HC Deb 20 June 2003 vol 407 cc655-68

"If a complaint under this Act is brought in respect of land of which a "relevant authority" is the owner or occupier it shall be referred forthwith by that authority to the Local Government Association which shall nominate another local authority to consider the complaint.'.—[Mr. Chope.]

Brought up, and read the First time.

Mr. Chope

I beg to move, that the clause be read a Second time.

Madam Deputy Speaker (Sylvia Heal)

With this it will be convenient to take the following amendments: No. 12, in clause 4, page 3, line 2, at end insert—

"() for the purposes of this section, reasonable steps shall include at least one meeting with the owner or occupier of the adjoining land on which the hedge is situated, unless that person has refused to meet or the complainant has reasonable grounds to fear for his personal safety if such a meeting was to be held.'

No. 81, in page 3, line 2, at end insert—

"() For the purposes of this section reasonable steps shall include at least one meeting with the owner or occupier of the neighbouring land and an offer to share any costs of reducing the height of the hedges'.

No. 13, in page 3, line 9, at end insert—

"() for the purposes of this section, in deciding whether a hedge is having an adverse effect, the authority shall have regard to—

  1. (a) the height of the hedge when viewed from the complainant's property;
  2. (b) the distance the hedge is situated from domestic buildings on the complainant's property;
  3. (c) the length of time the hedge has been growing;
  4. (d) whether the complainant was first in occupation before or after the planting of the hedge;
  5. (e) whether the area is urban, suburban or rural;
  6. (f) the likely cost of remedial action;
  7. (g) the means of the owner or occupier of the neighbouring land;
  8. (h) for how long the owner or occupier of the neighbouring land has been owner or occupier.'.

No. 37, in page 3, line 9, at end insert—

'() The authority must, when acting under subsection (3), take into consideration all matters appearing to them to be relevant, including in particular (so far as appearing to be relevant)—

  1. (a) the extent to which the high hedge in question is capable of affording (or, if reduced in height, would still be capable of affording) privacy to an occupier of the neighbouring land,
  2. (b) the extent to which that hedge contributes (or, if reducer in height, would still contribute) to the amenity of the neighbourhood, and
    3. 656
  3. (c) any legal obligation (whether imposed by or under any enactment or otherwise) relating to that hedge.'.

No. 96, in page 3, line 9, at end insert—

"() The authority must when acting under subsection (3) take into consideration all matters appearing to them to be relevant, including in particular any guidance issued by the Secretary of State or the National Assembly for Wales'.

No. 82, in page 3, line 35, leave out subsection (7) and insert

"A fee determined under subsection (1)(b) shall cover the reasonably foreseeable costs to be incurred by the authority in considering the complaint'.

No. 97, in page 3, line 36, leave out from "1(b)' to end of line 38 and insert

"shall be refunded to such extent as it exceeds the reasonable costs incurred by the authority in considering the complaint'.

1 pm

Mr. Chope

What an extraordinary state of affairs! Barely 40 people, including yourself, Madam Deputy Speaker, are in the House for such an important piece of legislation. Let us hope that we can make some progress even with such a small number of hon. Members.

Mr. Eric Forth (Bromley and Chislehurst)

My hon. Friend should explain that, including the Speaker and Deputy Speakers, there are 659 Members of Parliament—or, sadly, 658 as we speak. In spite of some of the claims made about the importance of Bills—not least this one—fewer than 40 Members of Parliament out of 658 deem it sufficiently important to be here today to make legislation.

Mr. Chope

Absolutely. That is especially pertinent if, as we are told, so many representations have been made to hon. Members on both sides of the House by constituents who are anxious about high hedges. The number present is probably an indication of the interest in the Bill overall and the extent to which hon. Members take their constituents seriously on this subject.

Bob Russell

The hon. Gentleman is far more knowledgeable than I am about the democratic processes of this esteemed House, but does he agree that the Order Paper clearly states that the Bill was not amended in Standing Committee? Is that not an indication that perhaps there was a consensus on the Bill and that it received all-party support?

