High Hedges Bill [H.L.]

HL Deb 28 February 2003 vol 645 cc497-516

Report received.

Clause 1 [Complaints to which this Act applies]:

Lord Evans of Temple Guiting moved Amendment No. 1: Page 1, line 6, leave out from "being" to "a" in line 7 and insert "adversely affected by the height of

The noble Lord said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2, 3, 4, 10, 11, 12, 13, 14 and 20.

I am sorry that I was abroad on 9th January when the Committee stage of the Bill of the noble Baroness, Lady Gardner of Parkes, took place. Although I was not present to hear the debate, I hope that the various amendments that appear in my name on the Marshalled List show that the Government, through my noble friend Lord Bassam of Brighton, were listening to, and have taken heed of, the concerns of the House.

The first group of amendments deals with the grounds on which someone can complain about a neighbouring high hedge. There was much discussion, both at Second Reading and in Committee, about the merits of extending the grounds of complaint beyond unreasonable obstruction of light. Examples were given of where hedges had caused loss of sunlight, loss of view, loss of amenity and property damage. My noble friend Lord Bassam of Brighton indicated that the Government accepted in principle that some extension of the grounds of complaint would be advisable and that we would consider the extra issues raised.

Our proposal in Amendment No. 1 is to allow people to complain to the local authority if reasonable enjoyment of their property has been adversely affected by the height of a high hedge. A "high hedge" is defined in Clause 2, about which we shall hear more later. The effect of the amendment is that the local authority could be asked to intervene if the excessive height of the hedge had resulted in some loss of amenity.

The wording offers flexibility to deal with a range of problems associated with high hedges. In our view, this would include obstruction of daylight and sunlight, either jointly or as separate issues—a matter raised in Committee by the noble Baroness, Lady Gardner of Parkes—and would also cover loss of view, which the noble Lord, Lord Methuen, suggested was an important consideration.

In addition, the amendment would allow someone to bring a complaint if their garden was small and was dominated by the neighbouring hedge, making their situation uncomfortable. Such circumstances were mentioned by the noble Baroness, Lady Hamwee.

The issue of damage to plants was also raised in Committee. This, too, would be covered by Amendment No. 1, provided that the damage was attributable to the height of the hedge. For example, a tall hedge might prevent light reaching the plants. In addition, the hedge might be too high for the complainant to trim branches overhanging his property and shielding plants from that vital source of moisture, rain.

This example demonstrates that the difficulties people encounter in trying to exercise their common law rights to deal with the overhang from hedges could also fall to be considered by the local authority under Amendment No. 1, provided that the difficulties were directly tied to the height of the hedge.

Amendment No. 1 brings issues together within the scope of the Bill. Amendment No. 2, on the other hand, specifically excludes complaints about the effect of the roots of a high hedge. In particular. this means that complaints about root-related property damage would not be covered. As my noble friend Lord Bassam of Brighton indicated in Committee, the Government consider that other remedies are available to deal with such matters. In addition, the issues tend to be about who is liable for the damage and the level of compensation rather than about remedial works to the hedge.

The noble Baroness, Lady Gardner of Parkes, queried this, suggesting that there might be a direct relation between what you see of a hedge above ground and the root growth below. This is not, however, necessarily the case. Maintaining a hedge at a particular height does not necessarily mean that root growth will be similarly restricted. Certainly, reducing the height of an overgrown hedge will not cause roots to die back by a comparable amount.

In addition, where trees are implicated in subsidence damage, the problems arise not from the direct effect of the roots on the building but from the indirect effect. On shrinkable soils, particularly some of the clays, extraction of moisture by roots will result in that soil shrinking, thereby reducing the support to foundations.

We are aware that reducing the height of a hedge is often advocated as a means of lowering the risk of property damage through subsidence. The theory is that less foliage means less uptake of water from the soil. However, this theory is not yet proven. It is the subject of research that the Government are sponsoring with the insurance industry and other partners. This shows how complex is the subject of property damage, especially when it is as a result of subsidence, and reinforces the Government's view that it is best dealt with elsewhere rather than through the Bill.

The remaining amendments in the group are all consequential upon Amendment No. 1. In particular, Amendment No. 10 requires the local authority, when determining complaints, to decide whether the height of the hedge in question is adversely affecting the complainant's reasonable enjoyment of his or her property, and if so, what, if any, action should be taken to remedy the problem or prevent its recurrence. In doing so, the local authority is required to consider all relevant factors and to assess each case on its particular merits.

As promised in Committee, the Government intend to publish guidance to local authorities on the legislation. We envisage that such guidance will need to deal with the full range of issues that local authorities could be asked to take into account. It would probably expand upon the advice in our leaflet, Over the Garden Hedge. This contains information on issues such as safe maintenance, privacy, loss of sunlight, obstruction of daylight and blocking of views.

I would also repeat the "cast-iron assurance" given by my noble friend Lord Bassam of Brighton that there will be prior consultation on the guidance with a range of interested organisations, including, of course, Hedgeline. They will have the opportunity, therefore, to comment on and influence its content.

Moving on to Clause 5, Amendments Nos. 12 and 14 provide that a remedial notice must specify what action should be taken in relation to the hedge with a view to remedying its adverse effect. If the local authority is so minded, it can also require action to be taken to prevent the adverse effect recurring in the future. This could include long-term maintenance of the hedge.

