§ 7.25 p.m.
§ Baroness Gardner of Parkes
My Lords, I beg to move that this Bill be now read a second time. This small Bill is intended to provide a way of dealing with what is for many people a very big problem. The proposal is to amend Section 79 of the Environmental Protection Act 1990 and add, to the existing list of possible nuisances, boundary hedges between two private dwellings,prejudicial to health or a nuisance",which is very much in keeping with that section of the Act.
The 1990 Act has already been amended many times, so there is nothing startling in what I suggest. The Library was able to provide me with a print-out of all the amendments to Section 79. There have been many. Indeed, I myself introduced a Private Member's Bill in 1996 on noise.
In the previous parliamentary Session, on 20th October 1999, Mr Jim Cunningham presented this Bill in another place. It was entitled the Control of Hedgerows in Residential Areas Bill. Lack of parliamentary time prevented it making progress.
I tabled my Private Member's Bill immediately after the opening of this parliamentary Session. I was surprised and pleased to see that almost immediately thereafter the DETR published its consultation paper, High hedges/possible solutions, as it makes clear that the Government are aware that this is a real problem and that something has to be done to make life tolerable again for those worst affected.
I have had meetings with Hedgeline, an organisation which advises and helps members who told me of the distress, anger, frustration and even harassment they were suffering. The photographs that Hedgeline members brought with them were a revelation. Until I saw them I wondered whether people were exaggerating the detriment caused by oversized or neglected hedges. Seeing the evidence convinced me that many people have a genuine right to feel aggrieved. They have a real and pressing problem, and they must be given a way to improve their situation. That is why this Bill is before your Lordships' House today.
The hedge issue has been so widely publicised that I do not intend to take the House's time going into detail. Most people are aware of the loss of light, 601 reduction in property value, damage to buildings through subsidence, and loss of the proper use of gardens for plant growing and recreation due to dense, evergreen conifers planted on or close to garden boundaries. Everyone refers to the "leylandii problem", but other species are also culprits.
If a person wishes to erect a garden wall between houses, planning permission is required for anything with a height of more than two metres. Yet a dense row of trees can be planted and left to grow without control or responsibility on the part of the planter. This can destroy a neighbour's amenity and sometimes cause great loss of light.
Your Lordships will be aware of the famous Birmingham case of Michael Jones, founder of Hedgeline. Neighbours fell out over hedge heights about 20 years ago. The court decision eventually confirmed that Mr Jones could trim the intervening hedge and he did so. The neighbour then planted a further parallel hedge inside the first hedge. Only in April last year was the inner hedge trimmed to a height matching the boundary one, and only then due to the intervention of the freeholder under the estate covenants. Can anyone believe that it is fair that it should take 20 years for this result?
This Bill will give the local authority powers that it already possesses in other areas. As the planning authority, it is the appropriate body to deal with the matter in the first instance. The involvement of the local authority—almost as an independent third party—has proved very successful under the Noise Act 1996, to which I referred earlier, in taking the heat out of arguments between neighbours over noise-based anti-social behaviour. This Bill would have a similar effect, in what can also be a situation of anti-social behaviour, by giving local authorities the power to resolve most cases.
Ultimately, the matter would still be in the hands of the courts. At present a civil action to prove nuisance is the only recourse a person has, and that is a long, slow and very expensive process, as shown by the Jones case that I have mentioned. This Bill would result in a much more rapid and satisfactory way of dealing with matters.
In some reported cases, hedges have been planted with the deliberate intention of destroying the value of another's home and even of driving the occupants out. That is certainly anti-social behaviour and a terrible thing for one human being to do to another. But it is not the main reason for the nuisance. In my view, it is thoughtlessness that causes the person on the light side of the hedge to fail to appreciate the effect that an excessive barrier has on the life of another person, the person who lives on the shaded side.
Once a hedge has grown beyond a certain size it can get out of control. It is a major job to prune it to an acceptable size. It is a job that will have to be done again and again if the variety of hedge produces rampant growth.
602 One letter I received on the subject, accompanied by a very disturbing photograph, was from a man appropriately self-described as a "hedge victim". It said:It is 11 a.m. on a bright November morning. This letter is being written in our living room which is shaded from the prevailing light by the Leylandii hedge shown in the Polaroid I took a few minutes ago. When such a hedge separates a pair of semi-detached houses, its effect, particularly in winter, is depressing and it may damage our foundations. Thus it is not just a question of the height of a hedge but its location and orientation which determine the extent to which it impinges on a neighbour's house and garden".It is an interesting point that he makes. A hedge that might be no problem for anyone in an area of large lawns and gardens could be disastrous in a closely-built area.
In the High hedges consultation paper, Option 4, described as the "tailor-made approach" is very much in line with my Bill. The paper says that an appeal process would be needed. I put it to the Minister that this already exists in Section 80 of the Environmental Protection Act 1990. All the necessary procedures already appear in that Act.
The Green Paper, in paragraphs 5.26 and 5.27, covers many possibilities as to the type and number of plants and future species. That degree of detail in legislation on this subject is unnecessary. Guidance, as proposed in paragraph 5.37, is always helpful, but it under-estimates the experience, intelligence and ability of local authorities to have every decision made for them in primary legislation. They are quite capable of dealing with the matter if they have the right to do so.