Mr. Chope

Is the hon. Gentleman accusing his colleagues and Labour Members of being naïve in their reading of the Order Paper for assuming that a Bill that was not amended in a Committee that lasted for 39 minutes would sail through? Any hon. Member could see the number of amendments—35, I think—that had been tabled by the hon. Member for Hendon (Mr. Dismore). If that did not alert them to the fact that something controversial would be discussed today, I do not know what would have done. Other amendments have also been tabled. The hon. Member for Colchester (Bob Russell) cannot excuse the behaviour of all those who are not here by saying that they were duped into thinking that there was no need to attend. At least the hon. Gentleman was not duped—he was on the Committee and did not dupe himself—

Madam Deputy Speaker

Order. The hon. Gentleman has responded to the intervention. Perhaps he could now address the new clause.

Mr. Chope

Absolutely, Madam Deputy Speaker.

The new clause deals with an issue raised by, I think, the hon. Member for Scarborough and Whitby (Lawrie Quinn). I am sorry that he is no longer in the Chamber. The problem is not new—it was debated when we considered on Report the Bill promoted by my hon. Friend the Member for Solihull (Mr. Taylor) in the last Parliament—so it is especially disappointing that it is left in the air and not resolved.

Paragraph 136 of the draft guidance—about a council as a party to the complaint—states: There are no special procedures laid down in the Act for dealing with complaints in which the council is directly involved as one of the parties. The hedge might, for example, be on land owned by the council. The guidance continues: It is important that the process for deciding such complaints is seen to be fair and impartial. Councils should, therefore, consider setting up internal procedures to ensure that the complaint is considered by a committee or officers who do not have responsibility for managing the land or trees in question. This should avoid any potential conflict of interest. I do not think that that goes far enough, because what we are talking about is justice being seen to be done. If the local authority is a party to the proceedings and the respondent to the complaint, how can a complainant believe that his complaint is being given just consideration if the local authority deals with it itself, rather than referring it, as the new clause suggests, to another local authority? The draft guidance continues: If someone believes that the council have not handled their complaint properly, they can refer the matter to the local government ombudsman". I am afraid that, again, that is no solution. I know from dealing with the local government ombudsman on behalf of my constituents that that is a long-drawn-out process and no proper compensation is payable at the end. Would it not be much easier for the local authorities to proceed along the lines suggested in new clause 6?

That brings me to the next amendment in the group, amendment No. 12, which was tabled by the hon. Member for Hendon. I think that it is the first amendment in his name that we have had the chance to debate today. It states that reasonable steps shall be taken, and sets out what those reasonable steps shall include. I have supported that amendment. I note that it is tabled by a sponsor of the Bill, and I therefore hope that the hon. Gentleman will explain why it was not incorporated in the Bill at the outset, and failing that, why it was not incorporated in the Bill in Committee.

Amendment No. 81 was prompted by a letter that I received from a member of the public in response to the previous occasion on which we discussed this issue in the House. That member of the public recited to me the successful conclusion of a dispute that she had with a neighbour about a high hedge. She said that, eventually, they decided that the costs of reducing the size of the high hedge should be shared between the neighbour on whose land the high hedge was situated and herself, the complainant. She reported to me that that had been done, and that she was pleased. The amendment would therefore add to the pressure on people to resolve these differences privately and in a consensual way.

Amendment No. 13 is another amendment tabled by the hon. Member for Hendon that I, too, support. It repeats the wording in the previous Bill. Why was this caveat taken out of the previous Bill? It was suggested earlier that this subject had been subjected to a great deal of scrutiny in the House. We will not make progress, however, if the reasonable caveats and requirements contained in an earlier Bill are not contained in a subsequent Bill. Normally, the history of private Members' Bills has been that as they proceed through the iterative process they become more reasonable and more confined to the key mischief that they try to address rather than drifting further away from the point. Amendment No. 13 should therefore commend itself to the House, as it requires that a new subsection should be inserted in clause 4, providing that for the purposes of this section, in deciding whether a hedge is having an adverse effect, the authority shall have regard to … the height of the hedge when viewed from the complainant's property … the distance the hedge is situated from domestic buildings on the complainant's property … the length of time the hedge has been growing … whether the complainant was first in occupation before or after the planting of the hedge … whether the area is urban, suburban or rural … the likely cost of remedial action … the means of the owner or occupier of the neighbouring land … for how long the owner or occupier of the neighbouring land has been owner or occupier. I hope that everyone in the House will think that that is eminently reasonable and should not have been excluded from this Bill. I am glad that the hon. Member for Hendon agrees with me on that.

