Planning, building and the environment

Fees

Who in the Council decides what fee should be charged for dealing with high hedge complaints?
Responsibility for deciding how much the fee should be, and the policy on such matters as discounts and refunds, rests with the full Council. They can delegate the decision to a committee or sub-committee, or to Council officers, if they wish.

Is VAT payable on the fee?
No. If a Council charges a fee for providing a statutory service then this is considered as non-business, and therefore outside the scope of UK VAT.

This is in accordance with EC Sixth Directive 77/388 4(5) which states;

...regional and local government authorities and other bodies governed by public law shall not be considered taxable persons in respect of the activities or transactions in which they engage as public authorities, even where they collect dues, fees, contributions or payments in connection with these activities or transactions.

Why should the person who is suffering the hedge problems have to pay the Council to intervene?
The Anti-social Behaviour Act 2003 states that complainants must pay a fee to the Council when they submit their hedge complaint. There are several reasons why we think this is fair and reasonable:

Most people who responded to questions about fees in the 1999 consultation High hedges - possible solutions thought it was fair that the complainant should pay something for the Council to intervene in their hedge dispute.
Payment of a fee will encourage people to try to settle these disputes amicably, making sure that involvement of the Council really is a last resort.
A fee also helps to deter frivolous or vexatious complaints.
It is common practice for Councils to charge a fee for a service which is likely to benefit an individual (in this case, the complainant) rather than the community in general.

But the complainant is the innocent party in this dispute.
It is important to understand the way the legislation works. It allows Councils to review these cases, as independent and impartial third parties. Authorities are not investigating any offence - none has been committed, even if a complainant 'wins' their case - and so the legislation does not deal in innocent or guilty parties. As a result, the fee is a payment for a service - not a penalty.

How can there be no offence: it's anti-social behaviour?
There is no special significance in the high hedges provisions being included in the Anti-social Behaviour Act 2003. It simply provided a suitable opportunity, and vehicle, to get the high hedges legislation onto the statute book after several unsuccessful attempts through Private Members Bills. Certainly, the Act makes no provision for an Anti-social Behaviour Order to be served on the hedge owner. And no offence is committed until such time as a hedge owner fails to implement a Council's order to carry out works to the hedge to remedy the problems it is causing.

Can I reclaim the fee from the hedge owner?
There is no procedure under the Anti-social Behaviour Act 2003 for the complainant to obtain re-payment of the fee, either from the Council or from the hedge owner.

People have asked about taking their neighbours to the small claims court. This is the special procedure for handling smaller claims in the county court. It can be used for most claims for £5,000 or less and so, on the face of it, the procedure may apply to reimbursement of the fee for making a complaint about a neighbour's high hedge. However, issuing a claim at court should be a last resort. People should have tried other ways of settling the matter; for example, by writing to their neighbour to ask for recompense.

Further information is contained in the leaflets Making a Claim (Leaflet EX301) and The Small Claims Track (Leaflet EX307) available from the county court and at www.courtservice.gov.uk (external link). Court staff can advise on the procedures, provide the necessary forms and help people to fill them out, but the final decision rests with the judge. So, court staff cannot tell someone whether or not they have a good claim or comment on their chances of success. People may be able to get free legal advice from a law centre to help them with this.

Why is the Council charging anything when the Government has given them extra funding for this?
There are well-established procedures for assessing the financial burdens imposed on Councils by new initiatives and for providing appropriate resources through the revenue support grant settlement. In following these procedures, the Government will have taken a view on what portion of the costs to Councils of administering the legislation should be provided through additional grant and what might be met through the fees to be paid by complainants.

Whatever view Government might have taken on the matter, this is not, however, binding on Councils. When any grant reaches authorities, it is up to them how they spend it - based on their judgement of local needs and circumstances, and their overall financial priorities. In addition, it is for each Council to decide what they charge for determining high hedge complaints. The practical effect, therefore, is that Councils are free to choose whether they pass on to complainants, through the fee, the full costs of providing this service, or whether they fund a portion either from central Government grant or through council tax.