Hedge Cutting, who is responsible?

Postby aixlad » Sun Apr 16, 2006 11:45 pm

Conveyancer wrote:I am assuming the notice is addressed aixlad and not the neighbour.


Correct, it's addressed to me :x

And like despair said, I feel that my neighbour who turned my neat, tidy, well maintained hedge into a 7m barrier is accountable in this case.

Maybe I should change my login ID to ASBOlad :oops:
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Postby despair » Mon Apr 17, 2006 1:49 am

I suggest you give a copy of the order to your neighbour along with 3 quotes from 3 tree surgeons

and tell your neighbour who it was who actually made the complaint to the council plus paid the fee and that you expect your neighbour to foot the bill for cutting the hedge or you will sue him for the cost in the Small Claims Court

I think he would have a hard time wriggling out of it if it comes to SCC
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Postby Treeman » Mon Apr 17, 2006 9:10 am

The short answer to this question is the owner of the hedge is responsible for it. The remedial notice can only be served on the owner of the hedge.

The neighbour who has allowed the hedge to grow has certainly caused you problems and expense but recovering expenses from them will be difficult.

I would go back to the person who issued the order and explain the situation. They might be willing to go and explain things to the high hedge side, who might then get the work done. A visit from officialdom often gets action.

If the other side of the hedge refuses to budge you will have to get the work done.

Bear in mind that we are well into the nesting reason and that it is an offence to disturb the nests of many species. Get your police wildlife officer involved for more information on that.

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Postby Conveyancer » Mon Apr 17, 2006 11:06 am

The high hedges legislation

…applies to a complaint which is made…by an owner or occupier of a domestic property; and alleges that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person.

It should be noted that the words refer to where the hedge is, not to who owns the hedge.

You have a boundary between the land of A and the land of B. A hedge has its roots in the land of A, but grows sideways so that it encroaches onto the land of B. Whilst it may be correct to say that A is the owner of the hedge, it surely cannot be correct to say that that part of the hedge which encroaches onto the land of B is situated on land owned by A.

Accordingly it seems to me that if a third party, C, is affected by the hedge the proceedings should be directed against both A and B, or in a case where the height is a problem on only one side or the other, against A or B as the case may be.

I suspect that the draftsman of the act had in mind that complaints would arise in respect of hedges between properties. In such cases it is reasonable to suppose that a complainant will allow the owner of the hedge to have access (whether to go onto his land or reach into it from the other side) to comply with an order; if he fails to allow access where it is necessary he can hardly complain of a failure to comply.

In a case where proceedings involve A and not B, I can see nothing in the act which allows the local authority to authorise a trespass.

If, notwithstanding a lack of consent, A trespasses and cuts back the hedge where it encroaches into the land of B, I do not think it is a foregone conclusion that B will have to bear the expense. First, he can argue that he did not authorise and was not obliged to authorise the trespass and, secondly, that it would be oppressive for him to be required to comply with a remedial notice in respect of which he did not have an opportunity to be heard.

It seems to me therefore that the local authority made a mistake in issuing the remedial notice. First, they followed the complaint against the wrong landowner and, secondly, they require an act of trespass to be committed. Point this out to the local authority and ask them to withdraw the remedial notice, which they have power to do under section 70. If they decline to do so, appeal the remedial notice.
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Postby andrew54 » Mon Apr 17, 2006 11:30 am

Conveyancer wrote:It seems to me therefore that the local authority made a mistake in issuing the remedial notice. First, they followed the complaint against the wrong landowner and, secondly, they require an act of trespass to be committed.


But here we have a situation where aixlad can remove the offending high growth without trespassing into his neighbours land. The base of the trunk is on aixlad's land, the offending high growth is into his neighbours airspace. If aixlad cuts all growth exactly on his boundary then the high growth will be removed.

And although the high growth is into next doors airspace I would still argue that the hedge, taken as a whole, is situated on land owned by aixlad.

The hedge is nothing to do with the neighbour. He didn't plant it. He doesn't own it. He has no duty to maintain it.
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Postby Conveyancer » Mon Apr 17, 2006 1:16 pm

andrew54 wrote:If aixlad cuts all growth exactly on his boundary then the high growth will be removed.


Depending on the way the hedge is growing, this may involve reducing the height of the hedge below 2 metres, which the act specifically says is not to be required.
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Postby aixlad » Mon Apr 17, 2006 1:46 pm

Conveyancer, some good points there, I very much appreciate your interest and neutral, common sense approach. :D

andrew54 wrote:And although the high growth is into next doors airspace I would still argue that the hedge, taken as a whole, is situated on land owned by aixlad.

Possibly, but I could guess with reasonable accuracy that currently, approximately 10% of the whole volume of the trees are in my garden (because I cut my side), and the other 90% of the volume occupies my neighbours garden! So even though I am the grower, how can I be held responsible for what my neighbour does the other side of the fence? They've never requested that I trim their side, although I did verbally offer some years ago.

andrew54 wrote:The hedge is nothing to do with the neighbour. He didn't plant it. He doesn't own it. He has no duty to maintain it.

With respect, I very much appreciate your helpful comments, and no offence is intended, but I think you've missed the point here. My neighbour has intentionally allowed his side of my trees to grow in order to provide a privacy screen to suit his own purposes. The trees I planted were never intended to gain any more than 2m in height.

andrew54 wrote:He has no duty to maintain it.

So you are saying that he has no reasonable duty of care to ensure that his side of the trees are maintained?