Mr. Clifton-Brown

Does my hon. Friend accept that the Bill has survived by the closest possible shave? If it had received one less vote in a previous Division, it would have fallen. I appeal again—I am sure that my hon. Friend will join me—for some flexibility from the promoter so that we can make progress. If we have no flexibility, it might be very difficult for the Bill to make progress this morning.

Mr. Chope

I endorse my hon. Friend's remarks. He said that the Bill could have fallen, but I am glad that it did not. The previous Bill fell because there was not a quorum and some of the Members who were involved that day were unjustly accused of "talking it out". That is not what happened; there was no quorum. This time, there has been a quorum and I hope that the Bill's promoter took the opportunity to reflect in the previous Division on whether he wishes it to reach the statute book. If he does, the people of good will in the Chamber could enable that to happen. Unless there is the flexibility and compromise that we witnessed last week in the proceedings on the Fireworks Bill, I do not think that the Bill will reach the statute book. We are trying to impress on our constituents the need to mediate and to be reasonable. If we do not show such reasonableness ourselves, I am not sure that we are setting a very good example.

Amendment No. 37 says: The authority must, when acting under subsection (3), take into consideration all matters appearing to them to be relevant, including in particular (so far as appearing to be relevant)—

  1. (a) the extent to which the high hedge in question is capable of affording (or, if reduced in height, would still be capable, of affording) privacy to an occupier of the neighbouring land,
  2. (b) the extent to which that hedge contributes (or, if reduced in height, would still contribute) to the amenity of the neighbourhood, and
  3. (c) any legal obligation (whether imposed by or under any enactment or otherwise) relating to that hedge.."
Those words appear verbatim in clause 4(4) of the previous Bill. Why were they removed?

I shall embellish the debate on this amendment by illustrating it with a particular case from Highcliffe in my constituency. The owner of a property with a south-facing garden has been there for about 40 years. To the south boundary of that property was a bungalow, but the site was redeveloped and the bungalow was replaced with a two-storey block of flats. The planning authority made it a requirement that the flats should be situated a specific distance away from the other property's southern boundary, but they were built 20 ft closer to that boundary than they should have been. Instead of rigidly enforcing that planning requirement, the local authority said a screen should be built to protect the owner of the other property from the flats.

The screen was never planted, so the owner planted one instead. He has kept it trimmed but it is much higher than 2 m. It needs to be that high to afford him privacy from those on the first floor of the flats who overlook his garden. I spoke to the owner of the house last weekend, and I know that his wife—who is in hospital recovering from a slight stroke—would be extremely pleased to know that this proposal had been accepted by the promoter of the Bill. She would be even more pleased could she be assured that the Bill would not be retrospective in respect of cases such as hers. We shall discuss the amendment that deals with that in due course. Each of these safeguards is born out of the real-life experience of ordinary people. That has been reflected in my postbag, in the context both of this Bill and of its predecessor.

1.15 pm

Amendment No. 96 states: The authority must when acting under subsection (3) take into consideration all matters appearing to them to be relevant, including in particular any guidance issued by the Secretary of State or the National Assembly for Wales". I would have thought that that was a common-sense requirement to place upon a local authority, but the draft of the guidance that I have seen so far leaves much to be desired. I shall not go into detail on that because I am sure that we want to make as much progress as possible.

