HC Deb 07 April 2003 vol 403 cc86-110

Queen's recommendation having been signified—

7.28 pm
The Parliamentary Under-Secretary of State, Office of the Deputy Prime Minister (Mr. Tony McNulty)

I beg to move, That, for the purposes of any Act resulting from the High Hedges (No. 2) Bill ('the Act'), it is expedient to authorise the payment out of money provided by Parliament of—

  1. (1) any expenses incurred by the Secretary of State in consequence of the Act; and
  2. (2) any increase attributable to the Act in the sums which are payable out of money so provided by virtue of any other Act.

First, I am enormously grateful to be speaking to this money resolution at this hour. I have looked through a previous debate when a ministerial colleague had to wait until five minutes to two in the morning before moving the motion. Secondly, I must offer the House the apologies of my hon. Friend the Member for Ealing, North (Mr. Pound), the proposer of the Bill, who cannot be here this evening. He sends his love and best wishes.

The motion relates to a private Member's Bill promoted by my hon. Friend. The Government support the Bill; it will bring relief to thousands of people in England and Wales whose quality of life has been blighted simply because they cannot persuade their neighbours to cut back hedges to a reasonable height.

The measure will give people the opportunity to refer their hedge disputes to their local authority. The local authority will consider whether the hedge causes a serious problem and will be afforded the means to ensure that those bringing cases have exhausted all other channels, thus preventing capricious or vexatious claims. The local authority will be given powers, in appropriate cases, to require the owners of hedges to cut them back to a reasonable height and to ensure that they have done so.

The Bill also provides right of appeal to the Secretary of State or the National Assembly for Wales against a local authority decision. The complainant as well as the hedge owner can exercise those rights.

Our assessment of the financial implications of the Bill reflects responses to the consultation held in 1999 and subsequent discussions with local authorities and the Local Government Association. It has been assessed that there is a backlog of 10,000 cases, which would cost £3 million to deal with over three years, and we think that is right.

I commend the motion to the House.

7.30 pm
Mr. Philip Hammond (Runnymede and Weybridge)

As the Minister implies, there is general support for the Bill on both sides of the House. The measure has had a long genesis, with the active involvement of Members on both sides of the House.

It appears that the Government have thrown their weight firmly behind the Bill. We have heard many protestations of their intention to legislate when time allowed. There have been pamphlets, but so far, no legislative action, and the Government have chosen to achieve their stated objective by providing support for the reincarnation of a private Member's Bill that has already gone around the loop.

Will the Minister explain why the Government have decided that a stand-alone Bill is the only way to deal with the issue? Why could not it have been dealt with under the Planning and Compulsory Purchase Bill that he recently took through the House?

The Government support the Bill and will provide time for it to proceed to Committee where we shall have the opportunity to explore some of the remaining issues and to knock some of the rougher edges off the proposals. It is important to note that the measure will not ban high hedges; it is designed to provide a resolution mechanism when high hedges are the cause of dispute between neighbours.

Several important issues remain to be ironed out in due course. We need to weigh up the benefits and disbenefits of high hedges. They are often intrusive and cause loss of light and loss of aspect, but they also provide privacy. My constituency postbag is mixed. Some constituents are concerned about the implications for loss of privacy.

We shall want to probe the necessity for criminal sanctions in legislation such as this. There is a body of opinion that such sanctions are not really appropriate in these circumstances.

We need to discuss the degree to which there has been prior effort to negotiate before a complaint will be taken up by a local authority. For example, would it be considered appropriate or necessary in certain circumstances for a potential complainant to have offered to carry out the work themselves, perhaps where the landowner is elderly, disabled or otherwise unable to carry out any required remedial work? We are all anxious that the measure should promote negotiation and consensus, although, on Second Reading, the Minister noted that he was not necessarily a fan of consensus solutions.

We shall need to consider whether objective tests are to be set down, perhaps in a code of conduct. I shall also want to question the Bill's promoter on the definition of high hedges. The Bill specifies 2 m, but if we had been considering the measure 15 or 20 years ago that figure would have been 6 ft or 8 ft. How was the figure of 2 m arrived at? Is it an accurate figure or simply a rounding up?

The framing of such provisions will have an impact on the cost of the Bill in relation to the amount of local authority involvement and the number of times that local authorities will be required to intervene. Clause 20 provides for a change in the definition of high hedges and the scope of clause 1 by secondary legislation. That, too, could have a significant impact on the cost of the Bill—

Madam Deputy Speaker (Sylvia Heal)

Order. The hon. Gentleman is now coming back to the costs of the Bill—I was hoping that he would do so.

