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Clause 1

Volume 407: debated on Friday 20 June 2003

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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).

    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.

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    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

    "does not apply to hedges more than 10 metres from the complainants house".
    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
    "alleges that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge",
    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
    "an unreasonable obstruction of light caused by"
    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.

    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.

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    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.

    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
    "shall only apply to hedges which were planted or otherwise came into existence after the commencement of 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.

    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.