HL Deb 09 January 2003 vol 642 cc1148-65

3.30 p.m.

House again in Committee.

Clause 3 [Domestic property]:

Baroness Gardner of Parkes moved Amendment No. 10: Page 2, line 25, at end insert "but does not mean any building or part of a building in commercial use

The noble Baroness said: The wording of the amendment is self-explanatory: it seeks to create a different situation where a building is in commercial use.

Let me outline the reason for the amendment. I received a letter on this subject from a man who bought a house in which a hedge was planted in the garden. I do not know whether or not it was a leylandii, but a typical hedge. The man who sold the house to him has since bought the pub next door. The hedge is a lifeline to the man in the domestic property because the pub is very noisy. However, the man who now owns the pub—the former owner of the house—has said, "I intend to make your life impossible. If the Bill goes through, I shall have that hedge down. That will make your property worth nothing. I shall then be able to buy it back and join it on to the pub that I now own".

It is a rather nasty story which has made me appreciate that it could make a significant difference for a neighbour to have some kind of protection from a hedge between noisy commercial premises—-which could be a bar or any other premises which have loud entertainment—and his residence. It has a certain merit. I therefore feel that there should be a distinction in the Bill between truly residential premises and a commercial business, which might be next door. I beg to move.

Lord Monson

I have supported all the noble Baroness's amendments so far, but I have some reservations about this one—although those reservations may disappear if, after the next stage of the Bill, the word "exclusively" is inserted before the word commercial".

There are many residential buildings which are also commercial for part of the time. All farmhouses, for example, are partly residential and party commercial. Many people with IT skills now work from home rather than spending hours and hours a week commuting to their place of work. So there is a danger that if the amendment as it stands is agreed to, it might unintentionally affect buildings which are partly commercial and partly residential.

Lord Bassam of Brighton

Having listened to the case example, I am not sure whether or not the amendment helps. It is a neat point. But it is an interesting amendment and I shall deal with the issues that it gives rise to.

Clearly the noble Baroness is concerned to ensure that a complaint can be brought under the Bill only if someone's residence, and any associated garden, is adversely affected, and not some kind of outbuilding. We certainly support her wish to limit the scope of the Bill in this way. I hope that I can reassure the noble Baroness that the Bill as currently drafted achieves exactly what she wants.

Under Clause 1, a person can bring a complaint only if the reasonable enjoyment of his or her domestic property is affected. Clause 3 defines "domestic property" as a dwelling and any associated garden or yard. It defines "dwelling" as, any building or part of a building occupied, or intended to be occupied, as a separate dwelling". So that is the definitional position.

The amendment would mean that a complaint could not be brought in respect of a property in a residential area that is wholly occupied by, say, a dental practice; nor could someone complain if a hedge was affecting their garage, barn or outbuildings that might be used for storage or for purposes other than living accommodation.

A property might contain a mix of domestic and commercial uses. In these circumstances, the Bill would apply to protect the living quarters from the effects of a neighbouring high hedge. So the Bill is intelligently enough drafted to assist someone occupying mixed accommodation. On most occasions the division between domestic and commercial elements will be clear—for example, the doctor's surgery that operates out of an extension to his or her home or the flat above a shop or a pub. In such cases, a complaint could be brought under the Bill only if the doctor's home or the flat over the shop or pub were adversely affected. It would be in those kind of circumstances that the Bill could be used.

Where the boundaries between the business and living quarters are more blurred, the local authority would need to use its good sense and consider the facts of each case to determine whether the legislation should apply. We can reasonably infer from the good practice that most local authorities adopt in enforcement cases of a similar nature that they will be able to operate the law effectively in such circumstances.

I trust that that clarification helps the noble Baroness. I hope that the case example she cited is capable of reasonable resolution. It seems that an absurd and unpleasant situation has developed. We would be very interested to see the correspondence that has ensued as a consequence.

Lord Graham of Edmonton

Perhaps I may first apologise profusely for my inability to be here this morning owing to domestic circumstances. I apologise particularly to the noble Baroness, Lady Gardner of Parkes, who has been stalwart in pressing these issues.

It is appropriate that I should enter the debate on this amendment. As I understand it, the Minister said not only soothing words but intimated an understanding in the department that that which the noble Baroness seeks to achieve by her amendment is already covered either by what is meant in the Bill or is intended to be meant in the Bill.