It would be for the local authority to decide whether or not there was a nuisance. The local authority would know its area well. It would be able to judge the local circumstances and whether or not a particular hedge constituted a nuisance. If the local authority decided that it did, it is already familiar with all the procedures in the 1990 Act.
This simple Bill is based on common sense. It has all the ingredients to become effective in dealing with the hedge problem and if passed into law could proceed without delay.
The consultation process, I believe, will show that support for Option 4 is strong enough to cause the Government to decide to legislate. However, I am much less confident about when the Government would find the parliamentary time to bring forward a Bill. For me, it is important that this Bill proceeds. I beg to move.
§ Moved, That the Bill be now read a second time.—(Baroness Gardner of Parkes.)
§ 7.37 p.m.
§ Lord Graham of Edmonton
My Lords, it gives me great pleasure and satisfaction to endorse every word that has been said. I am almost tempted to say that I rest my case, but I have my own words to underline what has been said.
Like the noble Baroness, Lady Gardner, I believe that this is a situation which has been going on for some time but which, until someone such as a 603 neighbour—in my case, my neighbour—brings the matter to one's attention, one does not quite appreciate it.
The name of Michael Jones has been mentioned. He is the hero involved in getting the matter to this level. The noble Baroness is nodding her head vigorously. We have been to meetings with Michael and we have met the people he has brought to them.
It is a difficult situation. I do not underestimate the problem from the Government's legislative point of view. I believe that the solution lies in Option 4 of the document. At the same time I recognise that whether there is the will to lift this issue up the political and legislative agenda is another matter, as the noble Baroness frankly said. But I want to congratulate the Minister and her colleagues on having got us this far. Although we may appear to have not got very far, we have reached a situation where the Government are asking an enormous range of people for their opinion. The people consulted form a long and catholic list in the document. Everyone who has a right to an opinion in these matters has been consulted.
We have reached the stage at which the Government have laid out the options and are saying to the people affected, "Which option do you feel is the right one?" As I am sure the Minister knows, when the consultation period closes—which I believe is at the end of this month—the deliberations in the department will be exciting.
Mr Cunningham was mentioned. Before him, Mr Andrew Rowe, as a parliamentarian, also played a major part in bringing this issue to the attention of a wider public. I also wish to thank Alan Meale, a Member of Parliament who was the junior Minister last year. He showed great sympathy and brought the matter forward. I am sure that the Minister will not be accused of failing to see the wood for the trees. She never hedges her bets and does not believe in beating about the bush. What we get from her tonight will form another branch. I knew noble Lords would twig that. Someone dared me to say those things and I said that I would say them.
We want to hear from the Minister not only that the Government have sympathy, not only that they understand the case, not only that they have explained the problems, but that they can give a lot of hope to people outside.
I come to this debate with my experience of mobile homes. What has that got to do with it? There are thousands of people living in mobile homes on sites where the owners are not very nice and not very helpful. Many of those people are elderly or infirm and they are petrified that if they say "boo" to a goose something will happen to them. The same applies to thousands of neighbours. They have a good case for presuming that people are reasonable and will listen to an argument. However, they are petrified of being bullied and pushed around and they do not have the money to pursue the matter.
The Government must recognise that not only is there a question of legislative time here, but that costs will he involved. Many of us have had experience of 604 local government—I see that the noble Lord, Lord Dixon-Smith, is in his place—and we know about the big step between the willingness to take action and having the resources to do so. Enforcement or endorsement is the bane of our lives. I can well imagine that local authorities who may well accept the genesis of our argument will respond by saying, "Just a minute, this is going to mean asking members of the planning department to give their attention to the matter and we do not know the size of the problem". In a reply made some time ago in another place to Andrew Rowe, Alan Meale explained that 2,500 representations had been made on this matter, based upon very little publicity. Each year the local authorities are faced with 5,200 cases. For those reasons, no one can deny that there is a problem and we need to discuss the solution.
I was most grateful to the noble Baroness, Lady Gardner, for mentioning Michael Jones. I found the research paper concerned in the Commons Library and I should like to read into the record a little more detail to point out the ludicrous situation. The consultation paper states:The dispute began after Mr Stanton, now aged about 90, planted a hedge of leylandii along the boundary between the two neighbours' houses. When the hedge reached 15 ft, Mr Jones complained his garden was being robbed of sunlight. In 1979, with the row of conifers at 25 ft, the first of dozens of solicitors' letters passed between them. Mr Stanton eventually agreed to trim the hedge back to 22 ft, but M r Jones wasn't satisfied. I n 1989, MrJones lopped 5 ft off the top and, the following year, another 4 ft. Writs followed and Mr Jones won a court ruling that the hedge could be 'maintained and repaired'. Then Mr Stanton, a former engineer, sued his neighbour for £32,000, but Birmingham County Court rejected his case. Mr Jones finally won the right to cut the hedge substantially and in 1996 the conifers were reduced to 12 ft.Mr Jones was also awarded his costs, said to be £50,000. However, this judgement is not of general application. In this case, the hedge marked the boundary between the two properties and was a party hedge to be maintained by the occupants on either side. The dispute reached the Court of Appeal in 1994 and was then referred back to the County Court in November 1995. There was scope for legal argument as to whether cutting off the tops of the trees in the hedge did or did not constitute maintenance. Mr Jones won the right to trim the hedge and has apparently trimmed the hedge for four years running and spent £650 in so doing. He hopes to regain that money via the small claims court. However, Mr Stanton has apparently now planted another leylandii inside his garden. Since that leylandii is on his side of the boundary, it is questionable whether anything can be done about it".That is the enormous extent to which a situation that ought to be capable of being resolved between two neighbours can reach.