I should also make clear that reduction in the height of the hedge is not the only course of action that can be specified in a remedial notice. There is flexibility to tailor the action to the problem. In some cases, therefore, an appropriate remedy might well include reducing the width of the hedge as well as its height.

Finally in this group, Amendment No. 20 allows us to extend the scope of complaints covered by the legislation, if necessary, through regulations rather than further primary legislation. It provides us with the flexibility to respond quickly to changing circumstances and to new and other problems.

I am sorry to speak at such length, but I hope that I have indicated how this group of amendments will address a number of concerns raised in Committee. I beg to move.

11.15 a.m.

Baroness Hamwee

My Lords, I strongly welcome the amendments. Not only do they meet points made at the previous stage, but they seem to me—I hope my interpretation is right—to indicate that the Government are firmly behind the Bill and intend to see that it becomes law. That would be a very good thing indeed. Credit is due to the noble Baroness, Lady Gardner, for introducing the Bill and to the Government for recognising what is needed.

Will the Minister expand on an area that I raised in Committee; namely, how the choice will be made as to whether a complaint should relate to, and in particular whether an offence is committed by, an "owner or occupier"? Those words occur throughout the Bill. I am concerned about the short-term occupier whose tenancy agreement or licence may not state clearly where liability falls in relation to this kind of maintenance, using the word in its widest sense. It seems to me that it is entirely wrong, for instance, that a licensee who does not expect to have to pay the cost, which could be considerable, or, most particularly, incur the possibility of being penalised for committing a criminal offence should be placed in that position. I know that the Minister has considered this point and I am grateful for the notes from his officials, who suggested—and I took the hint—that I might raise it after welcoming the government amendments.

Lord Methuen

My Lords, I thank the Minister for what he has done in support of the points I made about loss of view. We shall come to my other points later.

Baroness Buscombe

My Lords, we on these Benches are grateful to the Government for showing such support for the Bill. I am afraid that I cannot share the optimism of the noble Baroness, Lady Hamwee, who expressed the hope that the Bill will complete its passage in another place. We can but hope.

Lord Graham of Edmonton

My Lords, I say to the noble Baroness, Lady Buscombe:"O ye of little faith". I honestly believe that preparation for eventual legislation has been undertaken by the Minister and his department to a better extent than I can recall on many a Private Member's Bill in the past. Government spokesmen have consistently adopted a neutral attitude to Private Members' Bills and have not involved themselves in reshaping such Bills.

The noble Baroness, Lady Gardner of Parkes, and I have pursued this matter for four or five years—or longer—partly as a result of our direct involvement in certain concerns but, in general, taking up the cudgels on behalf of thousands of people in this country who have been so frightened and terrorised by nasty neighbours that they want someone else to take the matter up.

The Government's approach has been a revelation to me. They were convinced, following a survey about three years ago, that this is the route that the public want; namely, the involvement of local authorities. Since those days, not only have they been a listening Government; they have been an actively listening Government. I can see in my mind's eye, over the past period, a gradual acceptance that the issue will not go away but must be tackled. The noble Baroness, Lady Gardner, has carried that burden the most. Given that at one time there was no legislation on this matter, and that now we have this Bill and a respective comparable Bill in the name of Stephen Pound in the Commons, I am certain that fair-minded people, who are not all on my side of the House, will recognise that something must be done. Amendments need to be made.

The Minister and his advisers have decided to put the Bill in the best shape they can. The beauty of it is that that is not the end of the story. When the Bill goes to another place and is read alongside Stephen Pound's Bill, there will be the opportunity to synthesise the best in both Bills. That is why I say to the noble Baroness, Lady Buscombe, "O ye of little faith".

The Minister apologises for being on his feet, but almost every word he said was music to my ears, because it was all positive. He was trying to strengthen the Bill and take issues into account.

I was heartened by what he said in confirmation of what the noble Lord, Lord I3assam, said at a previous stage. He said that among the bodies to be consulted would he Hedgeline, which is the major, voluntary, consumer-driven body dealing with this matter. It has said all along that the substance for real progress would be seen in the guidelines issued as a guide to local authorities and their officers. I can tell the Hedgeline people that they have got what they wanted; they may not have the legislation that they want, but they will have an opportunity to influence the legislation. The Minister's advisers are reasonable, sensible and responsible people; if the people from Hedgeline sit around a table with them, and present a good case, the Minister's advisers will take it on board. I am grateful to the Minister and his advisers, and wish them well.

Lord Phillips of Sudbury

My Lords, I apologise for not contributing to this Bill earlier, which I was prevented from doing. In 26 years as the legal eagle on the "Jimmy Young Show", there was no more persistent cause of complaint than the matter dealt with in this Bill. I congratulate the noble Baroness, Lady Gardner, on introducing it.

I shall make two points. First, my noble friend Lady Hamwee commented on tenants and occupiers under licences. At the least, a provision should be inserted into tenancy and licence agreements—perhaps only into shorthold agreements—that the landlord could require consent before a tenant or licensee utilised the powers of complaint under the Bill. A shorthold occupation sometimes takes place while the owner is away temporarily. That is quite often the case. There is no more important matter for the owner of a house than good relations with a neighbour. It could be extremely destructive of good relationships if a tenant, out of what a landlord might think was an excess of zeal, was to start a complaint action. That could be extremely deleterious to the relationship between the landlord and the neighbouring occupier.

Baroness Gardner of Parkes

My Lords, I place on record my thanks to the Minister and to the very able staff in his department for the time they have given to considering the real problems of so many people suffering from loss of enjoyment of their homes and gardens, which this Bill, when it becomes law, will help to alleviate.