There is no doubt that the vast majority of people are reasonable and sensible, but we have to guard against the small minority of unreasonable and sometimes nasty people. There will be other stages of the Bill and opportunities for consultation. We also have parallel opportunities in another place in a Private Member's Bill. We are in the happy position of trawling for instances and happenstance so that we can have the benefit of a longer view than we might otherwise take.

I support the purport of what the noble Baroness, Lady Gardner of Parkes, seeks. I believe that tier concerns are well founded, but I am satisfied that the Minister has been helpful.

Baroness Gardner of Parkes

Yes, I agree that the Minister has been most helpful. I am delighted to see the noble Lord, Lord Graham, in his place. He has long taken a great interest in the Bill. I quite understood his absence this morning. It was impossible for him to be here as he had to take a member of his family to hospital—which superseded any Bill. I welcome the noble Lord's support in this afternoon's debate.

The Minister's answer was most satisfactory. It is extremely valuable to have that statement on record as Hansard now carries a weight in its own right and can be used in legal disputes. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Procedure for dealing with complaints]:

Baroness Gardner of Parkes moved Amendment No. 11: Page 2, line 38, after "is" insert "malicious,

The noble Baroness said: In a way, the strange situation to which I referred in moving the previous amendment could almost be covered by this one; namely, that there is definitely some degree of malicious intent on the part of the person involved. I have received a considerable number of letters about malicious intent.

I have in front of me a typical letter. A neighbour with 26 acres of land lawfully converted her only barn into a house. She then decided that she wanted to erect another barn in the hope of gaining residential planning permission, but permission was refused. Because of the refusal, she deliberately planted a leylandii hedge along the boundary of each adjoining property of the neighbours who had opposed the conversion. This was specifically done as a pay-back for objections to the planning permission. Without doubt there was malicious intent.

I referred earlier to the case of the man who planted alder trees. The case is similar: he had applied for planning permission. I do not think that his intention was deliberately to upset the neighbours, but he planted a hedge of alders where he had hoped to obtain planning permission for the entrance to his barn. He assured the neighbours that he would not allow the trees to grow more than five feet tall. But when he did not obtain planning permission for residential occupation, he ignored the trees. I said this morning that they had grown to 25 feet; I now see that his letter states that they are 35 feet high and causing great problems. The trees merely adjoin farmland and are of no benefit to the farmer, but they are a terrible disbenefit to the owner of the residential property.

In the first case, an interesting point was made in the letter. I quote: Worse still I have a six feet high beautiful hawthorn hedge bordering my house and her field and we are about a hundred metres between each other so not very close, but she still planted this Leylandii hedge only £ a meter from this 200 year old hawthorn hedge. Her Leylandii hedge will eventually kill off this beautiful and irreplaceable hedge".

So there would certainly seem to be no friendly intent. I think that we should all be concerned at the loss of any hedgerows, and the 200 year-old hawthorn must surely be a hedgerow. It is a great pity.

The point is important. In reply to my remarks at Second Reading, the Minister considered that we should not use the term "malicious" in the appeals section. But I believe it appropriate to use the term in regard to the council determination. The local council would rapidly be able to assess whether a complaint was genuine or whether someone was merely out to be spiteful and difficult. For that reason, the amendment has significance. I beg to move.

Lord Graham of Edmonton

I support the amendment. It may well appear to be the result of an oversight, but the noble Baroness reminds us that it arises out of remarks at Second Reading. In my experience, from correspondence and from speaking to many such people—who on one occasion held a lobby in this House—we may raise the question of whether an instance is malicious, frivolous or vexatious, but the sad fact is that many of the cases brought to our attention fall into the "malicious" category rather than into the other two categories.

I am satisfied that where local authority arboriculturists or environmental health officers finally face up to the neighbour who may be acting in an unfriendly manner, cases that are "vexatious" or "frivolous" can be resolved fairly quickly. But the power to deal with what is seen as "malicious"—that is, having a deliberate intent to harm—would be better placed on the face of the Bill.

3.45 p.m.