I shall tell noble Lords of my experience when I bought my house. A massive leylandii fence stood between my back garden and the garden of my neighbour's house. When the house in question was built, my house and the others like it were not there. At some time in the past a previous owner decided to build a leylandii hedge to mask the sight of our houses from his. I do not object to that. However, the trouble was that, having been planted as dwarf trees, the leylandii were now around 30 feet high.
I spoke to the friend from whom I had bought my house. He responded that, "You can try with that neighbour, but you'll get nowhere. We've been sent away with a flea in our ear". I realised that I was duty 605 bound to say something and set off to see my neighbour to ask him whether he would be neighbourly. I discovered that the man had only been in the house for a short period. He told me that he had a neighbour along the street who had just had his hedge trimmed and that he ought to have had his done at the same time. Within a fortnight of me calling round, my neighbour had trimmed his hedge. He did not trim it as low as I would have liked, but he had done it willingly.
I believe that most of the disputes of which we hear could be resolved if suitable arbitration or conciliation arrangements were in place. I look upon Option 4, set out in the consultation paper, as giving the community, through the council, an opportunity to say, "Look, let us be reasonable". If the offending neighbour refuses to be reasonable then the local authority will have powers to lay a duty on that person to do what is necessary to reduce the fence. If that person does not comply, there will be penalties.
Michael Jones has asked me to say how delighted he and his friends are at the production of the consultation paper. They believe that the Bill before us may help a great deal. In a recent letter to me Michael Jones states that:Victims are old and weak and not able to stand up to an aggressive neighbour … Victims need something now—many old ones are dying—and not in peace. It is a gentle Bill which will convey the opinion of the Government that an injustice exists and [they are] willing to adjust the level of the playing field a little—at the moment the law is completely on the side of the perpetrator".Once more I congratulate the noble Baroness on taking the time and trouble to bring the Bill before the House. I believe that the Government will welcome this short debate because it provides my noble friend with an opportunity to give us the up to date position on the information that has been provided. My noble friend may rest assured that if, in the future, difficulties arise from whatever quarter, then on both sides of the House support is available in the shape, personality and charm of the noble Baroness and, of course, myself. We shall be more than happy to go in to bat in order to defend the Minister.
§ 7.47 p.m.
§ Lord Hardy of Wath
My Lords, I should like to speak briefly in the gap to express my support for the Bill and to congratulate the noble Baroness, Lady Parkes, on her initiative and the convincing arguments she has presented to the House in support of the measure.
I have also intervened because I have spent many years seeking protection for the countryside, and in particular for hedgerows. However, I accept that in cases where good neighbourliness has not applied, a measure of this kind is necessary. I express the hope that the Bill will soon become law and that those offending hedges will be reduced to heights which are not a nuisance, preferably when the bird breeding season is over.
I also express the hope that, just as Parliament would like to see this desirable legislation put in place, we shall also soon see the necessary steps taken by Her 606 Majesty's Government to secure the wider protection of rural hedgerows. They need a far greater degree and scale of protection than they have received so far.
§ 7.48 p.m.
§ Baroness Thomas of Walliswood
My Lords, I join with the noble Lord, Lord Graham of Edmonton, in thanking the noble Baroness, Lady Gardner of Parkes, for introducing the Bill and for explaining it in her customarily clear manner.
Some years ago I heard a talk on the radio that envisaged the whole of suburban England disappearing into a forest of leyland cypress at some point around the year 2000. Tempting though this might be in certain circumstances, certain knowledgeable people have realised for some time the fact that the leyland cypress is not a shrub or a hedging tree. In the words of Hillier's catalogue, it is,A large, noble tree of dense columnar habit and extremely vigorous growth".The RHS dictionary gives the ultimate size as 25 to 30 metres—that is 80 to 100 feet in old measurement—with a spread of four to five metres. In other words, it is totally unsuitable for any other than very large gardens or parks, where it makes a magnificent display.
This tree has been planted for hedging in enormous quantities since the 1960s—hence the forest analogy. One reason is that, because of its rate of growth, it is easy to bring it to that "nice little size" where the customer thinks, "That's a nice little tree to plant for my hedge", and goes out and does so. The trees that were planted 13 years ago are probably 80 feet high now, so we must take the matter seriously.
Sales of this tree have begun to slow down following all the discussions about it last year. However, a catalogue for this spring that I have at home still blithely reassures potential buyers that Leyland cypress is perfectly suitable for hedging if kept under control by trimming. There is the rub. The thing grows three to four feet a year and goes on growing at that rate, however old it is. That is the extraordinary thing. It does not seem to slow down very much. However, one must not let oneself be distracted by Leyland cypress; this debate is about hedges.