Conveyancer wrote:…applies to a complaint which is made…by an owner or occupier of a domestic property; and alleges that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person.

I think this statement sums up why I feel the Council has wrongly issued me with the Remedial Action notice.

Thanks for all the comments :D
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Postby andrew54 » Mon Apr 17, 2006 3:44 pm

aixlad wrote:
andrew54 wrote:The hedge is nothing to do with the neighbour. He didn't plant it. He doesn't own it. He has no duty to maintain it.

With respect, I very much appreciate your helpful comments, and no offence is intended, but I think you've missed the point here.


No I haven't missed the point, I was just showing how the situation might be looked at by some people in officialdom.

aixlad wrote:So you are saying that he has no reasonable duty of care to ensure that his side of the trees are maintained?.


Yes, that is what I am saying. I might not be right, but it is difficult to see that he has a duty to do anything to your hedge.

.
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Postby aixlad » Mon Apr 17, 2006 6:12 pm

aixlad wrote:
andrew54 wrote:The hedge is nothing to do with the neighbour. He didn't plant it. He doesn't own it. He has no duty to maintain it.

With respect, I very much appreciate your helpful comments, and no offence is intended, but I think you've missed the point here.


andrew54 wrote:No I haven't missed the point, I was just showing how the situation might be looked at by some people in officialdom.


Yes, I see your point, officialdom are not always the sharpest of the bunch :D

aixlad wrote:So you are saying that he has no reasonable duty of care to ensure that his side of the trees are maintained?.


andrew54 wrote:Yes, that is what I am saying. I might not be right, but it is difficult to see that he has a duty to do anything to your hedge.


It's not unreasonable, infact it's their common law right to trim off any overhanging branches on their side, and if they don't wish to exercise this right then they can always ask the grower to trim it if they allow access across their land. However, to request it is trimmed after 10 years of being left to grow freeIy I feel is unreasonable, given the magnitude of the task. What used to be a 10 minute Saturday morning DIY trimming job, is now an expensive half days work for a professional. In this respect I feel they have a duty of care.
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Postby Conveyancer » Mon Apr 17, 2006 6:40 pm

Andrew is right. There is no obligation on a neighbour to trim a hedge on his side. It is only reasonable when there is no obligation on the owner of the hedge to trim on his side, subject of course to the High Hedges legislation.
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Postby despair » Mon Apr 17, 2006 7:09 pm

Which Council have ordered it to be reduced from 7 metres down to 2 metres because theres a fair complaint going on with Hedgeline members that councils are only ordering 1/3 off hedges on a claim/advice from OPDM that it will harm the hedge to reduce furthur


You can imagine the distress this is causing some victims who have been faced with fees of £650 for administering High Hedge Law
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Postby Conveyancer » Mon Apr 17, 2006 7:55 pm

The "one third" rule is not a hard and fast rule – see this page of the ODPM’s information:

http://www.odpm.gov.uk/index.asp?id=1127837#TopOfPage

Only one council is charging £650 and two £600. The average fee is £344. I think it is reasonable to charge a fee to discourage frivolous complaints and to encourage agreement, but I think that on the whole the level of fees is too high. I think the best system would be a refund if the complaint is successful.
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Postby despair » Tue Apr 18, 2006 12:12 am

Thanks forposting that link Conveyancer .....not seen that page before

Average fee of £344 is of little comfort to those who are charged £500/£600/£650

I agree that the fee should be refunded to the complainant if they win and it should be levied on the hedge grower who after all will have had plenty of opportunity to reduce the hedge amicably beforehand by virtue of the proceedures required which should have included at least a request for mediation
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Postby TO » Tue Apr 18, 2006 8:31 pm

Hi

The person who is responsible for carrying out the works to the hedge specified in the Remedial Notice is the hedge owner.

The hedge owner is responsible for the costs involved.

The hedge owner is the person on whose land the hedge is growing on, or as it puts it in the Act situated on. Even that portion of the hedge that over hangs the neighbours boundary belongs to the hedge owner. That we are surely all agreed on.

Thats you Aixlad.

What this really seems to boil down to is that although you have had every opportunity to resolve the high hedge issue you won't because you don't want to spend money maintaining your hedge at a reasonable height.

Failure to comply with the Remedial Notice is a criminal offence punishable in the first instance with a fine of up to £1000.

I doubt your argument, that to comply with the notice will means you have to go onto your neighbours land and that is tresspass, won't get very far through the courts. You are after all abating the nuisance that the high hedge is causing and you have every right to go onto the neighbours land to abate the nuisance.

As for how high it has to be. You only need do the works specified in the Remedial Notice, whatever that might be.

You could try appealing of course but you could only appeal on the grounds that you used in the first instance in defence of the hedges height.

Dig deep and cough up. Your high hedge your responsibility.

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Postby aixlad » Tue Apr 18, 2006 10:48 pm

TO wrote:The person who is responsible for carrying out the works to the hedge specified in the Remedial Notice is the hedge owner. The hedge owner is responsible for the costs involved.


So you are saying that the owner of the trees is always responsible, whatever airspace they occupy, and whoevers land they have grown into? And that a Remedial Action Notice can ONLY be issued to the grower?

Surely the Remedial Action Notice can be issued to any person who owns or occupies the land where the High Hedge is situated (see Conveyancer's earlier comments). Following on from that point, how can the grower be responsible for costs if the Remedial Action Notice has been issued to someone else?

I value your comments, but find them somewhat puzzling :?
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