Communities and Local Government

• Planning, building and the environment
• Planning
• Trees and High Hedges
• High hedges
• FAQs on high hedges
• Remedial works

Planning, building and the environment

Remedial works

Who does the Council serve a remedial notice on?
The Council does not serve a remedial notice on a particular person. This is because it runs with the land on which the hedge is growing and is binding on all future owner and occupiers. The notice must be registered as a local land charge so that prospective buyers of the property are aware of the obligation they will be taking on.

Can the Council only require the height of the hedge to be reduced?
No. The Council can order whatever works to the hedge they consider necessary to remedy the problems it is causing and to prevent them from recurring. Reducing the height of the hedge along the whole or part of its length is only one solution. Other options include crown lifting, crown thinning, retaining selected trees or phased works. It is important that Councils obtain arboricultural advice to help them identify the right management solution.

Can a remedial notice be issued that only includes preventative action to a high hedge?
A remedial notice can only be issued where the Council have decided that the height of the hedge is adversely affecting the complainant's reasonable enjoyment of their property. The notice states what action must be taken in response to the hedge problems identified in the particular case. This may include action to prevent those problems recurring (preventative action).

Where the Council decide that a hedge is not currently having an adverse effect, they have no power to require any works to the hedge. There is no question, therefore, of issuing a notice solely to indicate to a hedge owner that they should not let their hedge grow over a certain height in order to avoid future problems.

This may be frustrating where, after years of wrangling and submission of a formal complaint, the owner reduces the hedge just before the investigating officer from the Council visits. However, the Council's hands are tied and there is nothing they can do - other than offer advice about future maintenance of the hedge.

Why does Communities and Local Government guidance advise Councils that they cannot order remedial works that would kill a hedge?
In the Government's view this would amount to the same as removing the hedge altogether and, under section 69(3) of the Anti-social Behaviour Act 2003, Councils are expressly prevented from ordering action involving removal of a hedge. Requiring removal of a high hedge would represent a disproportionate response to the problem.

But Communities and Local Government guidance (paragraph 6.24 of High Hedges Complaints: Prevention and Cure) compounds the problem by stipulating that only one third of a healthy hedge can be taken off safely.
There may be some misunderstanding here.

How far you can reduce a hedge before you kill it will vary according to the particular circumstances. To illustrate the point, the Communities and Local Government guidance gives the example of a healthy Leyland cypress hedge which will usually respond well to a reduction by up to one-third whereas an older specimen may not. There will be circumstances where Leyland cypress, or other species, may be reduced by more than one-third without destroying them.

For these reasons, we recommend that Councils consider each case on its merits and obtain arboricultural advice.

So how much can you reduce a hedge before you kill it?
This will depend on the species, age and health of the hedge. Past management will also be a factor. So it comes down to a professional judgement of whether the remedial works proposed in a particular case could result in the death of the hedge.

 If so, local Councils might suggest cutting the hedge in stages over several seasons.

If that is not feasible, they might need to modify the remedial action to ensure the hedge survives.

Does this mean that a remedial notice might specify a hedge height that would ensure its survival but not fully address the issues raised in the complaint?
This and other considerations, such as preserving the hedge owner's amenity, could mean that the remedial notice does not fully remedy the problems identified in the complaint. Such an outcome is inevitable given the constraints of the legislation and that a Council's role in these cases is to seek a balance between the various interests involved.

But doesn't this undermine the legislation?
The legislation is about striking an appropriate balance between the interests of the complainant and the hedge owner.

While there may be some cases where Councils might be prevented from requiring action to the hedge that would provide a full remedy to the problems identified, nevertheless they should still be able to order works that offer some relief to the complainant.

In addition, the legislation is helping all those who are now managing to resolve their hedge disputes voluntarily, without involving the Council.

Surely there is no balance here. Everything is stacked against the victim who might have paid a lot of money for the Council to consider their complaint.
While people might feel let down if the Council agree the hedge is causing problems but can't fully remedy them because the hedge wouldn't stand it, nevertheless this will not apply in all cases. And it remains the Government's view that taking away someone's hedge would be a disproportionate response to these disputes.

But this fails to protect the interests and human rights of the individual who is affected by a high hedge. Shouldn't they be given more consideration?
There are two separate 'human rights' decisions here.

When Councils are deciding complaints, they need to carry out the balancing exercise that is central to safeguarding human rights. This involves trying to secure a reasonable balance between the interests of the complainant, on the one hand, with those of the hedge owner and the wider community (eg public amenity) on the other. This exercise has to be carried out within the confines of the law which - as discussed above - constrains what Councils can do by way of remedy.

When we were considering the content of the legislation, however, we had to take a broader view. We had to consider whether (under Article 1 of the First Protocol) it was in the public interest to deprive someone of their property/possessions (ie hedge). There were several reasons why we felt this could not be justified. First, such action tends to be used primarily to deprive people of the proceeds of criminal activities - and there is no law against growing a high hedge. Secondly, most hedge problems can be remedied by reducing the hedge rather than removing it entirely. So legislating to allow removal of a hedge would be a disproportionate response to the problem.

What if the remedial works won't kill the hedge but will make it look daft?
So be it - unless the hedge makes a contribution to wider amenity. See the advice in paragraph 6.32 of High Hedges Complaints: Prevention and Cure.