Boundaries in general and noise are the two major causes of inter-neighbour dispute in which everyone in a local authority becomes absorbed at one point or another. A number of hedges apart from leylandii can be a definite nuisance. I do not know how many noble Lords try to clear up around a holly hedge. The thickest of thick gloves are needed to protect oneself from the prickles on dead holly leaves. Yew has poisonous berries. Laurel quickly becomes extremely thick and needs hand pruning rather than trimming. Leaf litter can be messy in the autumn. When the leaves have fallen, the bare branches of some hedges do not preserve privacy. Unless there is a fence as well as a hedge, the hedge can let animals through. The neighbour, as well as the owner of a hedge, is obliged to prune, clip, cut or trim it. So there is a problem.
607 In that respect, the Bill is timely. Last year, a great deal of amusement was to be had from a campaign run by the Daily Mail, and more serious campaigners such as Hedgeline, which was formed by people who have been battered by the disputes that arise from hedges and are campaigning for a solution, have also played a part in attracting people's interest to this problem.
Our colleagues in another place welcomed the activities of the two MPs, Mr Rowe and Mr Jim Cunningham (to distinguish him from the other Cunninghams currently in the House of Commons), and supported the Bills that were put forward. They were similar, or ithntical, to the one that is before the House today. I join in that support.
As the noble Baroness pointed out, if one proposes to build, or builds, a fence or wall on a boundary—that includes boundaries in the countryside; the Bill does not merely refer to residential areas—that fence or wall must be limited. One cannot build a wall 30 feet high between oneself and one's neighbour, however much one dislikes the neighbour.
I undertook a small amount of consultation today. I can confirm that, locally, the consultation paper issued by the Government last year is being taken seriously. My mini-consultation turned up a 100 per cent decision to respond to the paper and the local authorities involved are currently about to discuss it. Officers are still working on the paper.
In one local authority, the tree officer is already carrying out part of the conciliation role envisaged by the Bill and has available for issue the Government's recent leaflet, The right hedge for you. That is a very proactive local government officer. An equivalent officer in another local authority is rather less proactive. Both have mentioned a point that no one else has mentioned; namely, that the visual effect of a hedge can be important from a wider perspective than simply the boundary line between two properties. Hedges play a part in the local suburban and even urban landscape. To take up a point made by the noble Lord, Lord Hardy of Wath, if in suburban and urban areas fences were substituted for all the hedges, there would be real loss of amenity in general in those parts of England. A balance has to be struck, in this as in so many other matters.
The only query that I have in regard to the Bill is whether its introduction comes at the right time. I know that the doctrine of the "unright time" is one which is too often prayed in aid. Nevertheless, with the consultation paper currently out and the response expected some time this spring, I am sure that the Minister will respond to that point. Do the Government feel that it is the right time to bring forward a piece of legislation, even if it is broadly in sympathy with one of the proposals in the White Paper.
With that reservation, we can give a warm welcome at least to the intentions behind the Bill.
§ 7.57 p.m.
§ Lord Dixon-Smith
My Lords, I join other noble Lords in congratulating my noble friend Lady Gardner of Parkes on bringing forward this small and relatively simple Bill. It is not easy, as we have heard, to deal with the question of trees, particularly overgrown evergreens, in urban areas. But an urban environment without any trees would be even worse. Not least among the problems that lie behind the Bill is the fact that we are discussing unreasonable behaviour by some individuals. I always think how tragic it is when, now and again, the necessity arises to legislate in order to control the unreasonable behaviour of certain individuals.
I speak as one who has a leylandii hedge. Sometimes I wish I had not planted it, but I have had it many years. I am all too aware of the immense hard work that such hedges create. However, there is no doubt that they are absolutely controllable, and, when properly controlled, they make a satisfactory green hedge or sidescreen. So whatever is the result of the Government's consultation, I hope that it will not come up with a ban on the dreaded Cupressus leylandii. It is not the Cupressus leylandii that is at fault; it is those who plant them.
The Bill suggests an ingenious solution to controlling the problem, using the Environmental Protection Act, in effect giving local authorities the right to judge whether nuisance is being created between neighbours. That is not unreasonable. Local authorities may not like the additional burden, but they are used to undertaking that task. There is a minor resource implication which I have no doubt the local authority association will throw into the debate with the Government at some point, but we need not concern ourselves with it tonight.
If the person who owns the hedge does not like the local authority's judgment under the Environmental Protection Act, he has the right of appeal to the magistrates' court. It can take a decision and if the court decides that the complainant is in the right and the person complained against does nothing, there is a heavy level of fines, up to scale five, £5,000. There are even additional penalties above that in the event that corrective action is not taken. So we are talking about a serious matter.
In principle, what lies behind this little Bill is absolutely correct. I hope that the Government will consider, whatever happens as a result of their consultation, that this route or method of control might be the appropriate way to deal with the matter, even if, in the end, they do not accept the wording of the Bill.
