over a hedge in a urban area, so any provision, such as amendment No. 12, to resolve such disputes amicably would be very welcome.
I am grateful to the hon. Gentleman for his intervention, because that is precisely the case to which I was tangentially referring.Although efforts definitely need to be made to bring people together through mediation, frankly, there are times when mediation will not work, either because the recipient of the complaint flatly refuses to have anything to do with the mediation, or because tempers have got so heated that things can be made worse, rather than better, by such meetings. However, it is far preferable to make progress through sensible discussions. The hon. Member for Gainsborough also referred to amendment No. 13, which I tabled, and he is right to say that we are going over old ground I remember debating such things on previous occasions when we have considered such legislation in previous years. The purpose of amendment No. 13 is to set out the sort of things that any reasonable local authority would bear in mind when considering those disputes. In earlier debates, we have heard about the risk of local authorities adopting either a rather hard-headed approach or a rather lax approach. Assuming that we agree that some parameters should be laid down, amendment No. 13 sets out the sort of issues that should be considered. To build on some of the comments made in earlier discussions, it is important that we reflect on whether the hedge under consideration is situated in an urban, suburban or rural area. I know from my own constituency, which is suburban, that one can occasionally find circumstances in which a hedge that has significant and impinging effects might not cause any problem at all if it were in a rural area, and some interesting points were made about that earlier in the debate. It is also very important to bear in mind which came first—the complainant or the hedge. If someone moves into a property where the hedge is already growing, that is a very important fact because they either bought or rented the property in the knowledge that the hedge was already there. Obviously, that could affect property values. The amendment very much speaks for itself. It has been ably introduced by the hon. Member for Christchurch, rather than by myself, and I cannot add a great deal to the debate other than to say that there are some important factors that need to be taken into account.
I am sure I cannot be the only hon. Member who sometimes wonders what sort of impression we give to people who watch our debates. We seem to be discussing ever more abstruse issues when people are dying. The problem that we are trying to address is not in dispute, yet we seem to be conducting some sort of stately quadrille in a world of "what ifs?" and "what mays?". Some people outside the House would think that we are in dereliction of our duties to those people in whose name we sit in this place.I am, by nature, someone who is flexible and emollient, and I should like nothing more than to be able to give a warm welcome to a great many of the amendments under consideration, but on this fifth introduction of a high hedges Bill, virtually all room for flexibility has long gone. I am not suggesting that we are adhering to a rigid code that does not allow flexibility—merely that the debates have been debated, the discussions have been discussed and the amendments have been incorporated. We now have a stripped down, pared down Bill that works with local authorities, Hedgeline and the police. It works. What is more important than any hon. Member's personal opinions and views, as expressed today, is what we do for the people of this country in whose name we sit in the House. It is vital that we address this need. Until a few seconds ago, I have been involved in negotiations in a desperate attempt to meet some of the concerns that have been well expressed by the hon. Member for Christchurch (Mr. Chope) and by my hon. Friend the Member for Hendon (Mr. Dismore). I seem to recall that new clause 6 was tabled as an amendment to the Bill that was introduced by the hon. Member for Solihull (Mr. Taylor). It would create a strong and slightly suffocating additional bureaucracy. The draft guidance that the Office of the Deputy Prime Minister has already placed in the Library advises local authorities on the erection of Chinese walls, or invisible walls within the local authority. Local authorities currently investigate aspects within their remit. They do so quite efficiently. Were they not to do so, the sanction of the reference to the local government ombudsman or the National Assembly for Wales would be more than sanction enough. With amendments Nos. 12 and 81, I have much sympathy. They are in line with the approach mentioned in the leaflet entitled "Over the Garden Hedge". I am anxious not to limit the area in which the local authority can operate. My hon. Friend the Member for Hendon recognises that discussion and mediation are the ideal solution. I think that, in 85 per cent. of cases that local authorities are concerned with, that works but we must allow local authorities flexibility to take account of the particular circumstances of individual cases. Of course, it is best if there is a meeting between the parties before a complaint is made to the local authority but we cannot tie the local authority's hands on what they can or cannot consider. I was tempted by amendment No. 37. The hon. Member for Christchurch makes a powerful case. His amendments to the Bill that was introduced by the hon. Member for Solihull moved in a slightly different direction. On that occasion, he wanted to expand the list of factors to be considered because he felt that it was restrictive. However, in the interests of good governance and good service to the people whom we represent and of emollience, and recognising the strength of feeling on the Opposition Benches, my hon. Friend the Minister has assured me that there is sympathy on the Government Front Bench for the acceptance of amendment No. 37, as hon. Members will shortly hear. In the interests of expedience, I finish by saying that, with the exception of amendment No. 37, with which I have much sympathy and which I am happy to support, I urge my hon. Friends and Opposition Members not to press the amendments.