Amendments Nos. 82 and 97 address the issue of fees. They provide a fallback position in the event of the amendments in the previous group not being accepted by the promoter. Amendment No. 82 would provide that A fee determined under subsection W(1)(b) shall cover the reasonably foreseeable costs to be incurred by the authority in considering the complaint. Amendment No. 97 would ensure that, if there were any excess income as a result of that, compared with the actual reasonable costs incurred by the authority in considering the complaint, there should be a refund. That seems eminently sensible, but unless we have a system for ensuring that the costs incurred by the local authorities can be met by the people who are causing those costs, we shall effectively be saying that everyone should pay a higher council tax to accommodate this regulatory requirement. For the reasons that I set out earlier, I do not think that that would be right. Having cantered briefly through the amendments, I hope that new clause 6, in particular, will find favour with the promoter, because its provisions would resolve the issue of a local authority being the judge in its own cause.

Bob Russell

The problem with amendments being grouped together is that they are like a good rustic historic hedge: to remove one or two of the species would be to damage the whole. The promoter of the Bill should seriously consider the new clause relating to a local authority being both offender and judge. I am grateful to my hon. Friend the Member for Montgomeryshire (Lembit Öpik) for drawing to my attention a problem caused by Powys county council, which has planted a row of high trees 140 m long in front of Dyfnant terrace and Rock terrace on the B4518 at Llanidloes. It is probably not pronounced like that, but I have done my best. I am sure that there will be other examples of the trees or high hedges that are causing a problem to a complainant or group of complainants being on land owned by a county council, district council or borough council. The promoter of the Bill must in fairness address the question of how people who have a complaint against their local authority in those circumstances can get the matter resolved to their satisfaction. Surely the local authority cannot be judge and jury in cases involving its own property.

Mr. Leigh

I shall speak briefly, if I may, to amendments Nos. 13, 37 and 96. I particularly commend amendment No. 13, tabled by the hon. Member for Hendon (Mr. Dismore), which is eminently sensible. I hope that, in a spirit of compromise, the promoter will accept it, because it would answer a few of my concerns about rural areas.

The amendment would allow local authorities to be far more responsive to local conditions, and they would not have to consider only the height of the hedge. As I have pointed out, 2 m is not a great height and if the proposal went into statute local authorities would be able to take account of the height of the hedge when viewed from the complainant's property in considering larger gardens in rural areas. The issue could be considered in the round, and the local authority could get some idea of whether the hedge was blocking out light and, on the face of it, causing a major nuisance to the complainant.

If the amendment were passed, the local authority could consider the distance the hedge is situated from domestic buildings on the complainant's property". If someone complained to the local authority, an officer could make a brief visit to a rural garden and say to the complainant, "I'm sorry, but I am not prepared to take up the case on your behalf with all the attendant costs and difficulty as there is a large garden involved. The hedge may be over 2 m, but, objectively, it simply should not cause you any problem. The time for which it has been growing is reasonable." Local authorities could also consider whether the complainant was first in occupation before or after the planting of the hedge. That is a good point.

May I illustrate my argument with a constituency example? My constituency has a large number of fairly old-fashioned modern developments, if I may put it that way, comprising bungalows with fairly large gardens that were put up in the '50s, '60s and '70s. Under the new guidelines, particularly those laid down by the Office of the Deputy Prime Minister, there has been a dramatic increase in the density of new housing in rural areas—in particular, in Wragby in my constituency. That is partly because the cost of the land is rising and partly because modern couples who are buying new houses apparently do not want larger gardens. Another reason is that, under planning policy guidance note 3, I think, the ODPM is giving developers an open gate to increase the density of housing in rural areas dramatically.

In my constituency, there are many hedges more than 2 m high growing at the end of the fairly large gardens of those rows of bungalows, which once had arable fields beyond them. That is typical of the edges of villages in my constituency, where people were concerned about pesticides and fertilisers in the fields beyond, so they allowed their hedges to grow. New developments are growing up on the edges of the villages. Few bungalows are going up, but large numbers of two-storey houses are being built very densely and right up to the hedge line.