We must face another rather awkward reality. It is that the problem is not confined to unneighbourliness and cupressus leylandii hedges. In a different way, I bumped into a colleague in my office, my noble friend Lord Brabazon of Tara. Last winter he installed a satellite dish for his television set. It worked well and he was happy and rejoiced in the programmes he could get. Come about May, the picture began to go fuzzy until it finally disappeared. But it was his own trees 609 causing the problem, it was not a question of neighbourliness. In that instance his problem was that he lives in an urban conservation area and he had to obtain permission from the local trees officer to prune his trees—which he does every three years anyway. He has to pay £25 and apply for planning permission every time he does it.
That is a nuisance and a potential source of a great deal of unneighbourliness. People may plant trees which are all right and satisfactory from the point of view of the environment. But if they get between someone's satellite dish and the satellite, they may well be the cause of bad feeling. We need to consider it.
There is another aspect. Trees can also come between people and mobile phones. That does not matter if you are out on the street, using the mobile phone away from the home. Many people do not bother now to get landlines and have a permanent phone, they just work from mobile phones. Again, a tree could cause problems, if the tree happens to be between the house and the nearest aerial mast.
There are a number of other aspects to the problem that may cause unneighbourly feelings which merit consideration, before we finally say "yes" to something of this nature. So although I welcome the Bill, I hope my noble friend will forgive me if I say that I see it as a part of the consultation process that must go on. There are wider aspects to the whole subject. If we are to have legislation it needs to be something which will provide a satisfactory solution, not just to the big issues of boundary hedges, but the wider issue of potential interference with other modern amenities which people take for granted but which could be interfered with in an unfortunate way.
The definition of hedges in this little Bill is not adequate to deal with the problems that may arise from trees in urban areas. Therefore, we need to think carefully about the Bill. Nevertheless, the way in which it sets out to tackle the problem seems to me wholly commendable. I hope that after the Government have finished their consultation on the issue they will look with great care at using this route as a possible means of resolving matters. By and large, the cases we have heard about should never have come to be public issues in the first place. Au fond, they are matters of human behaviour and humans behaving unreasonably against the interests of the wider community. It is never a pleasure when one finds that happening and I know that we all wish that it did not. Unfortunately, one could argue that all legislation is only necessary because of human weakness.
I support my noble friend, but we need to consider the matter a little more carefully and take it further before we devise a final form for the legislation.
§ 8.6 p.m.
§ Baroness Farrington of Ribbleton
My Lords, like other noble Lords, I begin by thanking the noble Baroness, Lady Gardner, for introducing her Bill on residential hedgerows and for stimulating this debate.
610 It is said that there is an old English proverb for every occasion and today's debate is no exception. Apparently there is a proverb that runs as follows:He that plants trees loves others besides himself".If only that were a universal truth.
Unfortunately, some of the stories recounted today have shown that not everyone who plants trees has such good intentions at heart. We have been told about terrible conditions inflicted on people by ill-advised planting or lack of maintenance of boundary hedges. As the noble Baroness, Lady Thomas of Walliswood, said, cupressus leylandii has been mentioned but it is not the only culprit.
The most frequently mentioned problems, including those referred to by the noble Baroness, Lady Gardner, and my noble friend Lord Graham of Edmonton, are the reduction in light to homes and gardens and the blocking of views which may be views of the countryside or coast. It can cause difficulty with growing plants near the hedges and worries that roots might lead to property subsidence.
All those factors can lead to a general sense of aggression, being blocked in, a feeling that people's enjoyment of their homes and gardens has been spoilt. I join with noble Lords who referred to the scale of the problem faced by some people, including the elderly. A quiet word with the owner to point out the harmful effects of the hedge may be all that is needed, as my noble friend Lord Graham said. But when such an approach is rebuffed, the trouble seems to escalate. That has happened in all too many cases, leading to serious, lengthy and costly disputes, graphically illustrated by, among others, the noble Baroness, Lady Gardner and my noble friend Lord Graham.
As the noble Lord, Lord Dixon-Smith, said, it is a shame that the bad experiences of some may end up discouraging other people from growing hedges in their gardens. We all benefit from the pleasure of a well tended hedge. A good hedge can make an effective weather and dust filter, it is inexpensive and long lived and can encourage wild life and create a feature of beauty and interest in its own right.
As the noble Lord, Lord Dixon-Smith, said, if treated properly even leylandii—I confess to having a small number in my garden—can become an effective hedge. I join with the noble Lord in pointing out that they require a good deal of work and have a habit of growing at their most prolific rate during the time when noble Lords with party-political inclinations are involved in local elections. It would be wrong to condemn all hedges because of the problems caused by some.
The Government recognise that many people suffer under the shadow of very high boundary hedges and that the matter is of wider public concern. As noble Lords, including the noble Baroness, Lady Gardner, recognised, that is why we have taken the subject seriously and published a consultation paper. We are looking at responses to proposals that include both voluntary and legislative action as a means of dealing with it. The consultation period closes on 31st January. I assure all noble Lords, in particular the noble 611 Baroness, Lady Gardner of Parkes, that the Government have an open mind at this stage about the best way forward. All options have merit but obviously some have limitations.