May I briefly respond to the points that have been raised? On new clause 6, clearly I agree that decisions must be fair and impartial. The guidance explains that local authorities will need to set up internal walls. That is the kind of thing that local authorities already do. Suppose the council wants to knock down a tree that is subject to a tree preservation order, or suppose social services has a stake in a planning application, it is a standard approach to set up internal walls. There are checks on local authorities to ensure that they are fair and follow due process, whether it be through the appeals system or the process to judicial review.On amendments Nos. 82 and 97 and the way in which fees are set, it is appropriate that we have proper consultation on the level of the maximum fee, rather than requiring that the fee should be set at the full cost for the local authority of considering the complaint. We would take account of all those considerations in the consultation and in setting the maximum fee. We have already said that we would make good the shortfall through the revenue support grant. Otherwise, it should be up to the local authority to decide whether to set a fee within the framework of that maximum, as set out in regulations. On amendments Nos. 12 and 81, there is a problem with setting that kind of thing out in the Bill. They set out too much detail about the meetings that need to take place. They do not take account, for example, of someone who is disabled or other problems that may make meetings difficult. That matter is properly dealt with through guidance. I have a lot of sympathy with the aim of amendments Nos. 13, 37 and 96, which attempt to set out all sorts of issues that should be considered by local authorities. As we pointed out in the draft guidance, local authorities should consider such issues in taking decisions on an individual case. My concern about amendment No. 13 is that, in listing the factors that must be considered, it would make it very difficult for local authorities to consider anything not on the list. On amendment No. 96, because the guidance is published, if a judicial review were undertaken, for example, it would in any case be appropriate for the courts to take into account any guidance. So local authorities would take account of the guidance in making decisions. However, I recognise that the House is concerned—
I am somewhat amused by the Minister's comments about amendment No. 13. I see no reason why any reasonable person cannot accept that amendment, which was tabled by one of her hon. Friends. She intimated that there are various extra factors that a local authority might want to consider, but what are they? Perhaps she could advise us.
The truth is that such problems often arise in respect of legislation. When we want local authorities to take account of the factors that might be relevant in a particular circumstance, it is sometimes difficult to anticipate, as the legislation passes through this House, what all of those factors might be. If we could think of them in advance we could add them to the legislation, which would make matters easier.
Unfortunately, the Minister is unable to help us in respect of the other factors that local authorities should consider. If she reads the amendment, she will discover that it says,
not that it shall "only" have regard to; it is not an exclusive amendment. My hon. Friend the Member for Christchurch (Mr. Chope) and I are both barristers; we do attempt to understand legislation. If the legislation were amended in this way, it would not force local authorities to consider only those points mentioned in the amendment. Given the way in which it is drafted, why is she opposing it?"the authority shall have regard to",
The hon. Gentleman will be aware that we often have debates such as this on a wide variety of legislation, particularly in Committee. Attempts to ensure that particular factors are taken into account can often become constraints on other factors being taken into account as well. Let us consider the difference in the wording of amendment Nos. 13 and 37. The latter states that an authority must take into account