Mr. Hammond

Thank you, Madam Deputy Speaker.

The intention—the hope—is that many disputes will be resolved without the necessity for local authority intervention. The more the legislation is drafted in a way that encourages that intention, the less local authorities will have to intervene, the fewer appeals will be amounted, and the lower will be the cost to public funds. However, I am alarmed that the kernel of the Bill—the definition of a high hedge—could be changed subsequently by secondary legislation, with a commensurate increase in the cost burden.

All those issues can be properly addressed in Committee. They are worthy of detailed exploration and with good will on both sides they are capable of resolution so that we end up with a robust piece of legislation. We shall not oppose the motion, but I have some questions for the Minister on the financial aspects of the Bill and the regulatory impact assessment.

There are two main costs to public funds: the costs to local authorities of undertaking the primary work on dispute resolution; and the costs of the authority that deals with appeals. The explanatory notes suggest that there may be a backlog of 10,000 unresolved hedge disputes. As several Members suggested on Second Reading, that may be a serious underestimate. At present, there is no resolution mechanism, other than negotiation with neighbours, and I suspect that the number of disputes to be resolved will be substantially higher.

The regulatory impact assessment suggests that the cost of resolving the estimated 10,000 disputes in the pipeline would be about £3 million, or £300 per dispute. Anyone who has been involved with contentious local planning issues might consider that that reflected a rather optimistic view of the speed with which such matters are resolved. Much officer time is likely to be used up dealing with and intervening in such disputes.

The RIA notes that the cost per dispute will be offset, to some extent, by the fee chargeable to the complainant. Can the Minister indicate his Department's current thinking about the likely amount of that fee and thus the degree to which public funds would be offset?

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? On Second Reading, my hon. Friend the Member for Christchurch (Mr. Chope) referred to a local authority in his area that was not in receipt of formula grant and would thus not benefit from generalised funding. It would benefit only if the money were targeted on authorities doing such work.

The second source of cost to public funds is the appeals procedure. The Government have estimated that 20 per cent. of complaints might give rise to appeals. That is a tremendously optimistic underestimate. The form that the right of appeal will take is somewhat akin to introducing a third party right of appeal to the planning procedure. The right of appeal will be open not only to the complainant whose complaint is turned down, but to the defendant—the landowner who is required to take remedial action. Assuming—as the wording of the Bill and the explanatory notes require us to assume—that complainants will be required to have exhausted normal negotiating and dispute resolution procedures, the cases that come to local authority determination will be the hard cases where people have deeply entrenched and hardened views. I suggest to the Minister that many more than 20 per cent.—perhaps more than 50 per cent.—of those cases are likely to go to appeal unless there is a substantial financial disincentive to the losing side to take a case to appeal. Will the Minister clarify whether the Government intend to create a financial disincentive through a costs regime and, if so, whether he agrees that the 20 per cent. estimate is likely to prove very conservative?

I note that the regulatory impact assessment says that the average cost per appeal is estimated to be £1,100, and there is a suggestion that no more than three or four hours of inspectorate time would need to be spent on an appeal. That presumably implies that it is envisaged that the inspector conducting an appeal would not need to make a visit to the site. Has the Minister satisfied himself that an inspector making a decision without visiting the site would constitute the independent tribunal to which human rights legislation provides an entitlement?

Can the Minister tell the House whether he has made any estimate of the likely cost to local authorities of carrying out remedial action themselves? I am aware that where they have to do so they will register a charge over the property in question as they currently do, for example, in dealing with derelict land. However, it may be a very long time before there is a transaction relating to the land that enables them to recover that cost, and in the meantime that is a revenue cost that has to be funded. I do not see any estimate in the regulatory impact assessment of the direct costs to local authorities of carrying out the remedial work.

I suggest to the Minister that the cost to the public purse, if local authorities are properly funded for carrying these responsibilities, and before any net-off of fees received, could easily be much higher than the regulatory impact assessment suggests—let us say, given a backlog of 20,000 cases rather than 10,000, and a more realistic estimate that the cost of dealing with a case will be £600 per case, that it might be £4 million or £5 million In the first three years. If 50 per cent. of those cases went to appeal, with an appeal cost of between £1,000 and £2,000 per appeal, we would be looking at another £3.5 million to £8 million per year, with the cost of local authority remedial action on top. The cost might be somewhere in the region of £7 million to £20 million a year of public funds. I readily accept that in the context of public spending that is not a vast sum of money, but it will require funding, particularly proper funding for the local authorities that will primarily incur the costs.