Lord Bassam of Brighton

Through these amendments the noble Baroness seeks to deal with complaints that have an element of malevolence. We fully understand the reasons for bringing forward the amendments. Far-fetched though it may seem, I am sure that there have been horrific cases where people have planted hedges with the sole intention of inflicting misery on others. The noble Baroness gave a very good example.

I have in front of me an example from the programme "Neighbours from Hell". Apparently, the couple concerned and other local residents objected to a planning application by their neighbour, in consequence of which a hedge was planted only a few feet away from the windows on all three sides of their bungalow. The pattern of land ownership was somewhat unusual, but the case illustrates the lengths to which some people will go to be unpleasant to those with whom they share common boundaries. The noble Baroness raised this issue at Second Reading and gave very good examples. While these extremes are undoubtedly rare, they are very real for some people and they can cause great distress.

The vast majority of such disputes arise through nothing more sinister than ignorance of just how fast and high a hedge can grow. We wonder generally how far the amendments will be necessary or required. We also wonder whether they are workable. We should, after all, be asking local authorities to make a judgment about what stimulates people, what their actual intentions are. Given the long history attached to some hedge disputes—they can continue for many years—it will be very difficult in some circumstances to isolate the facts, particularly in the case of a hedge that may have been planted some years earlier, and to determine the intent behind its planting. That area could be extremely difficult. In that instance one would have to deal with a possible change of ownership and decide to whose intent the judgment should apply.

A further problem is that it is unlikely that most people—perhaps only in the rare cases that the noble Baroness has managed to cite—will admit to their motives, their original sin, as it were. In most cases people are hardly likely to own up to planting a hedge in order to take revenge or to force a neighbour out because of objection to a planning application. They would be more likely to say that they had planted the hedge to protect their privacy and perhaps prevent their neighbour's activities from intruding on them.

In such circumstances it would be very hard for the local authority to prove intent. Reflecting on my own local government experience where, as the local ward member, I was frequently called upon to mediate, it was always difficult to get to the bottom of disputes between neighbours, particularly over boundary matters. So, as well as the difficulties in proving malevolent intent, I am not sure that personal matters have a place in this legislation. I argued earlier for simplicity. It is certainly our belief that simplicity will make this legislation more effective.

It is intended that the Bill should take the heat out of hedge disputes by local authorities acting as independent third parties in examining issues as objectively and dispassionately as they can. Our view is that local authorities should be left to weigh the facts of each case in a fair and impartial manner, unencumbered by questions of the different and varying motivations of the parties involved.

For those reasons, although we understand the spirit and intent behind the amendment, we do not believe that it would he helpful at this stage to include a specific provision on the face of the Bill to deal with alleged vindictiveness.

Baroness Gardner of Parkes

I thank the Minister for his comment. He says that the amendment introduces a judgmental element, and I agree. I have considerable correspondence from people who think that the introduction of that element would be an advantage. Local authorities are used to dealing with such situations, so it is not significant.

The point about the date of the planting of the hedge, which is dealt with in my amendment, Amendment No. 14, to which I also speak now, is a two-edged sword. Some write that they do not want a hedge, but if it has been there for more than a certain amount of time, it is "set in stone" and nothing can be done. Others say that the date is significant if the hedge was planted immediately after a planning refusal, for example. That was my initial thought when tabling the amendment. The Hedgeline group says in its note that real malicious intent from the outset is rarer. It is usually a by-product of another quarrel; for example, the victim has opposed a planning application at an earlier time. So, apparently, planning applications are one of the big reasons why people take vindictive action. There is a place for a provision relating to malicious intent.

I wish to correct my statement about the Minister's letter to me. I have now checked the exact wording. He said that he thought "frivolous and vexatious" should not be added to the appeal procedure, but that we had not discussed the word "malicious" at that time. I am prepared to accept that. The word "malicious" should not be applied to appeal, but I still strongly believe that it should apply to the original council reasoning. I hope that between now and Report stage I can convince the Minister that there is some merit in that.

Lord Graham of Edmonton

Before the noble Baroness sits down, the Minister said that it would not be helpful to insert the word "malicious". We are trying to read the significance of this because, ultimately, we not only want the Minister to oppose, we want him tacitly to support, legislation from here. When he says that it would not be helpful, is that a coded way of saying that he would prefer that the word were not there? Although the case for it has been made, a Bill without that word is better than no Bill at all.