and then proceeds to list some specific factors. The use of the word "including", by contrast with the provision of a comprehensive list, makes it is easier to avoid future problems, whereby local authorities are unable to take into account matters that they consider relevant because of the legislation's drafting. I agree with the hon. Gentleman that this is a drafting issue, and the drafting of amendment No. 37 has advantages over that of amendment No. 13. For that reason, the Government are happy to support acceptance of amendment No. 37, which would provide greater safeguards in respect of the privacy of the occupier of the neighbouring land, and the extent to which a hedge contributes to the amenity of the neighbourhood, by including such safeguards in the Bill as well as in the guidance. I urge the Members concerned to withdraw the other amendments, but the Government are certainly happy to support acceptance of amendment No. 37."all matters appearing … to be relevant, including in particular"—
I suppose that we should be grateful for small mercies, and indeed I am, but let us examine the facts. A version of amendment No. 37 was actually included in the previous Bill. Why was it removed, and why have we had this debate about it? The Bill's promoter and the Minister have accepted the underlying principle at the last minute, as a result of an amendment, tabled in my name, that is identical to the original version. I am delighted that the amendment will be accepted, but I am disappointed with the argument that the Minister deployed. Having listened to her comments and to those of my hon. Friend the Member for Gainsborough (Mr. Leigh), I have no doubt that my hon. Friend is right. If we cannot make the Minister see our point of view, that is all the more disappointing.New clause 6 is about justice being seen to be done. It may well be that the authority in the London borough of Ealing is so large and employs so many people that one can have a meaningful description of different departments—Chinese walls, and so on—dealing with a complicated issue. However, the borough of Christchurch would be lucky if it could afford one tree officer and there are probably only a handful of people in the planning department. A system in which the council is on one side of the argument and a complainant on the other—the complainant would likely view the council as judge in its own court, but the council has only 24 elected members and we also have to take into account their various roles as chairmen and others on regulatory and scrutiny committees—would not work.
What is so unreasonable about new clause 6? Why cannot it be accepted? If the Government or the sponsor will not accept it, I hope that the House will in the Division that we shall shortly have. The hon. Member for Ealing, North (Mr. Pound) says that the Bill has been much discussed before and that iterative process has removed the room for flexibility. Unfortunately, the iterative process has not improved the Bill as it should have done and as I still hope that it can be. I shall say no more now, because we want to make as much progress as possible.
Question put, That the clause be read a Second time:—
The House divided: Ayes 1, Noes 35.
Tellers for the Ayes:
Mr. Christopher Chope and
Mr. Edward Leigh
|Banks, Tony||Laing, Mrs Eleanor|
|Barnes, Harry||Lazarowicz, Mark|
|Bottomley, Peter (Worthing W)||McNulty, Tony|
|Bottomley, rh Virginia (SW Surrey)||McWalter, Tony|
|Mandelson, rh Peter|
|Brake, Tom (Carshalton)||Maples, John|
|Brooke, Mrs Annette L||Osborne, Sandra (Ayr)|
|Byers, rh Stephen||Quinn, Lawrie|
|Calton, Mrs Patsy||Russell, Bob (Colchester)|
|Clarke, Tony (Northampton S)||Stanley, rh Sir John|
|Cohen, Harry||Sutcliffe, Gerry|
|Cooper, Yvette||Taylor, John (Solihull)|
|Davey, Edward (Kingston)||Vis, Dr. Rudi|
|Fitzpatrick, Jim||Ward, Claire|
|Gardiner, Barry||Wicks, Malcolm|
|Harman, rh Ms Harriet||Wright, Anthony D. (Gt Yarmouth)|
|Harris, Dr. Evan (Oxford W & Abingdon)|
Tellers for the Noes:
|Hill, Keith (Streatham)|
Mr. Andrew Dismore and
Mr. Stephen Pound
Question accordingly negatived.
Complaints To Which This Act Applies
I beg to move amendment No. 49, in clause 1, page 1, line 7, after 'by', insert
`for an unreasonable obstruction of light caused by'.
With this it will be convenient to discuss the following amendments: No. 50 in page 1, line 13, after 'by', insert
'an unreasonable obstruction of light caused by'.
No. 87 in page 1, line 17, after the first 'of, insert
`the obstruction of light caused by'.
No. 43 in page 1, line 20, at end insert—
"() This Act does not apply to hedges more than 10 metres from the complainants house.'.
No. 46 in clause 2, page 2, line 14, leave out 'or access'.
No. 47 in clause 2, page 2, line 19, leave out 'or access'.
No. 48 in clause 3, page 2, line 31, leave out subsection 31.
No. 90 in clause 4, page 2, line 38, at end insert—
"(1 A) The authority shall dismiss a complaint if the height of the hedge in metres is less than
where D is the distance in metres between the hedge and the nearest outside window wall of the complainant's property'.