I constantly hear that complaint, often from elderly people who are without great resources. They reluctantly accept that they do not have any right to a view and that the estate is going up because it is in the planning guidelines so they will have to put up with it. However, they are already pretty upset that the corner of the house on the edge of the estate is right up against the hedge.

If the amendment is not passed and if the local authority is unable to take some cognisance of whether the complainant was first in occupation before or after the planting of the hedge and unable to have regard to the height of the hedge when viewed from the complainant's property", what will happen in respect of the bungalow, which has been up 20 or 30 years, and the person who has lived there, allowing his hedge to grow, who may now be a pensioner whose children were brought up in the constituency? Suddenly a new house is built and the occupier who moves in issues a complaint. His new house is right up against the hedge line, and he complains to the local authority that the hedge should be cut down. If the local authority were to act on that, it would be an unfair imposition on a constituent who has happily enjoyed his bungalow and hedge for 20, 30 or even 40 years.

I refer to that problem constantly, and I wish we could have a Bill that took it into account. Amendment No. 13 tabled by the hon. Member for Hendon is excellent, no doubt because it was in the previous Bill and was probably drawn up by Government draftsmen. If accepted, it would take account of the likely cost of remedial action and the means of the owner or occupier of the neighbouring land. That would help my pensioner constituent living in a bungalow, and some cognisance could be taken of his means.

The amendment would require the local authority to take into consideration for how long the owner or occupier of the neighbouring land has been owner or occupier". That would also help to solve the problem of someone moving into a modern housing estate and immediately issuing a complaint. Some of the other amendments similarly give local authorities greater scope to consider the complaint in the round, to take a common-sense view and to come up with sensible and objective action.

In a sensible, moderate world in which people try to come to an agreement, how could anyone argue with the wording of amendment No. 37? It says: The authority must, when acting under subsection (3), take into consideration all matters appearing to them to be relevant such as the extent to which the high hedge in question is capable of affording … privacy and the extent to which that hedge contributes (or, if reduced in height, would still contribute) to the amenity of the neighbourhood". These are sensible amendments. I shall stop there, because I am sure that the promoter will say that he is prepared to accept them and make progress on the Bill.

Mr. Andrew Dismore (Hendon)

The reasons why I proposed amendments Nos. 12 and 13 are similar to those given by the hon. Members for Christchurch (Mr. Chope) and for Gainsborough (Mr. Leigh). I support the Bill, as my hon. Friend the Member for Ealing, North (Mr. Pound) knows, which is why I agreed to sponsor it. However, whenever we sponsor a Bill, there are always issues to raise, either to get assurances or to move the debate on a little. My amendments may be technically flawed, but that does not mean that they do not address issues that should be considered.

Amendment No. 12 tries to deal with the problem of ensuring that people talk to each other to try to solve their differences before they end up having to use the complaints procedure. It is important that, whenever possible, people find an amicable solution to these serious disputes. If people meet face to face, perhaps with the help of a mediator, many of these problems can be resolved without the lengthy process outlined in the Bill.

Bob Russell

Given that the hon. Gentleman is a sponsor and supporter of the Bill, has he discussed these amendments with the promoter? Is the promoter happy with what the hon. Gentleman is proposing?

Ms. Dismore

The promoter will speak for himself shortly. I shall certainly not put words into his mouth. I am sure that he agrees with the principles behind my amendments, but whether he thinks they should be in the Bill, we will no doubt find out when he responds to the debate.

On amendment No. 12, with the best will in the world, these disputes can get somewhat heated, and occasionally downright dangerous—we have seen some terrible stories in the newspapers recently. Although I am a great believer in the art of mediation to try to get people to resolve their difference; in a friendly way, sometimes the recipient of the complaint refuses to have anything to do with the process and puts the proverbial two fingers up to the complainant saying, "Do your worst." Alternatively, things can get out of hand and people suffer violence. There has been a case like that in the past week.