Baroness Gardner of Parkes

I shall have to ask the Minister to comment. If it is a coded message, it is not one that I understand.

Lord Bassam of Brighton

I try not to speak in code. We take the view that it would not be helpful and that in some circumstances it could be counterproductive. It would probably put local authorities in a difficult position when reaching a conclusion because it would have to take into account the intent behind planning the hedge at a particular time and place. As I said, simplicity is the order of the hour in this Bill. We would prefer to have clear and simple legislation that did not force local authorities to judge the intention behind an action.

Baroness Gardner of Parkes

I thank the Minister for that remark. I understand exactly the point by the noble Lord, Lord Graham, that we would rather have a Bill than no Bill, provided that it is not so damaging to the interests of those adversely affected by hedges as to be worthless. I believe that it is the Government's honest intention to enact a worthwhile Bill. There is time for discussion on the matter between now and Report stage. Perhaps I can convince the Government that the word "malicious" is good; perhaps they can convince me that it is not desirable and would be counterproductive. We will continue from there. Meanwhile, I beg leave to withdraw the amendment.

Baroness Gardner of Parkes moved Amendment No. 12: Page 2, line 38, at end insert— () that the complainant has not notified the person referred to in section 1(1)(b) against whom the complaint is being made,

The noble Baroness said: I tabled this amendment at the last moment because of letters I have received. We discussed at Second Reading the desire for mediation. It is desirable, and, if we can see that agreement is reached between neighbours, so much the better.

I received a letter from an elderly couple whose neighbour, when they approached him, told them that he intended to be a very bad neighbour. He said that he had no intention of doing anything whatever to help them and that if they came near him again—he did not say, "I'll knock your head off", but that was the tone.

The elderly couple felt intimidated. They said that at over 80 years old, they felt unable to face such a situation again.

It is important to note the law as highlighted in Delaware Mansions Ltd v Westminster City Council, where a judgment was made against the council because it had failed to respond to the notice served to request that the growth of the tree be controlled. I outlined at Second Reading the eventual £1 million cost incurred by contrast to the original cost of £14,000. The House of Lords ruled in that case that it was essential that one notified the neighbour of the problem.

So, it is no good if the elderly couple do not even tell their neighbour. They must have some official way of giving notification. But where people feel threatened, they should not have to attempt to meet or mediate with their neighbour unless he indicates a willingness to do so. For that reason, I considered that anyone could comply with an obligation to notify the neighbour, because it could be done by recorded delivery, registered post or in some way that did not endanger the person notifying, yet it would satisfy the council that the person being complained against was at least aware of the problem. That is the basis for Amendment No. 12. I beg to move.

Baroness Hamwee

My Amendment No. 13 is in the same group. It would give the authority a clear right to postpone a decision in order to allow for mediation. The words used are, capable of resolution by other means"; in other words, other than through its procedures. That may be implicit, but in case it is not I wish it to be understood that there is a considerable role for mediation. Local authorities will not necessarily relish having to carry out that role. They, rightly, say that they are not resourced to undertake such measures; however, I dare say that planning departments have much experience of it. I hope that the noble Baroness can agree the principle, if not the method, of dealing with it. I wish to ensure that it is understood that mediation can be attempted before choosing the nuclear option.

Lord Graham of Edmonton

This is an interesting point because from what I have read and seen I am well aware that although people may not have been terrorised, they are nevertheless frightened. They may be timid and frail, and do not like to draw neighbours' attention to a detriment to their property. However, if we are to engage local authorities to spend money and time in dealing with the problem, they ought to realise—and ought to be able to realise—that the simple procedure of asking for the hurt to be remedied by the offending neighbour has at least been attempted.

I repeat my own illustration. I bought my house which had next to it a hedge of about 20 to 25 feet in height. I spoke to my neighbour and asked what had happened. He said that the previous person went to see the owner and came away with a flea in his ear. The matter had been left. When this debate arose two or three years ago, I said I would do exactly what the amendment of the noble Baroness, Lady Gardner of Parkes, suggests. I went to see my neighbour and found that he was a new owner and that he was unaware that there was any feeling on my part that the height of the hedge should be reduced. As soon as I raised the matter with him he said that he was very sorry and that he did not realise the problem. He said that he bought the house and the hedge, but now that the issue had been drawn to his attention he would reduce the height of the hedge to an acceptable and satisfactory height at his own expense, which he did.