No. 52 in clause 4, page 3, line 3, leave out subsection (3) and insert—
`(3) If the authority do not so decide, they must decide—
(a) whether the complainant's reasonable enjoyment of the domestic property specified in the complaint is being affected by an unreasonable obstruction of light caused by a high hedge so specified; and (b) if so, what action (if any) should be required to be taken in relation to that hedge, in pursuance of a remedial notice under section 5, with a view to remedying any such obstruction or preventing its recurrence.'.
No. 84 in clause 4, page 3, line 4, after `whether', insert
'the obstruction of light caused by'.
No. 85 in clause 5, page 4, line 4, after the second `that', insert
`the obstruction of light caused by'.
No. 86 in clause 5, page 4, line 36, after `of, insert
`the obstruction of light caused by'.
I should draw the attention of the House to a misprint in amendment No. 48, which should end with a reference to subsection (3).
In moving the amendment and speaking to the consequential—
Before my hon. Friend proceeds, may I ask whether he is impressed with the consistency of support for the Bill? We have seen two Divisions in which 35 out of 658 MPs have exhibited their support for the Bill. Does that degree of support give my hon. Friend any encouragement that the Bill should proceed, or does he think that perhaps it indicates that a degree of caution on the part of the House would be appropriate?
Order. The hon. Gentleman is in the process of moving the amendment.
I shall not respond to my right hon. Friend, who makes his point clearly.Amendments Nos. 49, 50, 87, 52, 84 and 86 deal with objectivity and try to restore to the Bill the degree of objectivity that was in the previous Bill on this subject. This goes back to my point on the previous group; if we are to an iterative legislative process to try to produce the best Bill, it is disappointing if the Bill in question leaves out many of the safeguards in a previous Bill.
Objectivity is fundamental to the tests in the Bill and good regulation. On Second Reading, I expressed concern that the Bill no longer had an objective test of whether there was an unacceptable loss of light as a result of a high hedge and that the test had become more subjective on whether the hedge itself had an impact on a particular person. I said:
"That is a recipe for disastrous law-making."
So I believe it to be. I expressed the hope that, in light of statements made by the hon. Member for Ealing, North (Mr. Pound), objective tests would be introduced in Committee. I reminded him that whether his Bill would obtain a Second Reading was in the balance because of shortage of time, and I went on to say that
"if it does get a Second Reading, I hope that the hon. Gentleman will accept that that has happened only because of the indulgence of hon. Members who have severe and serious reservations about it and wish the Bill to be substantially altered in Committee."
What did the hon. Gentleman himself say about objectivity on Second Reading? He said:
"Objectivity is a key component of the Bill, which is written specifically to ensure that a series of objective criteria can be used as a template involving the Building Research Establishment and various other groups."
Referring to my hon. Friend the Member for Mole Valley (Sir Paul Beresford), who is not in his place I fear, but who support; the amendments, the hon. Gentleman added:
"I hope that he will come to see that the objective criteria in the Bill will address precisely the issues that he is raising." —[Official Report, 28 March 2003; Vol. 402, c. 625–32.]
The amendments are intended to insert in the Bill the objectivity that is currently lacking and that was not incorporated in Committee, much to my disappointment. I can best illustrate the point by referring to paragraphs 121 to 124 of the draft guidance, which relate to the blocking of views. The guidance says:
"A tall hedge can block out an eyesore or someone's cherished view … The value that is placed on an individual outlook is very personal. In addition, nc-one has a right to a particular view … Nevertheless, factors that might be taken into account include the extent of the view and whether it is near or distant. For example, the effect might be more severe if the property would, without the hedge, look out onto open countryside than if the hedge blocks a narrow gap between other properties that leads down to the sea. The circumstances of the complainant could also be relevant."
That introduces a subjective test, based on the circumstances of the complainant. It continues:
"The loss of view because of the hedge would probably be felt more by a person with limited mobility who is tied to the house than by someone who is out at work for most of the day."
The guidance seems to be saying that if a property is occupied by somebody who is out at work most of the day and there is a hedge next door, that hedge may remain, but if the house is then sold to someone who has limited mobility, the council could order the hedge to be cut down, not because the hedge or the owner have changed, but because the neighbour has changed from being someone who goes to work to someone who is confined to home. Surely it must alarm serious legislators to introduce such a ludicrous, subjective test, removing all predictability and objectivity from the law.