Mr. Leigh

I particularly warmly welcome amendment No. 12, which I did not have a chance to mention. I am not sure whether the publicity reached southern England, so hon. Members may not know that, last week, someone in Lincoln was shot dead because of a dispute over a hedge in a urban area, so any provision, such as amendment No. 12, to resolve such disputes amicably would be very welcome.

1.30 pm
Mr. Dismore

I am grateful to the hon. Gentleman for his intervention, because that is precisely the case to which I was tangentially referring.

Although efforts definitely need to be made to bring people together through mediation, frankly, there are times when mediation will not work, either because the recipient of the complaint flatly refuses to have anything to do with the mediation, or because tempers have got so heated that things can be made worse, rather than better, by such meetings. However, it is far preferable to make progress through sensible discussions.

The hon. Member for Gainsborough also referred to amendment No. 13, which I tabled, and he is right to say that we are going over old ground I remember debating such things on previous occasions when we have considered such legislation in previous years. The purpose of amendment No. 13 is to set out the sort of things that any reasonable local authority would bear in mind when considering those disputes.

In earlier debates, we have heard about the risk of local authorities adopting either a rather hard-headed approach or a rather lax approach. Assuming that we agree that some parameters should be laid down, amendment No. 13 sets out the sort of issues that should be considered. To build on some of the comments made in earlier discussions, it is important that we reflect on whether the hedge under consideration is situated in an urban, suburban or rural area. I know from my own constituency, which is suburban, that one can occasionally find circumstances in which a hedge that has significant and impinging effects might not cause any problem at all if it were in a rural area, and some interesting points were made about that earlier in the debate.

It is also very important to bear in mind which came first—the complainant or the hedge. If someone moves into a property where the hedge is already growing, that is a very important fact because they either bought or rented the property in the knowledge that the hedge was already there. Obviously, that could affect property values.

The amendment very much speaks for itself. It has been ably introduced by the hon. Member for Christchurch, rather than by myself, and I cannot add a great deal to the debate other than to say that there are some important factors that need to be taken into account.

Mr. Pound

I am sure I cannot be the only hon. Member who sometimes wonders what sort of impression we give to people who watch our debates. We seem to be discussing ever more abstruse issues when people are dying. The problem that we are trying to address is not in dispute, yet we seem to be conducting some sort of stately quadrille in a world of "what ifs?" and "what mays?". Some people outside the House would think that we are in dereliction of our duties to those people in whose name we sit in this place.

I am, by nature, someone who is flexible and emollient, and I should like nothing more than to be able to give a warm welcome to a great many of the amendments under consideration, but on this fifth introduction of a high hedges Bill, virtually all room for flexibility has long gone. I am not suggesting that we are adhering to a rigid code that does not allow flexibility—merely that the debates have been debated, the discussions have been discussed and the amendments have been incorporated. We now have a stripped down, pared down Bill that works with local authorities, Hedgeline and the police. It works.

What is more important than any hon. Member's personal opinions and views, as expressed today, is what we do for the people of this country in whose name we sit in the House. It is vital that we address this need. Until a few seconds ago, I have been involved in negotiations in a desperate attempt to meet some of the concerns that have been well expressed by the hon. Member for Christchurch (Mr. Chope) and by my hon. Friend the Member for Hendon (Mr. Dismore).

I seem to recall that new clause 6 was tabled as an amendment to the Bill that was introduced by the hon. Member for Solihull (Mr. Taylor). It would create a strong and slightly suffocating additional bureaucracy. The draft guidance that the Office of the Deputy Prime Minister has already placed in the Library advises local authorities on the erection of Chinese walls, or invisible walls within the local authority. Local authorities currently investigate aspects within their remit. They do so quite efficiently. Were they not to do so, the sanction of the reference to the local government ombudsman or the National Assembly for Wales would be more than sanction enough.

With amendments Nos. 12 and 81, I have much sympathy. They are in line with the approach mentioned in the leaflet entitled "Over the Garden Hedge". I am anxious not to limit the area in which the local authority can operate. My hon. Friend the Member for Hendon recognises that discussion and mediation are the ideal solution. I think that, in 85 per cent. of cases that local authorities are concerned with, that works but we must allow local authorities flexibility to take account of the particular circumstances of individual cases. Of course, it is best if there is a meeting between the parties before a complaint is made to the local authority but we cannot tie the local authority's hands on what they can or cannot consider.