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 that have to implement Parliament's intentions.

A number of issues remain unresolved. We look forward to debating and, I hope, resolving many of them in Committee. In the meantime, I hope that the Minister will make some comments in response to my specific questions on the money-related issues.

7.44 pm
Mr. Alan Meale (Mansfield)

First, I congratulate my hon. Friend the Minister, who presented a very good case. I am grateful to the Government for taking this action in supporting a private Member's Bill so as to pass legislation on this particularly important subject. I say that it is important not only because I have had to take up individual cases as an MP, especially in connection with the now infamous leylandii conifer tree, but because when I was at the Department I had to pick up the issue that had been cast aside by the previous Government, who said that nothing could be done in any way, shape or form to try to alleviate the problems connected with it. I am particularly grateful to my hon. Friend, who has worked assiduously to try to bring a resolution before the House and to encourage hon. Members to take it forward through a private Member's Bill.

In response to the hon. Member for Runnymede and Weybridge (Mr. Hammond), I believe that the Bill refers to a height of 2 m because that was viewed as the maximum eye-line for vision outside one's downstairs window. It is as simple as that. That was the mechanism that was introduced to the argument by local design planners.

Mr. Hammond

I think that the hon. Gentleman will find that the 2 m limit is already present in planning legislation about fences and boundaries. However, it was not 2 m in pre-metric days—it was 6 ft, which is somewhat less than 2 m.

Madam Deputy Speaker

Order. Perhaps we can now get back to discussing the additional costs to local authorities envisaged in the Bill.

Mr. Meale

Thank you, Madam Deputy Speaker.

I support some of the arguments advanced by the hon. Member for Runnymede and Weybridge about costs, which have been greatly underestimated. There is a reason for that. The figure of 20,000 is far below all the evidence that has been presented to previous Conservative Governments and, indeed, Labour Governments. There are thousands of these cases, especially concerning the more modern problem of the leylandii conifer. Local authorities know that it has been a problem in all matters connected with building land and local authority services for many years. We should not view this as something that has just arrived owing to the invention—in Britain, I may add—of a particular species of conifer tree. The conifer in question, which causes most of the despair among homeowners, is the leylandii conifer. Contrary to what has been suggested, it is not a foreign species from Canada, but a product from Wales that originated in the late 1800s. It has been around for a long time. I am pleased that the Government have managed to get out some sensible information to people who buy products that grow very quickly in their gardens, but my hon. Friend the Minister has realised that that is not nearly enough to deal with the scale of the problem that we face.

The hon. Member for Runnymede and Weybridge talked about costs. The costings that have been put forward are greatly underestimated. For example, the estimate of costs to people who take up cases is extremely low, given that this is ultimately a planning matter that follows the normal lines in terms of the rights of appeal of both parties—that is, under normal circumstances large numbers of people will take that course, which will run up high costs. One of the reasons why local authorities are now tied down as to whether they accept planning applications or seek to overrule them is that under best value they must first face up to the district auditor. If someone receives a wrong decision, then wishes to take their appeal further, the local authority has to estimate whether it is likely to win, as with any insurance policy, and how much money it might subsequently lose. In those cases, the cost is usually between £12,000 and £14,000. If 20 per cent. of cases go to appeal and the backlog is between 10,000 and 20,000, the cost will be enormous. However, I know that my hon. Friend the Minister will deal with those matters in Committee.

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 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 a disaster occurs.

I welcome my hon. Friend's fine work. The measure is not before time. I am grateful to those members of the Opposition who have taken a great interest in the subject for their support in resolving the problem, which makes the lives of many thousands of people in Britain a misery.

7.51 pm
Mr. Christopher Chope (Christchurch)

The hon. Member for Mansfield (Mr. Meale) makes two important points. The first is that the Bill will have a differing financial impact on different local authorities depending on whether they are urban, rural or suburban; yet the Government have proposed a standard distribution of grant through a standard formula that will not be proportionate to the needs of local authorities in implementing the legislation. The second is that the costs of appeal will be much more significant than the Government have so far recognised. The hon. Gentleman could have added that unlike ordinary planning appeals, either side will be able to appeal. If the local authority grants planning permission, there is nothing that people can do about it. They cannot appeal. However, if a local authority makes a decision, irrespective of what it is, on a hedge, there will be a right of appeal and the proportion of appeals will increase, as my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) said.