Paragraph 124 says, and if hon. Members have not read it they should:
"In addition, consideration might be given to whether the particular view could be obstructed by future development, including development within the curtillage of a dwellinghouse that is permitted under the Town and Country Planning (General Permitted Development) Order 1995. This could allow someone to build an extension to their home (up to a certain size) or to erect a ridge-roofed summerhouse in their garden up to 4 metres high, without needing to get express permission from the council."
That introduces the extraordinary scenario in which a hedge 3 ft high could be ordered to be chopped down and the person who owned the land on which it had
stood could erect a ridge-roofed summer-house of 4 m. In other words, it would be 1 m higher than the hedge had been, thereby putting the person who had complained more into the shade and out of the sun than they were before. If the hon. Member for Ealing, North really wants to legislate on such a basis, I am amazed. When he really addresses the implications of including in the Bill a test as subjective as that of whether people's view is blocked, I hope that he will recognise that it is long-established in our common law that no one has a right to a view and that the measure is going much too far.
Amendment No. 43 would restrict the Bill so that it did not apply to hedges more than 10 m from the complainant's house. It was tabled by my hon. Friend the Member for Gainsborough (Mr. Leigh) so I shall not comment further on it. Amendments Nos. 46 and 47 would limit the Bill, rather as the Bill that we discussed earlier was limited.
Amendment No. 90 is similar to one that we debated earlier. It is reasonable for us to challenge the promoter of the Bill on how the objective test that he proposes would be assessed. The material for such an assessment has, fortunately, been prepared for us by the Building Research Establishment, in a document drawn up in anticipation of a previous Bill. The amendment proposes that one way of assessing objectivity would be to require an authority to
"dismiss a complaint if the height of the hedge in metres is less than D/2+2, where D is the distance in metres between the hedge and the nearest outside window wall of the complainant's property".
Despite the need to make as rapid progress as possible, I must express my disappointment that, following the good arguments deployed on the issue in April 2001, the promoter of the Bill has not accepted that objective test. I hope that he will be minded to consider the error of his ways and incorporate such a test in the measure.
The Government asked the Building Research Establishment and the Tree Advice Trust to look into the impact of evergreen hedges on loss of light to buildings and gardens, and to devise a method for calculating the height that a hedge should be so as to avoid the obstruction of light. They undertook that work, which was paid for by the Government, to try to produce an objective test for use in adjudicating on hedge disputes between neighbours. Guidelines were produced, including the procedure for calculating hedge height, and I am greatly disappointed that, after all that hard work, they are not being included in the measure.
I hope that the promoter of the Bill will accept the amendments in the spirit in which they were tabled, which was to try to introduce objective tests and fairness to the Bill.
I hope that the promoter of the Bill will give some credence to my arguments for amendment No. 43, that the Act
I should certainly be prepared to accept a compromise; the distance could be 10 m, 15 m or a bit more. I simply wanted to make the point that we need some element of compromise in the case of large, more rural gardens. Local authorities should not be put to the expense of having to deal with a large number of complaints where the hedge is a long distance from the complainant's property and could not obstruct his light. However, I am quite prepared to argue about whether the distance should be 10, 15 or even 20 m. I am simply trying to exclude the larger, more rural and suburban gardens from the Bill's provisions. I very much hope that the promoter might accept amendment No. 49. At the moment the Bill would apply a purely subjective test. The Bill applies to a complaint from someone who"does not apply to hedges more than 10 metres from the complainants house".