I was tempted by amendment No. 37. The hon. Member for Christchurch makes a powerful case. His amendments to the Bill that was introduced by the hon. Member for Solihull moved in a slightly different direction. On that occasion, he wanted to expand the list of factors to be considered because he felt that it was restrictive. However, in the interests of good governance and good service to the people whom we represent and of emollience, and recognising the strength of feeling on the Opposition Benches, my hon. Friend the Minister has assured me that there is sympathy on the Government Front Bench for the acceptance of amendment No. 37, as hon. Members will shortly hear.

In the interests of expedience, I finish by saying that, with the exception of amendment No. 37, with which I have much sympathy and which I am happy to support, I urge my hon. Friends and Opposition Members not to press the amendments.

Yvette Cooper

May I briefly respond to the points that have been raised? On new clause 6, clearly I agree that decisions must be fair and impartial. The guidance explains that local authorities will need to set up internal walls. That is the kind of thing that local authorities already do. Suppose the council wants to knock down a tree that is subject to a tree preservation order, or suppose social services has a stake in a planning application, it is a standard approach to set up internal walls. There are checks on local authorities to ensure that they are fair and follow due process, whether it be through the appeals system or the process to judicial review.

On amendments Nos. 82 and 97 and the way in which fees are set, it is appropriate that we have proper consultation on the level of the maximum fee, rather than requiring that the fee should be set at the full cost for the local authority of considering the complaint. We would take account of all those considerations in the consultation and in setting the maximum fee. We have already said that we would make good the shortfall through the revenue support grant. Otherwise, it should be up to the local authority to decide whether to set a fee within the framework of that maximum, as set out in regulations.

On amendments Nos. 12 and 81, there is a problem with setting that kind of thing out in the Bill. They set out too much detail about the meetings that need to take place. They do not take account, for example, of someone who is disabled or other problems that may make meetings difficult. That matter is properly dealt with through guidance.

I have a lot of sympathy with the aim of amendments Nos. 13, 37 and 96, which attempt to set out all sorts of issues that should be considered by local authorities. As we pointed out in the draft guidance, local authorities should consider such issues in taking decisions on an individual case. My concern about amendment No. 13 is that, in listing the factors that must be considered, it would make it very difficult for local authorities to consider anything not on the list. On amendment No. 96, because the guidance is published, if a judicial review were undertaken, for example, it would in any case be appropriate for the courts to take into account any guidance. So local authorities would take account of the guidance in making decisions. However, I recognise that the House is concerned—

Mr. Leigh

I am somewhat amused by the Minister's comments about amendment No. 13. I see no reason why any reasonable person cannot accept that amendment, which was tabled by one of her hon. Friends. She intimated that there are various extra factors that a local authority might want to consider, but what are they? Perhaps she could advise us.

Yvette Cooper

The truth is that such problems often arise in respect of legislation. When we want local authorities to take account of the factors that might be relevant in a particular circumstance, it is sometimes difficult to anticipate, as the legislation passes through this House, what all of those factors might be. If we could think of them in advance we could add them to the legislation, which would make matters easier.

Mr. Leigh

Unfortunately, the Minister is unable to help us in respect of the other factors that local authorities should consider. If she reads the amendment, she will discover that it says, the authority shall have regard to", not that it shall "only" have regard to; it is not an exclusive amendment. My hon. Friend the Member for Christchurch (Mr. Chope) and I are both barristers; we do attempt to understand legislation. If the legislation were amended in this way, it would not force local authorities to consider only those points mentioned in the amendment. Given the way in which it is drafted, why is she opposing it?