I spoke on the subject on Second Reading, although there was not much time for the Minister to respond to the debate. I hope that he will have a chance to respond this evening to the concerns and questions raised. Without repeating my hon. Friend's questions, I ask the Minister to spell out the fee structure that the Government have in mind for the complainants and what they will do about the concerns expressed on the differing impacts of the Bill on local authorities. I also hope that he answers the question that I raised on Second Reading about how East Dorset district council, which does not receive formula grant funding but only redistributed non-domestic rate, is to be reimbursed by the Government for the costs incurred as a result of implementing the provisions.

As a matter of common sense, I hope that the Minister accepts that it seems likely that there will be more than an average of fewer than 20 cases per English constituency, which is what 10,000 cases would amount to. If the Bill is as significant as some of its supporters suggest, the number of cases could be far higher than that.

I have one constructive suggestion. As the hon. Member for Mansfield said, there are precedents for the Government to reimburse the costs to local authorities on a specific basis. Some local authorities incur large sums in carrying out coastal protection work, which is refunded in whole or in part by the Government. Surely there is every reason why the scarce resources of the taxpayer that will be distributed by the Government to help to ease the burden of local authorities should be distributed to meet costs incurred rather than on a notional basis. Money distributed on a notional basis for concessionary fares resulted in grave injustices in both local authorities in my district, Christchurch borough council and East Dorset district council.

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 need to spell out clearly the basis on which the reimbursement of costs will be paid.

7.56 pm
Mrs. Annette L. Brooke (Mid-Dorset and North Poole)

I support the Bill wholeheartedly and am pleased that the Government also support it. Like other hon. Members, I have some questions and think that aspects of it need scrutiny, especially if elderly or vulnerable people are unable to tend their hedges. We need to take care when we deal with that—

Madam Deputy Speaker

Order. I remind the hon. Lady to relate her comments not to the Bill, but to the money resolution.

Mrs. Brooke

I apologise, Madam Deputy Speaker.

I want to reiterate what has been said about the necessary finance for local authorities. That is important. I am in an unusual situation: instead of the finger being pointed at the Liberal Democrats for asking for more resources, I am echoing and supporting the call by the Conservative party for that. There is a huge demand for action. Some cases are tragic and there are high expectations of local authorities. They need resources not only for the planning process itself, but to facilitate a good mediation process, which will take up staff time.

There will be much work to do in the first few years before precedents have been set by appeal results. The process will be resource intensive, not just because of the number of applications, but because those precedents and guidelines will not have been established. It is important to have money up front and to make it clear to local authorities that they will have sufficient resources to carry out that work because they are already short of resources for essential enforcement action on, for example, planning conditions. I would hate one problem to be solved at the cost of a host of other problems in the community.

7.58 pm
Mr. McNulty

With permission, Madam Deputy Speaker, I should like to respond to the debate.

I do not remember saying that I eschewed the notion of consensus, but I am sure that if it was reported twice, I probably did. I should qualify that by saying on most issues. I would certainly hope for consensus on this subject. I know that we are talking about the money resolution, but it would be remiss of me, as alluded to by the hon. Member for Runnymede and Weybridge (Mr. Hammond), if I did not endorse what he said about previous attempts to secure such legislation on both sides of the House. It is by no means a partisan measure and I am more than happy to acknowledge, as I did on Second Reading, the role played by the hon. Member for Solihull (Mr. Taylor), the former hon. Member for Mid-Kent and Faversham and my hon. Friend the Member for Coventry, South (Mr. Cunningham). I look forward, in the nicest possible way, to the hon. Member for Runnymede and Weybridge or his colleagues probing my hon. Friend the Member for Ealing, North (Mr. Pound) in Committee, with all that that entails.

The money resolution, and the cost structure in the impact assessment, have to be seen in the context of a range of other things. It is inappropriate to pooh-pooh advice given in pamphlets—although I am sure that the hon. Member for Runnymede and Weybridge was not doing that. "The right hedge for you: a guide to choosing a garden hedge" was an important piece of work, although it may well be that it should have followed legislation rather than preceding it. Nevertheless, through that sort of advice and information pack, we are trying to work closely with local authorities. There will be guidance on the legislation—it will not simply drop from the sky—and it will include guidance on how local authorities might assess the various issues that may be raised by complainants. That guidance will be widely available. There is a desire for some degree of education and awareness-raising, as well as simply legislation.

Mr. Chope

Will the Government issue draft guidance to be considered at Committee stage?