so a complainant merely needs to tell the local authority, "My enjoyment of my property is being affected by the height of that hedge". No other explanation is required. There is no need to state distances or make a reference to light. Surely it is not impossible to accept this important amendment, which would simply put in the Bill the very clear requirement that the complainant must allege that his reasonable enjoyment of the property is being adversely affected by"alleges that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge",
the height of a high hedge situated on land owned or occupied by another person. Thus amendment No. 49 goes to the heart of what we are trying to achieve in this series of amendments, which we had very much hoped to get through today; it would have made the passage of the Bill possible. We could have had a very narrow Bill to deal with the enormous leylandii trees. Instead we have a large Bill—large and wide-ranging in terms of private Member's legislation—which would put a severe burden on local authorities, based on an entirely subjective test. I very much hope, even at this late stage, that the promoter may at least be prepared to accept amendment No. 49."an unreasonable obstruction of light caused by"
I assure the hon. Member for Christchurch (Mr. Chope) that his 3 ft tall nightmare will not come true. Nothing anywhere in the Bill talks about anything below 2 m being cut down.I wish to address the substantive point. I hope that you will allow me, Madam Deputy Speaker, to speak principally to amendment No. 49, as the remaining amendments in the group are consequential on that. As I commented in Committee, nothing—very few things in life, anyway—would have made me happier than to arrive at a mechanistic, subjective test that we could use: a formula, an equation, that would work. 1 shall now draw attention to one way in which the Bill has changed following consultation. Sadly for Opposition Members, the change has taken place in the opposite direction from that in which they are rowing. The final report of the Building Research Establishment clearly demonstrated that no one calculation method could cover every situation adequately. In addition, Hedgeline, to which credit should be paid, which represents at least 4,000 people adversely affected by this problem, is concerned that a large number of its members live next door to hedges that are already lower than the heights that the BRE guideline would have specified. In drafting the Bill, I have accepted that the height and light guidelines cannot be regarded as providing a remedy by proxy for all problems associated with high hedges, and that some extension of the grounds of complaint beyond light obstruction is justified. The hon. Member for Gainsborough (Mr. Leigh) referred to someone making a complaint about their loss of amenity or light. The clause that specifically excludes frivolous and vexatious complaints was crafted precisely with that thought in mind. The solution that has been adopted is to allow people to complain to their local authority under the Bill if their reasonable enjoyment of their property has been adversely affected by a high hedge. That seems to me to offer the flexibility that hon. Gentlemen have been asking for, within the context of defining the problem. It includes obstruction of daylight and sunlight, jointly and as separate issues, as well as loss of view. In addition, someone in a small garden might feel that they were being unduly closed in. I would have loved to accept more amendments than I have been able to, but the amendment is in fact an amendment of an amendment, because the original BRE proposals, as discussed in Committee, have been changed and brought back to the Floor of the House in a far better form: a form that everyone that we have consulted supports. On that basis, I most respectfully urge those who tabled the amendments to consider those outside this place who at the moment have no solution to their problems, and consider whether it might be appropriate to withdraw, or not press, the amendments.
I support my hon. Friend in urging the hon. Member for Christchurch (Mr. Chope) to withdraw the amendment. The group of amendments would unduly restrict the Bill. It is true that a hedge could be 10 m away, but it could also be 30 or 40 m high. Equally, it would be slightly surreal to include the formula D/2+2 in the Bill. It is clearly right that there should be fair standards for judging individual cases, but the guidance will do that. It would be inappropriate to restrict the Bill in the way that the amendments would do.
That is a disappointing response. Effectively, the guidance introduces a subjective test instead of the objectivity that the Bill's promoter promised us on Second reading. There is revised tree advice and BRE guidance. Why not rely on that? It is available to the promoter, but there is no suggestion that it should be incorporated into the Bill. Indeed, the references to BRE guidance are relegated to a small part of the overall guidance, which puts greater emphasis on the particular circumstances of any individual resident.There may have been a slip of the tongue in my example of a hedge having to be cut down when I referred to 3 ft rather than 3 m. I did not want to amend the Bill to put the height into feet because I thought that some people might regard that as trivial and unnecessary and I wanted to table serious amendments for debate. It is no surprise that I lapsed back into thinking in terms of feet, however, because that is how I usually think of such measurements. The fact that I mentioned 3 ft rather than 3 m does not alter my point that a hedge might have to be reduced to 2 m but could be replaced by a building with a roof of 4 m high under planning regulations. It is a great disappointment to me that the objective tests contained in the Bill promoted by my hon. Friend the Member for Solihull (Mr. Taylor) have been removed and replaced with the subjective tests, which offend against all good legislation. However, I am keen—even if no one else—to make progress so that we can discuss the next group of amendments. If we are wedded to the iterative process, there will come a time—indeed, I think I promised this to some constituents—when I introduce a private Member's Bill, and it may well be on this subject, although I would confine it to the very limited circumstances and mischief that need to be addressed. This Bill's provisions are disproportionate to the problem. To enable me to draft the Bill that I may promote, it will be useful to discuss the next group of amendments. In light of that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 91, line 7, after 'on', insert 'adjoining'.