I hope that the noble Baroness does not consider that I am being negative if I refer to some of the issues. It is useful to place them on record while people are still able to respond. Cur investigations have raised doubts about the effectiveness of the proposal in the Bill to add boundary hedges to the list of statutory nuisances in Section 79 of the Environmental Protection Act 1990. That Act was referred to by the noble Baroness, Lady Gardner, my noble friend Lord Graham of Edmonton and the noble Lord, Lord Dixon-Smith. During the passage of that legislation Parliament considered whether the definition of statutory nuisance should be widened, for example to include nuisance from food and security lights. It was concluded that statutory nuisance legislation was not the most appropriate way to deal with these problems. Among the issues considered were the additional burdens that such a move might place on local authority resources. For all of us with experience of local government, there is the additional difficulty of making what must be in many cases subjective judgments in dealing with the issue.
My noble friend Lord Graham of Edmonton referred to the cost to local authorities of implementing the legislation. That matter is discussed in the draft regulatory impact assessment which forms part of the consultation paper. We are therefore alive to the issue and shall take account of the resource implications. The effect of such a change to the law will be to give environmental health officers powers to investigate hedge problems and, where they are considered to constitute a statutory nuisance, to order remedial action. However, as the consultation paper indicates (for those who wish to check it, the reference is paragraph 3.13), Section 79 already defines statutory nuisance as including,any premises in sue.' a state to be prejudicial to health or a nuisance".For these purposes, "premises" includes land as well as buildings and so may cover hedges if they are prejudicial to health or are a common law nuisance.
In theory, the remedy exists and no change to the law is necessary. In practice, however, no one has successfully used these provisions to solve hedge problems because existing case law (not involving hedges) suggests flat, in deciding whether something is a statutory nuisance, account should be taken of the background and intentions of the legislation. These are concerned with issues of public health and mean that there must be a direct risk of disease or illness for the matter to be a statutory nuisance. For example, if someone could show that dust particles in the hedge foliage caused or aggravated respiratory problems or an allergy he might be able to use these provisions to remedy the situation. Where the person suffers stress-related illnesses, which we believe account for the vast majority of nuisance hedge cases, it is likely to be difficult to prove that the hedge rather than the dispute with the neighbour is the cause. To add hedges to the 612 list of statutory nuisances will not remove these difficulties. It appears to the Government that the approach in this Bill may be of no more use than the existing provisions in controlling boundary hedges.
Noble Lords, including the noble Baronesses, Lady Thomas of Walliswood and Lady Gardner of Parkes, raised the issue of the possible extension to hedges of the current planning control system which places limits on the height of walls and fences. Our study of the matter suggests that to bring the height of hedges within planning law may be disproportionate. Such controls would apply to all hedges, existing ones as well as any planted in the future, regardless of whether they caused problems. It would mean a spate of activity because to keep within the law owners would have to seek permission if their hedge exceeded a specified height limit. This would involve a major effort on the part of both hedge owners, including the noble Lord, Lord Dixon-Smith, and myself, and local authorities. Such a solution would also have other practical difficulties. For example, people might be uncertain as to at what point a growing hedge exceeded the height limit and thus required planning permission.
Whatever else the Government decide should be done to help people who are caught in these disputes it will never be enough simply to react after the problems have arisen. As the noble Lord, Lord Dixon-Smith, and the noble Baroness, Lady Thomas of Walliswood said, it is important that people are aware of the potential problem. The leaflet to which the noble Baroness referred gives useful advice to people about how to select the most suitable types of hedging plant for their gardens. Perhaps I should check whether those who are involved in party-political activity have a particular warning about the growing season coinciding with local elections. That leaflet shows alternative kinds of hedging plants that might be more suitable. It is important that we have been able to work with those involved in the horticultural industry to seek to ensure that problems do not arise in future.
Two other questions were raised. The noble Lord, Lord Dixon-Smith, raised the problem of interference with mobile telephones. Very early in my career in government I got into some difficulty at this Dispatch Box because I was unaware that mobile telephone masts disguised as plastic trees were acceptable in some parts of the country. I hesitate to comment on the problem experienced by his noble friend Lord Brabazon of Tara.
My noble friend Lord Hardy of Wath referred to the general issue of the protection of hedgerows. We share his concern. We must take care that any legislation in respect of residential garden hedges does not conflict with those aims. We are currently considering how the existing hedgerow protection legislation enshrined in the Hedgerows Regulations 1997 may be improved.
This debate shows that there is widespread and continuing concern about the problems caused by high boundary hedges. Although I have expressed reservations about the efficacy of the statutory 613 nuisance approach in this Bill, the Government have an open mind on all the options during the period of consultation.
I should like to assure my noble friend Lord Graham of Edmonton that in considering all these responses we will endeavour always to make sure that we can see the wood despite the trees. We can all make puns, as my noble friend knows. In response to the point raised by the noble Baroness, Lady Thomas of Walliswood, we will, in the light of responses to the consultation, be looking forward to what the Government can do to relieve this source of long running and distressing neighbour disputes.
§ Lord Graham of Edmonton
My Lords, my noble friend talks in terms of the closing date for receipt of consultation being at the end of this month. Has she anything to say about when the Government will pronounce their views on the consultation?