Time has been made available for detailed discussions and full consideration of the exact wording required to make the Bill effective. I have been able to air fully not only my own views but those of the many who have written to me about the Bill. It is for that reason that I welcome these amendments.

It is essential that the guidance for the Bill, when published, makes clear that the grounds for complaint are now greatly widened. Although the BRE guidelines are still left as a factor to be considered, they are just one of many factors to he considered. The noble Lord, Lord Bassam, stated in Committee: The important thing about the Bill is that it considers the impact of the high hedge".—[Official Report, 9/1/03; col. 11371 I thought that he had summarised the whole aim of the Bill.

We have now reached a moment of hope for many hedge sufferers, but I give a word of warning. There is still a long way to go. Even when a Bill becomes law, regulations and guidance need to be drawn up. I welcome the Minister's comment that consultation will take place at that point. It is important to get the details right, so people will still need to be patient for the time that will take.

It does not matter whether it is my Bill, or the similar one that Stephen Pound is presenting to the Commons—which I hope will incorporate our improvements—that reaches the statute book. Legislation on the subject is needed. The noble Lord, Lord Graham, referred to the "eventual" legislation; I hope that one of the two Bills makes the statute book this year, which would prove our doubtful view on these Benches to be wrong.

I shall leave it for the Minister to comment on the points made by the noble Baroness, Lady Hamwee. With regard to the remarks of the noble Lord, Lord Phillips, I am involved in many tenancy agreements myself, and it should not be difficult for a landlord to put a clause into an agreement. I do not believe that the Bill should put an obligation on the landlord. I leave the legalities of that point to be considered by the Minister.

This group of amendments is about the grounds for complaint, the complaints procedure and remedial notices. Amendment No. 1 is a cheering amendment. It is so much better to be dealing with the adverse effect than the much narrower wording, "obstruction of' light". The new wording has the power to improve people's lives.

Amendment No. 2 clarifies the root issue, and I accept that. Amendment No. 3 is similar to Amendment No. 1, and helps to clarify that it is the impact of the hedge that matters, not where it is. Amendment No. 4 is another point of clarification, and I welcome it.

Amendment No. 10 makes it clear that activities such as gardening and sitting in the garden are to be considered. The wording covers the point that I raised in Committee, in making it clear that the Bill deals with "domestic" property.

Amendment No. 11 is much more important than it might seem at first glance. It means that the authority will need to consider that a hedge has two sides and a top and can grow back almost as quickly as one can cut it. The maintenance referred to as "preventing its recurrence" is as valuable as the "remedying" part.

Amendments Nos. 12, 13 and 14 are covered by what I have already said.

Amendment No. 20 is a most important part of the Bill and of particular value to those who presently feel that the Bill does not go far enough. The words in the new text are a great improvement on the words in the Bill. Any extension beyond domestic property would need to be carefully assessed. The aim of the Bill is to help people to enjoy their own homes. Getting the precise definition of a hedge right is far from easy, and only time will test the present definition. I shall say more on the subject of deciduous hedges when we deal with the next group of amendments, but paragraph (b) of Amendment No. 20 may prove very helpful, as it gives power to amend the definition of a hedge.

11.30 a.m.

Lord Evans of Temple Guiting

My Lords, I should like to add to the compliments that have been thrown around the Chamber by congratulating the Bill's originator, the noble Baroness, Lady Gardner of Parkes, on her wonderful work. Many noble Lords also mentioned the way in which the Bill team has approached the matter—by talking to everyone who had a view on it. Through sensitive consultation, the team has reached an outcome with which I think we are all rather happy.

The noble Baroness, Lady Hamwee, asked whether the Government are behind the Bill. The Government are enthusiastically behind it. I do not wish to disagree with the noble Baroness, Lady Buscombe, who is a good deal more experienced than I, but I think that, with such great support, there is no real reason why the Bill should not go through another place and become law.

The noble Baroness, Lady Hamwee, is concerned about short-term occupiers and whether the burden of complying with remedial notices will fall on short-term occupiers, especially if it requires major renovation of a neglected hedge. Under the Bill, the remedial notice is not served on or addressed to a particular person; it runs with the land in question and is binding on whoever owns or occupies it. Who out of the owner or occupier, assuming they are different people, is responsible for complying with the terms of the notice will depend on the contractual arrangements between them. However, general provisions in the Public Health Act 1936 relating to powers of the courts to require an occupier to permit work to be done by an owner apply also so as to give the owner the right to comply with a remedial notice.

Where the requirements of a remedial notice are breached, any person who is then the owner or occupier of the land where the hedge is situated is guilty of an offence and liable on conviction to a fine. Where there is both an owner and an occupier, guidance would advise local authorities to direct enforcement action at the person who has the responsibility for the hedge; otherwise it is likely to fail. I hope that that explanation is helpful to the noble Baroness, although it may not provide all the assurances that she seeks.

The noble Lord, Lord Phillips, asked about the landlord's consent. The guidance I have outlined will advise that that is good practice, especially where there is short-term occupancy.

This has been an interesting debate. I am particularly grateful for the great support from my noble friend Lord Graham and for all his comments.

Baroness Hamwee

My Lords, before the Minister sits down, can he assure the House that the Law Society will be included among those consulted on the guidance? I think that it may have specific points to make on matters such as enforcement and the burden running with the land.