With this it will be convenient to discuss the following amendments: No. 77, in page 1, leave out lines 9 to 20.
No. 2, in page 1, leave out lines 9 to 22.
No. 92, in page 1, line 14, after 'on', insert 'adjoining'.
No. 55, in page 1, line 20, at end insert—
`No complaint shall be made under this Act in relation to a high hedge by the owner or occupier of a domestic property if that property was constructed after the hedge was established.'.
No. 71, in page 1, line 20, at end insert—
`This Act shall not apply to any land situated within a conservation area'.
No. 60, in page 1, line 20, at end insert—
`() Nothing in this Act shall apply to a hedge growing in a National Park'.
No. 62, in page 1, line 20, at end insert—
'() Nothing in this Act shall apply to a hedge growing in a cemetery or burial ground'.
No. 68, in page 1, lime 20, at end insert—
`() This Act shall not apply to any land situated within a rural area'.
No. 70, in page 1, line 20, at end insert—
`() This Act shall not apply to any tree which is protected by a tree preservation order'.
No. 59, in page 1, line 20, at end insert—
`() Nothing in this Act shall apply to a hedge growing in public open space'.
No. 61, in page 1, line 20, at end insert—
`() Nothing in this Act shall apply to a hedge growing within the curtilage of a school or other educational establishment'.
No. 58, in page 1, line 20, at end insert—
`() Nothing in this Act shall apply to a hedge situated within 3 metres of any public highway.'.
No. 51, in page 1, line 22, leave out subsection (4).
No. 41, in page 1, line 22, at end insert—
`() This Act shall only apply to hedges which were planted or otherwise came into existence after the commencement of the Act.'.
No. 3, in page 2, line 6, at end insert—
`or prospective owner or occupier.'.
No. 69, in page 2, line 12, at end insert—
"'rural area" means any ward or postcode sector which is outside a settlement of 10,000 or more people'.
No. 8, in clause 3, page 2, line 27, leave out 'wholly or mainly'.
By inserting the word "adjoining", the Bill would apply only to complainants with hedges in properties adjoining them. It would reduce its scope and extent and remove a big concern and alarm that was flagged up in the brief Committee stage. There are many amendments, and I shall endeavour to get through them as quickly as possible.Amendment No. 77 would restrict the right to complain to owners or occupiers of properties that are in occupation and are not empty. Again, that amendment is supported by the hon. Member for Hendon (Mr. Dismore), and his amendment No. 92 is in similar terms. Amendment No. 55 is important and would require that no complaint should be entertained if the complainant's property was constructed after the hedge was established. Similarly, under amendment No. 41, the Act
Introducing retrospectivity is most unhealthy. Were this a planning Bill, for example, it would not operate retrospectively: that which had already been built could be left where it was, which is exactly what happened under the Town and Country Planning Act 1947. That is a standard principle of planning law. When I discussed the Bill with Baroness Gardner of Parkes, she reminded me of an example in south Buckinghamshire where a specific planning condition had been placed on the development of a property on the basis that a new hedge could not be planted that would reach above a specified height—I think that her example was 3 m. That applied, however, to hedges in the future rather than hedges that are already in existence. That is the nature of good legislation and good regulation, and the power to take such action already existed under planning law. Powers also exist through the use of covenants, which have been used effectively as a means of ensuring that high hedges are not grown in the future on estates being developed, whether in urban areas or in the countryside. Amendment No. 71 would exclude application of the Bill to any land in a conservation area. That is important because at the moment tree preservation orders automatically apply to trees in conservation areas. Under the Bill, that legitimate control over those trees would be removed, which should cause a great deal of concern. People who buy properties in conservation areas, which are designated by local authorities in their discretion, might suddenly find that, under the Bill, trees that in their view add to the amenity of the neighbourhood and the value of their homes could be ordered to be chopped down without their even being notified about it. Interestingly, in relation to any complaint being raised, the guidance to local authorities is that the matter should be kept quiet and not publicised. By contrast, were there an application to reduce in size a tree in a conservation area or prune it in any way, neighbours who were directly affected would have to be notified. Amendment No. 60 would exclude the application of the Bill to national parks. Again, I would have thought that a sensible proposal. I do