Mr. McNulty

As I said throughout the stages of the Planning and Compulsory Purchase Bill, I hope that such draft guidance will be issued. That is the best way of doing things and I will do all that I can to ensure that that happens. I may stretch that guidance to include other things as the Bill goes through both Houses, but I will ensure that it is available at some stage—Committee stage or Report stage—in this place. It will be an important element of scrutiny.

The hon. Member for Runnymede and Weybridge—I apologise for nearly saying Runnybridge and Weymede—was right to say that this Bill is not about banning high hedges. The Bill is about putting in place a regulatory framework for mediation. The costs reflect a stand-alone mediation process. With previous legislation, difficulties with costs and effectiveness have arisen. Part of the reason for that has been that measures were tagged on to the criminal trespass regime, the planning regime or other regimes, rather than—

Madam Deputy Speaker

Order. I will treat the Minister in the same way as Back Benchers and ask him to relate his remarks to the additional costs for local authorities.

Mr. McNulty

I will do that, Madam Deputy Speaker. I was going to refer to the costs of a stand-alone system of mediation as opposed to a system attached to the planning or criminal trespass regimes.

The elements that are referred to in the regulatory impact assessment relate to evidence from previous consultations. The 20 per cent. figure for the rate of appeals is higher than the 5 per cent. figure that was used in previous regulatory impact assessments; and it is double the rate of appeals in cases of nuisance—an equally important and troublesome area—and some seven times the rate of appeals in planning applications. I would not describe this as a third-party right of appeal; it is a mediation process, and it takes two plus the mediator to tango, as it were. We have inflated the figure to 20 per cent. rather than using the lower figures because the fact that each party can appeal against the mediation will be reflected in the costs.

Mr. Hammond

I have never seen the Minister dance but the mind boggles at the thought of two plus the mediator tangoing. Will he tell us about the costs of appeals? Will a disincentive to appeal be put in place through the possibility of award of costs against the appellant?

Mr. McNulty

As I said earlier in response to the hon. Member for Christchurch (Mr. Chope), there will be regulations for the fee structure and all the other elements if the Bill is successful. Those regulations will be available in draft form and they will certainly be consulted on before they are presented to the House. One assumes that they will reflect the evidence of cost structures that we already have. Despite protests from hon. Members on both sides of the Chamber, that evidence remains the evidence of the 1999 consultation. The structures will have to include some kind of disincentive to prevent capricious or vexatious appeals after the mediation process.

Hon. Members should bear in mind the fact that costs are calculated in the context of the mediation service actually working. It would be remiss of us to make calculations assuming a 90 per cent. or 100 per cent. appeal rate. There is also a tripwire because the local authority will not entertain the mediation process unless it is clear that the complainant has exhausted all other means available. There will not be an open house: if someone does not like the leylandii or whatever other kind of hedge next door, they will not be able simply to bung in a complaint to the local authority and expect it to succeed. Things will not work in that way. We intend a stand-alone mediation system.

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 costs of subsequent appeals, are correct. 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. That is route, not root, I hasten to add. 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. However, we are talking about a significant cultural change.

Mr. Chope

I am grateful to the Minister for referring to the different impacts. Will he go further and address the concern of East Dorset district council, which does not receive any formula grant funding at all? How will that council be reimbursed?

Mr. McNulty

We are talking about a money resolution but I cannot be drawn on whether East Dorset district council receives grant or not, or on what its proportions are in terms of the national non-domestic rate and the rate support grant. That would lead me into money areas that would cause you, Madam Deputy Speaker, quite rightly to pull me up again. I know that "pull me up" is not a very parliamentary term but it was the best that I could think of. However, shortfalls will be covered. Opposition Members do not seem happy with that comment, but it was an attempt to answer the question that they have rightly asked.

The thrust of the Bill and the associated money resolution is rooted in evidence. The Bill covers a very important issue and we intend, through consensus—however much it sticks in my throat to say that—to secure its passage through the House with the appropriate costs to the public purse, which will be reflected in the money resolution and the regulatory impact assessment.

Question put and agreed to.


That, for the purposes of any Act resulting from the High Hedges (No. 2) Bill ('the Act'), it is expedient to authorise the payment out of money provided by Parliament of—

  1. (1) any expenses incurred by the Secretary of State in consequence of the Act; and
  2. (2) any increase attributable to the Act in the sums which are payable out of money so provided by virtue of any other Act.

Madam Deputy Speaker (Sylvia Heal)

With permission, I shall put together motions 10 and 11.

  1. BROADCASTING 15 words
  2. c96
  4. cc97-110
  5. Kent and Canterbury Hospital 7,001 words
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