Lord Evans of Temple Guiting

Yes, my Lords, I can confirm that the Law Society, and as many other interested parties as we can think of, will be consulted.

On Question, amendment agreed to.

Lord Evans of Temple Guiting moved Amendments Nos. 2 to 4: Page 1, line 8, at end insert— (1 A) This Act does not apply to complaints about the effect of the roots of a high hedge. Page 2, line 2, leave out from "be" to end of line 3 and insert "adversely affected by the height of a high hedge situated on land owned or occupied by another person, Page 2, line 6, leave out from "to" to end of line 9 and insert "the effect of the height of a high hedge on the complainant's reasonable enjoyment of any domestic property shall be read as a reference to the effect that it would have on the reasonable enjoyment of the property by a prospective occupier

On Question, amendments agreed to.

Clause 2 [High hedges]

Lord Evans of Temple Guiting moved Amendment No. 5: Page 2. line 11, leave out from "means" to end of line 13 and insert "so much of a barrier to light or access as—

1. (a) is formed wholly or predominantly by a line of two or more evergreens; and
2. (b) rises to a height of more than two metres above ground level."

The noble Lord said: My Lords, in moving Amendment No. 5, I also speak to Amendments Nos. 8 and 9. The definition of what constitutes a high hedge is central to the Bill, yet, as debate in Committee revealed, many people find the existing wording unclear. The term "barrier" seemed to cause particular difficulties. Amendments Nos. 5, 8 and 9, therefore, offer a number of improvements. It would probably be most helpful if I ran through the amendments individually and then said more about how we envisage that the definition, as a whole, will work.

Amendment No. 5 goes to the heart of the matter. It defines a high hedge as so much of a barrier to light or access as is formed, wholly or predominantly, by a line of two or more evergreens and that rises to a height of more than two metres above ground level. The first point to note is that the use of the term "barrier" has been refined. The Bill now refers to a barrier to light or access. That makes it clear that we are dealing not just with features that restrict physical access, which was of concern to the noble Baroness, Lady Hamwee. The qualification that the hedge must be formed wholly or predominantly of two or more evergreens is also significant. This brings mixed hedges within the scope of the Bill. including the example given by the noble Baroness, Lady Gardner of Parkes, of a leylandii hedge containing a single lime tree. The two metre height limit remains unchanged.

Amendment No. 8 makes it clear that references to evergreen trees or shrubs include semi-evergreen species such as privet, which loses some or all of its leaves in winter the further north one goes.

Finally, Amendment No. 9 introduces the concept that it is only gaps above two metres that are important in determining whether a hedge is a barrier to light or access. That should go some way to meeting the concerns expressed by the noble Lord, Lord Monson, about cases in which the lower branches of an established hedge have simply dropped off or, indeed, been removed.

Taking the definition as a whole, we envisage that local authorities would ask themselves the following series of questions when considering a complaint under this legislation. First, they would look at the hedge that is the subject of the complaint and ask whether it acts, to some degree, as a barrier to light or access, even though it might have gaps in it. Secondly, are there two or more trees or shrubs in it, and are they roughly in line? Thirdly, is the hedge comprised wholly or predominantly of evergreen or semi-evergreen trees or shrubs? Finally, is it over two metres high?

If the answer to those questions was "yes", the local authority would go on to consider the effect of the hedge on the complainant's reasonable enjoyment of his property, in accordance with Clause 1 of the Bill. That is the basic approach that we would expect local authorities and others to adopt in determining whether a particular hedge is one to which the Bill applies. I beg to move.

Lord Methuen moved, as an amendment to Amendment No. 5, Amendment No. 6: Line 4, leave out "evergreens" and insert "trees or shrubs

The noble Lord said: My Lords, we discussed a similar amendment to Amendment No. 6 and my Amendment No. 7 at Committee stage. Both the noble Baroness, Lady Gardner of Parkes, and I have had letters concerning the adverse impact of hedges or barriers composed of deciduous trees. Interestingly, the letters refer not only to adverse effects such as loss of light, but also to the large amount of leaves and other debris such as seeds which may he deposited in the neighbour's garden. It is not my wish to curtail well-kept domestic or agricultural hedges by these amendments.

I am glad to note that the Minister has moved somewhat in my direction in his Amendment No. 8. I looked up the definition of "semi-evergreen" in the Royal Horticultural Encyclopaedia of Garden Plants. "Semi-evergreen" is defined as follows: Describes a plant that retains most or some of its foliage throughout the year".

Although that definition will cover plants such as privet, I understand that the Minister's officials consider it to include only live foliage and not dead foliage such as may remain on beech hedges over winter. The definition would exclude beech. I should prefer to define out-right the inclusion of both evergreen and deciduous species within the Bill.

I hope that the Minister is able to accept my amendments, which I do not think significantly alter the tone of the Bill. However, I note that under Clause 16, as amended by his Amendment No. 20, he will he enabled to include deciduous hedges within the scope of the legislation should it prove necessary at a later date. For the record, I seek his confirmation that that is so. I beg to move.

Baroness Hamwee

My Lords, Amendment No. 5 is extremely helpful. I was beginning to think that I was going mad trying to define "barrier" the last time around. Can the Minister confirm that describing a hedge as a barrier to access does not preclude a situation in which access would not be permitted as a matter of law because it is not on the property of the complainant? In other words, one would need the permission of the owner of the harrier to get access to the property. I think that must be the case, but perhaps the Minister can give me that assurance.