Will you now withdraw paragraph 6.24 of High Hedges Complaints: Prevention and Cure from Communities and Local Government guidance?
While this might seem a simple solution, withdrawing the relevant paragraph would make no practical difference. The constraint on the extent of remedial works that Councils can order arises from the terms of the Act itself, which remains in place.

If someone wishes to challenge our interpretation of the legislation, they would need to find a suitable case on which they could make an application to the High Court for judicial review of the decision. Only the Courts can provide definitive interpretation of legislation.

What can Councils do when removing the hedge is the best solution?
It remains open to the hedge owner to go further than the remedial notice requires and to remove the hedge entirely if they want.

Where Councils cannot order action that would provide a full remedy to the adverse effects of a hedge, they might wish to make clear in their decision letter that the circumstances justify a lower hedge height. In these cases, or where the end result may look daft, the Council can recommend that the owner consider removing the hedge entirely.

What can people do if Councils stick to the one third rule?
There are safeguards within the legislation if a complainant considers that more drastic action than that specified in a remedial notice could be taken without destroying the hedge. In these circumstances, they can appeal against the Council's decision to the Planning Inspectorate.

How many cases have there been where Councils have modified their decision because of the one third rule?
The Government is not collecting information centrally on the operation of the high hedges legislation.

But whether or not remedial works will kill a hedge will not be an issue in all cases. In some cases, Councils will decide that no remedial action should be taken. In others, the extent of works required to remedy the problems caused by the hedge will clearly not harm it.

Why wasn't Hedgeline consulted on this aspect of Communities and Local Government guidance as promised?
We are sorry Hedgeline feel that they were not consulted on this issue. Nevertheless they and other organisations were consulted on the draft guidance, as promised when the legislation was before Parliament.

The Government acknowledges that the draft guidance did not contain the text that now concerns Hedgeline. It was inserted in the light of comments received in response to the consultation which queried what would happen if remedial action led to the death of the hedge.

The current guidance makes transparent how Councils should deal with these matters.

Doesn't the British Standard that relates to tree works also say that trees should not be reduced by more than one third?
Although the British Standard on Tree Works (BS 3998:1991) states that "the leaf area to be removed should not normally exceed 30 per cent of the original coverage", this relates to the operation of crown thinning. It also says that such an operation "should usually be confined to broadleaf species".

Elsewhere the Standard suggests that "very substantial crown reductions should, ideally, not be made during a single growing season". In suitable cases, therefore, Councils might suggest cutting the hedge in stages over several seasons.

But can Councils enforce this staged cutting?
While Councils can take enforcement action if the hedge is not reduced to its final height within the overall period set, they cannot enforce the timing of the individual stages.

It is, however, open to them to send warning letters when a stage has passed without action being taken. This could include the specific warning that, if the owner doesn't reduce the height of the hedge gradually, through a series of cuttings, but leaves it to be carried out in one operation then the hedge might die.

If the hedge dies after the works set out in the remedial notice have been carried out, does the owner have a right to compensation?
The owner would have to make a claim for damages against the Council through the civil courts. They would need to show that the Council had been negligent. This is a complicated area of the law and so anyone contemplating such action should seek their own legal advice.

Can a remedial notice include conditions - eg requiring the work to be carried out to a certain standard?
No, the Council cannot attach conditions to a remedial notice. They might offer good practice advice with the notice or include it in an "informative". But as the name suggests, this would be for information only and cannot be enforced.

Can the hedge owner carry out more work than that specified in the remedial notice?
It is open to the hedge owner, at any time, to do more than the remedial notice requires - unless other legal restrictions apply. For example, if the trees in the hedge are protected under a tree preservation order or it is in a conservation area.

Is a remedial notice still valid if trees are removed so that it no longer meets the legal definition of a high hedge?
In our view if trees are removed which take the hedge outside the legal definition of a hedge, the remedial notice is unenforceable. If for example a two-tree hedge were reduced to one tree, under the legislation this would be classed as a single tree and therefore could not be the subject of a complaint or a remedial notice.

What if the hedge owner removes the hedge and plants a new one in its place. Do the requirements in the remedial notice apply to the new hedge?
No. The remedial notice applies only to the hedge that was the subject of the original complaint. If the replacement hedge is evergreen and, in time, grows to such a height that it adversely affects a neighbouring property, a fresh complaint would have to be made.

I cannot afford to do the work. Can I get a grant to help pay for the work?
There are no general grants available to help with the costs of carrying out the work specified in a remedial notice. Nor can the Council take this into account in determining a complaint under the legislation. As a general rule, such expenses must be expected and accepted as part of the general maintenance of your property - in the same way as the costs of maintenance of doors and windows and household wear and tear.

Can a Council issue a remedial notice in respect of a hedge that it owns - ie against itself?
Yes, a Council can issue a remedial notice in respect of a hedge on land that it owns. But, as a single legal entity, the Council could not take enforcement action against itself. This does not, however, prevent someone else seeking to enforce such a notice. Equally, someone could complain to the Chief Executive or the Ombudsman if the Council failed to comply. Hopefully, no Council would get to the position where it breached its own remedial notice.