Yvette Cooper

The hon. Gentleman will be aware that we often have debates such as this on a wide variety of legislation, particularly in Committee. Attempts to ensure that particular factors are taken into account can often become constraints on other factors being taken into account as well. Let us consider the difference in the wording of amendment Nos. 13 and 37. The latter states that an authority must take into account all matters appearing … to be relevant, including in particular"— and then proceeds to list some specific factors. The use of the word "including", by contrast with the provision of a comprehensive list, makes it is easier to avoid future problems, whereby local authorities are unable to take into account matters that they consider relevant because of the legislation's drafting. I agree with the hon. Gentleman that this is a drafting issue, and the drafting of amendment No. 37 has advantages over that of amendment No. 13. For that reason, the Government are happy to support acceptance of amendment No. 37, which would provide greater safeguards in respect of the privacy of the occupier of the neighbouring land, and the extent to which a hedge contributes to the amenity of the neighbourhood, by including such safeguards in the Bill as well as in the guidance.

I urge the Members concerned to withdraw the other amendments, but the Government are certainly happy to support acceptance of amendment No. 37.

Mr. Chope

I suppose that we should be grateful for small mercies, and indeed I am, but let us examine the facts. A version of amendment No. 37 was actually included in the previous Bill. Why was it removed, and why have we had this debate about it? The Bill's promoter and the Minister have accepted the underlying principle at the last minute, as a result of an amendment, tabled in my name, that is identical to the original version. I am delighted that the amendment will be accepted, but I am disappointed with the argument that the Minister deployed. Having listened to her comments and to those of my hon. Friend the Member for Gainsborough (Mr. Leigh), I have no doubt that my hon. Friend is right. If we cannot make the Minister see our point of view, that is all the more disappointing.

New clause 6 is about justice being seen to be done. It may well be that the authority in the London borough of Ealing is so large and employs so many people that one can have a meaningful description of different departments—Chinese walls, and so on—dealing with a complicated issue. However, the borough of Christchurch would be lucky if it could afford one tree officer and there are probably only a handful of people in the planning department. A system in which the council is on one side of the argument and a complainant on the other—the complainant would likely view the council as judge in its own court, but the council has only 24 elected members and we also have to take into account their various roles as chairmen and others on regulatory and scrutiny committees—would not work.

1.45 pm

What is so unreasonable about new clause 6? Why cannot it be accepted? If the Government or the sponsor will not accept it, I hope that the House will in the Division that we shall shortly have. The hon. Member for Ealing, North (Mr. Pound) says that the Bill has been much discussed before and that iterative process has removed the room for flexibility. Unfortunately, the iterative process has not improved the Bill as it should have done and as I still hope that it can be. I shall say no more now, because we want to make as much progress as possible.

Question put, That the clause be read a Second time:—

The House divided: Ayes 1, Noes 35.

Division No.243 [1.46 pm
AYES
Wilkinson, John Tellers for the Ayes:
Mr. Christopher Chope and
Mr. Edward Leigh
NOES
Banks, Tony Laing, Mrs Eleanor
Barnes, Harry Lazarowicz, Mark
Bottomley, Peter (Worthing W) McNulty, Tony
Bottomley, rh Virginia (SW Surrey) McWalter, Tony
Mandelson, rh Peter
Brake, Tom (Carshalton) Maples, John
Brooke, Mrs Annette L Osborne, Sandra (Ayr)
Byers, rh Stephen Quinn, Lawrie
Calton, Mrs Patsy Russell, Bob (Colchester)
Clarke, Tony (Northampton S) Stanley, rh Sir John
Cohen, Harry Sutcliffe, Gerry
Cooper, Yvette Taylor, John (Solihull)
Davey, Edward (Kingston) Vis, Dr. Rudi
Fitzpatrick, Jim Ward, Claire
Gardiner, Barry Wicks, Malcolm
Harman, rh Ms Harriet Wright, Anthony D. (Gt Yarmouth)
Harris, Dr. Evan (Oxford W & Abingdon)
Hendry, Charles Tellers for the Noes:
Hill, Keith (Streatham) Mr. Andrew Dismore and
Holmes, Paul Mr. Stephen Pound

Question accordingly negatived.

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