Lord Phillips of Sudbury

My Lords, I support the amendment proposed by my noble friend Lord Methuen. It is well known that beech hedges can he very dense and retain much of their foliage throughout the year. That can also be the case with oak hedges. Above and beyond that, hawthorn and blackthorn hedges with briar, bramble and ivy growing up through them can provide a completely dense barrier. I have them on a bit of my land, and they are at least as obstructive of light as leylandii.

Vis-à-vis the question of my noble friend Lady Hamwee, does "access" include of air and access of view?

Lord Graham of Edmonton

My Lords, I am sure the Minister will deal adequately and sympathetically with the points that have been raised. But I was struck by the cogency with which he set out exactly what we are about. No doubt his advisers are listening and I hope that some way or other that particular stanza would be well received throughout the body of people that I speak to regarding how we are able to define the hurt which is suffered by neighbours and the manner in which this problem will be dealt with.

It is helpful to try to get the legislation right at this stage, but we have also to get through the consultation process on the guidance and the Bill's stages in another place. Normally on Report we can virtually see the light at the end of the tunnel, but with this particular issue, given the timing and the opportunities, we are some way away from that. The Minister has given us his definition of what the Bill is about, the basis of complaints and the guidance that local authorities will have. That has been very helpful.

11.45 a.m.

Lord Evans of Temple Guiting

My Lords, Amendments Nos. 6 and 7 would include in the Bill hedges formed as deciduous trees or shrubs as well as evergreens. The Government continue to have considerable reservations about extending the scope of the Bill in this way. There is no doubt that hedges formed as deciduous trees or shrubs can sometimes cause problems, but for every letter we receive about such matters, we get hundreds of complaints about evergreen hedges right across the country. Complaints about deciduous hedges are, therefore, isolated, although those who are affected by them are active in their protests.

There is no evidence of a widespread problem that would justify intervention through legislation. This tends to be borne out by the experience of Hedgeline members. We understand that the vast majority of their problem cases are with evergreens. Cases involving deciduous hedges are rare. In addition, consultation supported focusing legislation on evergreen hedges, at least initially. We consider, therefore, that the case has not yet been made for extending the legislation to all hedges.

I remind noble Lords that the Government's commitment is to legislation to give local authorities powers to intervene in neighbourhood quarrels about overgrown garden hedges. It was not to provide the answer to all tree-related problems. Nor was the objective to protect domestic properties from being unreasonably deprived of the light and warmth of direct sunlight.

Having said that, I can confirm to the noble Lord, Lord Methuen, that Clause 16 allows us to amend the definition of a high hedge—for example, to include those formed of deciduous trees or shrubs—through regulations. This means we can reopen the issue without having to wait for further primary legislation if there is evidence that such hedges are a much wider cause for concern than we appreciate at present. With the assurance that we will return to the matter if experience shows it to be necessary, I hope the noble Lord will withdraw his amendment.

On the questions put by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Phillips of Sudbury, I confirm that the barrier to access relates to effect, including access to air and view. It is not a question of whether we have legal access to land. Incidentally, I strongly disagree with the noble Lord, Lord Phillips, about beech hedges. I planted a beech hedge about four years ago, and it grows at about a quarter or half an inch a year. When the hedge becomes a problem, my great-grandchildren will probably have to deal with it. This is not the case with evergreen leylandii. To mention beech hedges and leylandii in the same breath does not reflect well on that most beautiful shrub, the beech.

Baroness Gardner of Parkes

My Lords, I have listened to the debate on the amendments with interest. I welcome the change in definition, but I have great sympathy with the amendment of the noble Lord, Lord Methuen. I get a lot of letters about deciduous trees. The only reason why I do not support his amendment, which I hope he will withdraw, is because at one of the meetings where we consulted with the department and went into the matter in great detail, it was pointed out to me that the consultative document High Hedges: Possible Solutions was focused on evergreens and the 3,000 responses that were received—a very large number—were on evergreens. I accept the Government's view that there has not been adequate consultation on this yet.

I would like to read out a point made in a letter to me from someone who suffers from an alder hedge. He is a notary public and writes splendid letters. On when the Bill will become law, he says: The message to those whose activities are complained about will be loud and clear: 'Go off to your local nurseryman or garden centre and order a sapling of common alder"' he gives its botanical name— 'plus one further sapling for every two linear metres of your hedgeline. Plant them two metres apart and by the time your local authority gets round to requiring you to trim your evergreen hedge back to two metres in height, your alders will almost certainly exceed two metres and from then on will grow about a further metre each year and will very effectively block your neighbour's sunlight with complete immunity from the law'''. This is quite fascinating. Who knows whether that might not become the habit? The Minister gave the odds of complaints about evergreens as against deciduous trees as about 100 to 1. It might be that once we have solved the evergreen problem. deciduous trees become the major problem. I believe that the Government have answered that by bringing forward Amendment No. 20, which will give them the power, if that proves to be the case, to deal with it at that time. For that reason, I ask the noble Lord, Lord Methuen, not to press his amendment today.

Lord Methuen

My Lords, I thank the Minister for his comments. The assurance I sought will be covered in Clause 16 as a result of his amendment. I beg leave to withdraw the amendment.

Amendment No. 6, as an amendment to Amendment No. 5, by leave, withdrawn.

Amendment No. 5 agreed to.

[Amendment No. 7 not moved.]