§ Baroness Farrington of Ribbleton
My Lords, my noble friend is far more experienced than I am in your Lordships' House and knows that I am not in a position to give a definitive response. The noble Baroness, Lady Gardner of Parkes, also raised this question with me in advance of the debate and raised the point that we will give very fair consideration that the Bill may be amended with her agreement were we to respond following the closing of the consultation. But I am not in a position to give a time-scale for the end of the consultation period and the Government's response to the points raised. We will take account of all the points that have been raised during the consultation. We will, in particular, have very great regard to the knowledge and importance of the issues that were raised during this debate as we strive to develop what this debate has made quite clear—what we all view as the need to identify practical common-sense solutions.
§ 8.21 p.m.
§ Baroness Gardner of Parkes
My Lords, I thank all those who have taken part in the debate. We have had some very valuable contributions.
I should begin by saying that amendments can be made to the Bill either in this House or in another place if the Government feel they are necessary. The noble Lord, Lord Dixon-Smith, referred to the definition of a hedge. The consultation document sets out that a civil legal judgment—I imagine that it was the Jones case—defined a hedge as,a number of wooded plants, whether capable of growing into trees or not, which are so planted as to be intended to be in line and which, when mature, to be so integrated together as to form both a screen and a barrier".Although the consultation document points out that the nature of that case—the noble Lord, Lord Graham of Edmonton made the point—means that it does not constitute a legal precedent, I remember Mr Jones telling me that the judge asked how one should define a hedge and then drew up that definition. It seems to me a very good one. Therefore, it would be very easy 614 to incorporate such a definition in the Bill by amendment. Certainly, the Government suggest in the consultation document using it as a basis of defining a hedge. That is very important.
Various points have been raised and I shall run through them. The noble Lord, Lord Graham of Edmonton, mentioned Mr Andrew Rowe's Bill. That was a much more complex Bill. It aimed at the same end, but the complexity of it made it a less satisfactory Bill than Mr Jim Cunningham's Bill. The very simplicity of this Bill makes it more effective. Mr Andrew Rowe started this whole process; we owe him thanks for that. The noble Lord, Lord Graham of Edmonton, also said that people are looking for hope. That is absolutely right. People are reaching a point where they feel that at long last there may be a chance of something happening.
A number of speakers, including my noble friend Lord Dixon-Smith and the Minister, mentioned cost and the issue of whether local authorities would face a financial burden. There are many areas in which local authorities are entitled to charge fees. Certainly, all planning applications are in that category. It may be that there is a case for local authorities being entitled to charge for such a service. I think it would be unfair to impose an additional financial burden on local authorities. But, again, that could be decided by regulation and not necessarily in primary legislation. The noble Lord, Lord Graham of Edmonton, said that 5,200 cases were reported to local authorities last year. He also said that Mr Jones had trimmed the hedge between the properties. And, yes, he confirmed to me the other day that he still trims that hedge annually. It is the right to trim the second hedge that has taken all these years. It is only because of it being a covenanted and managed estate, the Bournville Estate, and it is the estate owners who have been able to enforce covenants. That option is not open to most people, particularly if they are in a freehold property.
I am grateful to the noble Lord, Lord Hardy of Wath, for his contribution. I remember very well his debate early last year. That debate, which was of great interest to all of us, concerned country hedgerows. I remember discussing the difference between the residential situation and the rural one. Although the noble Baroness, Lady Thomas, said that some places are half rural—my noble friend Lord Dixon-Smith made the same point—there is in the Bill great discretion for the local authority. The local authority will know whether the hedge is a great asset, a great beauty, in the area, whether everyone wants to retain it, and whether the person complaining is being unreasonable; or whether, on the other hand, those involved have lost all their light, all their amenity. I think that we really should appreciate the experience and understanding of local authorities in these matters.
Opposite my home in Oxfordshire, which is in a conservation area, neighbours applied to convert a barn into a house. I thought that was a good idea because it was a disused property. I wrote to the local authority supporting the proposal. The property has a stone wall. But then I looked out one day and the stone 615 wall was so high that it cut out my entire view. The point was made that hedges can do the same thing. I went over to the will and measured it. It was 3.5 metres high. Additional stones had been put on top. I contacted the local authority but it told the owners of the property to apply for retrospective permission—and they obtained it. That is appalling. Had they said on the original application that they wanted to build the barn and add another 1.5 metres to the wall, I would have supported the conversion of the barn but would have asked the council to impose a condition to keep the wall at the historic height. The visual impact, whether of a hedgerow or of a wall, matters to people. It certainly matters to me, as I look out at that blank wall. I have been trying to encourage the owners to grow some ivy on it in order to improve the appearance. It is a nice stone wall but it is a great barrier. The visual impact of these hedges is an important aspect but it is not the only one.
The noble Lord, Lord Dixon-Smith, said that the Bill deals with matters of human behaviour. That is absolutely right. We are talking about anti-social behaviour. My Bill on noise was a parallel measure. For years and years, if people had to complain about noise they had to become personally and directly involved themselves. That was a great deterrent because the neighbour, knowing that you were the person who had complained, came in and said what he or she would do to you if you did not withdraw your complaint very quickly. But my Bill on noise brought in an independent decibel measurement and a means whereby someone who was not directly and personally involved in the issue was able to intervene. I believe that it has worked very well.