not yet have to declare an interest in relation to that, because the New Forest national park has not yet been designated, although it is apparently the Government's intention to do so. Amendment No. 62 would restrict the ambit of the Bill so that it would not apply to cemeteries or burial grounds. That is a significant issue, as we know that many ancient cemeteries and burial grounds have well-established yew trees, some of which are up to 40 ft high. Those may result in neighbouring gardens being put in the shade, and not being able to get the evening sun or even the midday sun. Are we really saying, however, that those yews, which are part of the English heritage, could be ordered to be cut down to 2 m on the complaint of somebody living nearby? Amendment No. 59 would likewise restrict the ambit of the Bill so that it would not cover trees or hedges growing in public open space. Amendments Nos. 68 and 69 certainly deserve consideration by the House. They would restrict the Bill's ambit so that it did not cover rural areas. I asked the Library to supply me with a legislative definition of a rural area, but there is no such definition. I understand that the Government are working on one and have promised to produce it by the autumn. In the meantime, the best definition is that in amendment No. 69. If the Bill's application were restricted so that it did not apply to rural areas, our concerns would be reduced considerably."shall only apply to hedges which were planted or otherwise came into existence after the commencement of the Act."
I know that the amendment would not deal with my right hon. Friend's constituency, as probably none of it is made up of postcodes inside a rural area.
Many of the other amendments in the group probably would have a bearing on my constituency, but I am a bit anxious when I hear my hon. Friend say candidly to the House that this amendment may not contain a satisfactory definition of what is at its kernel. He is almost asking us to take on trust something as important as the definition of a rural area. Is he satisfied that the definition that we have or might have would not give rise to unacceptable anomalies on the borders between rural and adjoining areas? Can he give me that assurance?
I cannot give my right hon. Friend that assurance, because despite having considered the issues carefully, I accept that I have not dealt with the borders between rural and urban areas. Indeed, he has identified a further lacuna in the Bill. It would not cover cases in which the complainant is in one local authority area and the trees and hedges about which he is complaining are in another.
My hon. Friend is now dealing with a whole new sector of the Bill, so I ask him to think carefully about these amendments. He knows, as I do, that there are many problems with high hedges in rural areas. In an effort to get the Bill through this morning, I hope that he will consider not pressing these amendments.
I have not yet even come to all the amendments. I do not think the prospects of the Bill making progress this morning are terribly great, but it is possible that it will be reconsidered on 4 July and, if its proceedings are not completed then, on 11 July. I hope that my hon. Friend will be present in the House on the occasions when we can consider this and other groups of amendments further. People might think that the Bill is lost because we have not reached all the groups of amendments today, but that is largely the result of the fact that it appeared on the Order Paper immediately after another Bill, the consideration of which we knew would take some time.
My hon. Friend has raised a number of very important points this morning. I urge the Bill's promoter and the authorities in the House seriously to consider listing the Bill so it can be debated on another Friday. I hope that it will become an Act.
My hon. Friend's sentiments are shared by my hon. Friend the Member for Gainsborough (Mr. Leigh) and myself. That is why we were disappointed that the Bill was not set down for a day on which it could have appeared first on the Order Paper. It would have appeared first if it had been put down for debate on 4 July.Amendment No. 70 deals with tree preservation orders. I do not think that the Bill should override them. If it is thought that a tree that is subject to a tree preservation order should be chopped down, the first thing to do should be to go to the local authority and get permission to cut it down or prune it under the tree preservation order legislation. Amendment No. 61 proposes that the provisions should not apply to any hedge growing in the curtilage of a school. This is relevant to the issue of peeping toms, and to schools that grow hedges in order to stop people looking at schoolchildren in a state of semi-undress. Time is running out, but I am sure that we shall have time to come back to this issue on 4 July.
It being half-past Two o'clock, the debate stood adjourned.
Debate to be resumed on Friday 4 July.