Lord Evans of Temple Guiting moved Amendments Nos. 8 and 9: Page 2, line 15, after "shrub" insert "or semi-evergreen tree or shrub Page 2, line 16, leave out from "is" to end of line 18 and insert "not to be regarded as forming a barrier to light or access if the existence of gaps significantly affects its overall effect as such a barrier at heights of more than two metres above ground level.

On Question, amendments agreed to.

Clause 4 [Procedure for dealing with complaints]:

Lord Evans of Temple Guiting moved Amendments Nos. 10 and 11: Page 3. line 2, leave out paragraph (a) and insert— (a) whether the height of the high hedge specified in the complaint is adversely affecting the complainant's reasonable enjoyment of the domestic property so specified; and Page 3, line 7, leave out "any such obstruction" and insert "the adverse effect

On Question, amendments agreed to

Clause 5 [Remedial notices]

Lord Evans of Temple Guiting moved Amendments Nos. 12 to 14: Page 4, line 9, leave out from second "that" to end of line 11 and insert "the height of that hedge is adversely affecting the complainant's reasonable enjoyment of the domestic property specified in the notice; Page 4, line 13, leave out "any such obstruction" and insert "the adverse effect Page 4, line 17, leave out "any such obstruction" and insert "an adverse effect

On Question, amendments agreed to.

Baroness Gardner of Parkes moved Amendment No. 15: Page 4, line 25, leave out paragraph (b).

The noble Baroness said: My Lords, I have tabled this amendment for consideration today for two reasons.

First, I have had many letters since Committee stage stating that nothing will help the writer but complete removal of the neighbour's hedge. Secondly, others have sought clarification about what they are entitled to do with their own hedge, more especially if they are in a conservation area.

I am unable to judge whether those who have written in support of total removal are correct in what they say, and, indeed, that only the council officers who attend would be able to assess the position. However, I note that the Bill rules out any possibility of the council ordering a hedge to be removed. I ask why we should take away the council's discretion in this matter. Surely we should leave open as many options as possible to resolve these situations.

On the second point, I am now convinced that a number of people are more than willing to undertake controlling their own hedges, but wonder what technical procedures are involved and whether, if they are in a conservation area, they would need to make a full planning application.

It would be most helpful if the Minister could explain the Government's view on these points and, at the same time, reconfirm that none of the amendments before the House today would alter the point made by the noble Lord, Lord Bassam, on 9th January, when he quoted Section 198(6)(b) of the Town and Country Planning Act 1990, and stated that, remedial notices served, or issued, under this Bill would automatically override the requirements of a tree preservation order".—[Official Report, 9/1/03; col. 1159.]

I beg to move.

Lord Evans of Temple Guiting

My Lords, through Amendment No. 15, the noble Baroness, Lady Gardner of Parkes, queries why local authorities cannot require removal of a high hedge. On the face of it, that would seem to solve the problem once and for all.

In terms of the action to be taken in relation to the hedge, the remedial notice must specify what is required to remedy the adverse effects of the hedge, or to prevent them recurring—and no more. Bearing in mind that complaints cannot be brought under the Bill against two-metre-high hedges, then it would be inconsistent for the remedy to require a hedge to be cut back or removed beyond this point.

Implicitly the Bill is saying to people that hedges can be grown to two metres without them having any adverse effect on neighbours. Reducing the height of the hedge below this limit or removing it entirely would, therefore, go beyond what was necessary to remedy the adverse effects of the hedge.

In all these circumstances, the Government believe that requiring removal of a high hedge would represent a disproportionate response to the problem. Nevertheless, it, of course, remains open to the owner of the hedge to go further than the remedial notice requires, and to remove the hedge entirely, if they want.

The noble Baroness also used this opportunity to raise concerns about the interaction between her Bill and the Town and Country Planning Act controls on trees in conservation areas. As she suggested, there is a good deal of confusion about what powers local planning authorities can exercise over trees in conservation areas. I hope that explaining how the controls should operate might be helpful both to her and to others outside this House.

Under Section 211 of the Town and Country Planning Act 1990, anyone proposing to cut down, uproot, top or lop a tree with a diameter of 75 millimetres or more in a conservation area is required to give the local planning authority six weeks' prior notice. The purpose of this requirement is to give the authority an opportunity to consider whether a tree preservation order should be made in respect of the tree.

The local planning authority cannot refuse consent to the works. Nor can it grant consent subject to conditions—such as a specific height at which the hedge should be maintained. Its only response, legally, is to make a tree preservation order and so, in effect, call in the application for more detailed consideration under the terms of the order.

As I said earlier, these controls apply to certain works and to certain trees. In the Government's view, minor trimming of a well-kept hedge as part of normal annual maintenance is unlikely to constitute topping or lopping and so should not require prior notification to the local planning authority. The legislation governing trees in conservation areas should not, therefore, prevent owners from actively managing their hedges and keeping them in trim.

Works to renovate a neglected hedge might, however, be subject to these controls. As my noble friend Lord Bassam of Brighton said in Committee, we hope that local authorities will look favourably on such notifications.

I also repeat the undertaking he gave that, when we next update the relevant regulations, we shall consider including provision to exempt from the requirement to notify the local planning authority the topping or lopping of evergreen hedges as part of normal management.

Finally, I should make clear that works to trees in conservation areas required under a remedial notice would automatically enjoy such an exemption. The controls do not apply where the cutting down, uprooting, topping or lopping of any trees is in compliance with obligations imposed by or under an Act of Parliament.