There may have been a time when there was not enough anti-social behaviour for us to need to legislate, but over the past few years there has been considerable support for all the measures dealing with anti-social behaviour. I think in particular of such behaviour on estates—people had stopped wanting to live on such estates because of the anti-social behaviour of others. Everyone realises that anti-social behaviour is an important issue.
The noble Lord, Lord Dixon-Smith, said that we do not want a ban on hedges. Of course we do not. I am not suggesting that for a minute. During my speech, I made the point that perhaps in a large area a delightful hedge which does not take too much light from anyone is the very thing one wants. The noble Lord, Lord Dixon-Smith, referred to his own leylandii—I confirm what the Minister said that leylandii are not the only culprits—and said that he controls them. That is what the Bill is about. It does not propose a ban or abolition. It is a measure to control hedges to a reasonable height. I think that the noble Lord brought in red herrings with regard to satellite dishes and mobile phones.
616 The conservation area point is an important one. In my Oxfordshire village there is a hedge of leylandii which is close to 100 feet high. It goes along someone's boundary on the road, so it does not affect anyone in terms of light. But the property has changed hands. The elderly people who live there did not do anything about them and the people who bought the house have had to go to all kinds of trouble to obtain planning permission to reduce their height. The suggestion that was put forward by someone—I think it was put forward as a negative rather than a positive suggestion—that we should control all hedges and demand that all hedges should be kept to a certain height is nonsense. Not for a moment does the Bill suggest such a thing.
The noble Baroness, Lady Farrington, pointed out how well the quiet word of the noble Lord, Lord Graham, had worked on his neighbour. I think that the quiet word of the noble Lord, Lord Graham, would be a little more effective than the quiet word of an elderly and possibly timid old soul. I do not know that I would not react favourably if the noble Lord, Lord Graham, came round and had a quiet word with me. It depends on the person approaching you as well as what he is saying and also the attitude of the person you are approaching. Some people are unhelpful whatever your approach.
The noble Baroness, Lady Farrington, said that the statutory nuisance route may not be the best way of dealing with this problem. I must ask her: what is the best way? The Bill is a way, and a good way, and no one else has come up with a better alternative. The noble Baroness said that local authority judgments must be subjective. Of course they must. Every local authority judgment is subjective. It is suggested in paragraph 3.27 of the document that guidelines would be put forward. That is very desirable. But at the end of the day it comes down to a subjective judgment. Unless something can be scientifically measured—perhaps a sample of bad food where the contamination level can be assessed scientifically—there are always subjective judgments. In any planning matter certain things are clear cut, such as whether a building is taking away the light or whether it infringes someone else's property. But the aesthetics of planning are very much a subjective judgment for every planning authority.
On the Minister's recommendation, I looked up paragraph 3.13 of the consultation paper, which says that there is no need to do anything because all the powers already exist. If that were really a practical matter, people would be using those powers now, but it is almost impossible for people in terms of cost and time. The noble Lord, Lord Graham, said that this has cost 20 years in terms of time. What is 20 years in most people's lives? It is a fairly large slice wasted in arguing over a distressing matter of a hedge that could he dealt with so simply under my Bill.
617 The noble Baroness, Lady Farrington, referred to stress. Hedgeline has quoted to me cases in which people have died because of stress leading to a heart attack. It believes that such cases have been directly linked to the aggravation caused by these problems. The noble Baroness also referred to the existing provisions for controlling hedges. What did she mean by that? I am not aware of any existing provisions.
§ Baroness Farrington of Ribbleton
My Lords, I shall check what I said by reading Hansard carefully. I am clear that I intended to refer to the existing provision for dealing with a statutory nuisance.
§ Baroness Gardner of Parkes
My Lords, I thank the noble Baroness for that intervention. That makes sense.
I emphasise that not every hedge becomes a nuisance. The procedure would start with a complaint by someone that he or she was adversely affected. The procedure would then start to roll. Although it is suggested in the Environment Protection Act that local authorities themselves might go round looking for problems, my experience is that local authorities have enough problems to deal with without going to look for them. They would wait until someone made a complaint. But when that 618 complaint was made, they would investigate the situation and the particular case. That would be good.
The Minister said that after the results of the consultation the Bill might be a vehicle. If there were anything to be gained by holding back later stages of the Bill until after the consultation exercise, I would certainly arrange that.
§ Baroness Farrington of Ribbleton
My Lords, for the record, it is important that I stress that I acknowledged that this question had been raised and undertook to consider it as an option.
§ Baroness Gardner of Parkes
My Lords, I understood exactly what the Minister said in that respect. I was the person who said to the noble Baroness that the result of the consultation might be such that this vehicle would be appropriate. If it is the appropriate vehicle, the possibility of amending the Bill should perhaps be held over a little longer. Otherwise I would press to move on with the other stages of the Bill after what I hope will be its successful Second Reading today. However, we can discuss at a later stage whether there is any advantage in holding back action on the next stage of the Bill. Meanwhile, I ask the House to give the Bill a Second Reading.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at twenty-two minutes before nine o'clock.