I hope that the explanations and assurances that I have given are helpful and that they are sufficient to enable the noble Baroness to withdraw her amendment.

Baroness Gardner of Parkes

My Lords, I thank the Minister for that detailed reply. I am delighted to hear that the Government will update the regulations and that possibly the exemptions will be clarified. It is important for people to know where they stand. I hope that when the guidance is issued, it—or an explanatory note—will refer to the matter. I am most grateful to the Minister for his clear explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting moved Amendment No. 16: After Clause 9, insert the following new clause—

"POWERS OF ENTRY FOR THE PURPOSES OF COMPLAINTS AND APPEALS

(1) Where, under this Act, a complaint has been made or a remedial notice has been issued, a person authorised by the relevant authority may enter the neighbouring land in order to obtain information required by the relevant authority for the purpose of determining—

1. (a) whether this Act applies to the complaint;
2. (b) whether to issue or withdraw a remedial notice;
3. (c) whether to vary a requirement of a remedial notice;
4. (d) whether a requirement of a remedial notice has been complied with.

(2) Where an appeal has been made under section 7, a person authorized—

1. (a) by the Secretary of State, or
2. (b) by a person appointed to determine appeals on his behalf,

may enter the neighbouring land in order to obtain information required by the Secretary of State, or by the person so appointed, for the purpose of determining an appeal under this Act.

(3) A person shall not enter land in the exercise of a power conferred by this section unless at least 24 hours' notice of the intended entry has been given to every occupier of the land.

(4) A person authorised under this section to enter land—

1. shall, if so required. produce evidence of his authority before entering; and
2. shall produce such evidence if required to do so at any time while he remains on the land.

(5) A person who enters land in the exercise of a power conferred by this section may—

1. (a) take with him such other persons as may be necessary;
2. (b) take with him equipment and materials needed in order to obtain the information required;
3. take samples of any trees or shrubs that appear to him to form part of a high hedge.

(6) If, in the exercise of a power conferred by this section, a person enters land which is unoccupied or from which all of the persons occupying the land are temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry as he found it.

(7) A person who intentionally obstructs a person acting in the exercise of the powers under this section is guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale."

The noble Lord said: My Lords, in moving Amendment No. 16, I wish to speak also to Amendments Nos. 17, 18 and 19.

The Bill as currently drafted gives local authority officers powers to enter the land where the hedge is situated only to carry out the works specified in a remedial notice, as part of enforcement action. Otherwise, it relies on the occupier of the land in question permitting local authority officers —or inspectors considering appeals—to enter his land in order to carry out their functions under the Bill.

Such permission might not be forthcoming in all cases and it will not always be feasible for officers to work solely from the complainant's side of the hedge. We propose, therefore, that powers to enter the land where the hedge is situated should be available for officers to use where necessary.

Amendment No. 16 would allow local authority officers to enter the land where the hedge is situated in order to obtain information that will help them decide, first, whether the complaint is one that can be considered under the legislation; secondly, whether to issue or withdraw a remedial notice, or to vary its requirements; or, finally, to determine whether a notice has been breached. At least 24 hours' notice of the intended entry must be given to all occupiers of the land. The local authority might, in particular, need to gain quick access in order to establish whether the requirements of a remedial notice had been met. Those might relate not only to the works that must be carried out to the hedge, but to the timescale within which the action must be taken. Timing of a site visit could, therefore, be critical.

Local authority officers entering land under the powers would be able to take with them other people, equipment or materials as necessary. They might, for example, need someone to help them to measure a hedge. In extreme cases, they might need to be accompanied by the police. The officers would also be able to take samples of a hedge to assist, for instance, in species identification.

Besides giving prior notice of their intentions, officers would have to meet other conditions when exercising the powers. In particular, they would, if asked, have to produce evidence of their authority to enter the land in question. Unoccupied land must be left as effectively secured as they found it. Those powers of entry would also he available to inspectors considering appeals under the legislation. Intentionally obstructing any person exercising the powers would be an offence punishable on summary conviction by a fine not exceeding level 3 on the standard scale. That is currently up to £1,000.

Amendments Nos. 17 to 19 give local authority officers similar powers when entering land in order to carry out the works specified in a remedial notice, in default of the hedge owner. The key difference is the longer notice period—at least seven days. That gives the person responsible for the hedge a last chance to cut it without the local authority having to intervene.

Entry to land is always a sensitive issue, especially when it involves access to someone's home or, as in this case, garden. We would therefore expect the powers to be used sparingly, and for local authorities and appeals inspectors to proceed by agreement wherever possible. Where the voluntary approach does not work, we believe that the powers provide a vital fallback, helping to ensure that the legislation works fairly and effectively. I beg to move.

Noon

Lord Graham of Edmonton

My Lords, I welcome what the Minister said. We are probably dealing with the trickiest part of the aftermath of the legislation, which is how to ensure that the oppressed person with the council and the law on his side gets justice.

Does the department recognise that there will need to be deep consultation with local authorities on the additional costs that may fall? It would not be good enough simply to say, "Here is an additional liability, responsibility or power. Get on with it". Many local authorities are likely to say that they are already stretched, have already cut and re-adapted, and need specialist enforcement officers. I can well imagine that in the early days there will be hundreds, if not thousands, of requests to the authority for consultation. There will be a considerable burden on the existing arboriculturists, environmentalists and tree people in an authority.

We take such matters one step at a time. We are not talking about sufficient people being in place from the due date. However, when I was involved in Enfield council, we had very good enforcement officers whose job was to investigate complaints about rubbish, burnt-out cars and people and shops that were doing things they should not do. We employed ex-police officers who were beefy and, if not overpowering, could at least stand their ground. I hope that such matters will be given consideration as they are with budgets and grants. In order to get things off the ground, we do not want local authorities at first to cry that they have not got the money or the men.

I welcome what the Minister said. The provision is a marvellous step in the right direction, but we do not want it to fall because the resources that may be needed have not been thought about. I am not talking about every penny being available from the first day, but about understanding and consideration. Besides the person suffering the hurt and the neighbours, other people to consider are the council and councillors.

Baroness Hamwee

My Lords, I would not like it to be thought simply because I did not speak that [ was not supporting the noble Lord, Lord Graham of Edmonton. I made a similar point on Second Reading, although I do not think that I argued for ex-police officers, beefy or otherwise. The issue of resources for local authorities is very real; it has been mentioned to me by the Local Government Association.

Many local planning authorities have been shedding staff over quite a long period. One can understand why. The needs of social services and education are so important that planning may have taken a back seat. I know how few enforcement officers local planning authorities now have. Tree officers are almost a disappearing species. The London Borough of Hillingdon, the boundaries of which contain Heathrow airport, has only two enforcement officers. When one thinks how much planning enforcement there must be around issues relating to Heathrow, that shows the scale of the problem. I support the point that the noble Lord made.

Baroness Gardner of Parkes

My Lords, I welcome the new clause proposed in the amendment for two reasons. The first is that it shows that the Government are very serious about putting the tools to do the job into the Bill. The other is that it is absolutely essential that the rights of entry are clarified.

I want to mention to the Minister—it has come to mind only since listening to the debate—a case brought to my attention in which people wanted to cut their own hedge. It did not require an enforcement officer. The next door neighbour did not want the hedge cut, and said, "If you in any way enter my land—even your axe or your saw—that is trespass".

I do not expect an answer on the subject today as it is rather complicated, Perhaps it can be covered in regulations. Some years ago, we passed a Bill that involved rights of access to neighbouring lands to carry out repairs to buildings, so treatment of one's own tree might come under existing laws. It may be rare for someone wanting to to work on their own hedge to be prevented from doing so by the neighbour. In that case, could they still call in the local council under the complaints procedure? Perhaps at a later stage I can have an answer. Meanwhile, I welcome the amendment.

Lord Evans of Temple Guiting

My Lords, I am grateful for noble Lords' comments on the amendment. As everyone says, right of entry is a difficult subject, one on which a great deal of sensitivity has to be shown. My noble friend Lord Graham underlined that point.

Most comments on the amendment have related to costs. The intensive consultation in 1999 included local authorities and raised the very points on cost that have been made today. Following consultation, procedures have been set to ensure that local authorities are compensated for the new burdens that will follow as a result of the Bill. I hope that that statement of fact reassures noble Lords.

I listened to the point about planning raised by the noble Baroness, Lady Hamwee. I should point out—it may or may not be helpful—that grants to local authorities have increased dramatically over the past few years. We hope that that problem will not stand in the way of the successful implementation of the Bill, when enacted.

I am not sure what the answer is to the point raised by the noble Baroness, Lady Gardner. My guess is that, if a person tends his side of a hedge and his neighbour allows the other side to grow in a rampant way, he will have the right to make the same complaint to the local authority as he would if the hedge were overgrown. However, I shall write to the noble Baroness if I am wrong on that point.

On Question, amendment agreed to.

Clause 11 [Remedial action by relevant authority etc]:

Lord Evans of Temple Guiting moved Amendment No. 17: Page 9, line 17, leave out from second "taken" to end of line 21 and insert—

1. "(a) a person authorised by the relevant authority may enter the neighbouring land and take the required action; and
2. (b) the relevant authority may recover any expenses reasonably incurred by that person in doing so from any person who is the owner or an occupier of the land."

The noble Lord said: My Lords, I have already spoken to this and the following amendments. I beg to move.

On Question, amendment agreed to.

Lord Evans of Temple Guiting moved Amendments Nos. 18 and 19: Page 9, line 25, at end insert— (3A) A person shall not enter land in the exercise of a power conferred by this section unless at least 7 days' notice of the intended entry has been given to every occupier of the land. (3B) A person authorised under this section to enter land—

1. (a) shall, if so required, produce evidence of his authority before entering; and
2. (b) shall produce such evidence if required to do so at any time while he remains on the land.

(3C) A person who enters land in the exercise of a power conferred by this section may—

1. (a) use a vehicle to enter the land;
2. (b) take with him such other persons as may be necessary;
3. (c) take with him equipment and materials needed for the purpose of taking the required action.

(3D) If, in the exercise of a power conferred by this section, a person enters land which is unoccupied or from which all of the persons occupying the land are temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry as he found it. Page 9, line 32, leave out "subsection (1)" and insert "this section

On Question, amendments agreed to.

Clause 16 [Power to amend sections 1 and 2]:

Lord Evans of Temple Guiting moved Amendment No. 20: Page 12, line 5, leave out from "regulations" to "the" in line 11 and insert "do one or both of the following—

1. (a) amend section 1 for the purpose of extending the scope of complaints relating to high hedges to which this Act applies; and
2. (b) amend"

On Question, amendment agreed to.