Therefore, before involving the panoply of the law, I believe that the onus should be on the complainant to prove that he has taken some steps to try to resolve the matter. He should not simply say that he had been told by somebody that it is no good visiting the neighbour. The amendments are well worth the Minister's consideration and are acceptable because they improve the true intent of the Bill.

4 p.m.

Lord Bassam of Brighton

We have great sympathy with the noble Baroness's point that there should be a requirement for information to be supplied to the occupier of the land where the hedge is growing before the local authority considers a complaint. In our view those seeking to make a complaint should have taken all reasonable steps to resolve the dispute by negotiation. Under those circumstances I believe that the local authority would probably be within its rights to reject the complaint if such reasonable steps had not been taken. There should, first, have been some dialogue with the hedge owner which should have ended with the complainant saying that he was not satisfied and that he intended to use the statutory complaints procedure.

As a matter of courtesy, I also agree that the complainant should inform the hedge owner when lodging the complaint with the local authority, perhaps by sending him a copy of the complaint. At any event in these circumstances it is the Government's intention to publish a leaflet for members of the public to understand how the complaints system will work when established under the legislation. We would want to include advice within that leaflet about the notification process as regards the owners of hedges. It seems to us that putting that information into an explanatory leaflet is better for the purpose of placing a message rather than to include it on the face of the Bill. We believe that that would be a more effective way of dealing with the matter.

That brings me to the point raised by the noble Baroness, Lady Hamwee, that the local authority should have the facility to reject a complaint if a complainant has not, at the first instance, put the person complained about on notice. We believe that it is best that mediation and dispute resolution is tried first. It would be our expectation that that would be the normal run of events. It is our intention to publish information in the form of a leaflet initially rather than having it set out on the face of the Bill, which we do not believe is necessary. We shall be able to consult the local authorities on the content and design, which deals with the point more effectively than placing it within the body of the legislation itself.

Baroness Hamwee

I believe that we are all agreed on the best way of going about these matters. My concern was the rather more technical one of being assured that the local authority had the power to postpone taking a decision; in other words, not to be upholding or rejecting the complaint, but postponing it to allow mediation. Mine is quite a narrow point.

Lord Bassam of Brighton

The noble Baroness is right in that it is a narrower point. Under Clause 4(2)(a) local authorities already have powers not to proceed with complaints if they consider that the complainant has failed to take all reasonable steps to resolve the dispute amicably. So we believe that the provision is already there. That will enable the authority to refer the parties to mediation, which we believe works very well. Statistics tell me that there is a success rate of 85 per cent in cases where mediation is invoked. Our expectation is that that would happen first. In any event, Clause 4(2)(a) provides for that. We believe that that point is satisfied and has a bearing on the issue raised by the noble Baroness, Lady Gardner of Parkes.

Baroness Gardner of Parkes

I have listened with quite a degree of interest. I understand the technical basis of the point made by the noble Baroness, Lady Hamwee. I am very much in favour of mediation. I have no problem with the principle of mediation or of a council deferring a decision for the purpose of mediation.

I have tabled my amendment for a narrow reason: that in situations where mediation is absolutely impossible there should be at least a minimum requirement on the party concerned to notify the person complained against. I do not believe that that is at all unreasonable. The council would find itself in difficulty it' it approached the neighbour and said that it had received a complaint from a neighbour, and the neighbour replied to the effect that no one had told him that there had been a complaint about the hedge. Yet the reason for not telling might have been that the complainant was too frightened to approach the neighbour who had been unfriendly about other issues.

I had a very unfortunate case in the West Country. A hedge was causing great damage. The woman concerned believed that it caused her husband to die from a heart attack, but I do not know whether or not that is true. He died after a great period of worry about the hedge. When she read the Delaware Mansions case and that one had to notify the neighbour if one is unhappy in order to take legal action under the present law, she notified the neighbour. She received a letter from his solicitor to say that if she attempted to contact his client in any way whatever he would take further legal action against her for harassment. All this occurred to a woman aged over 80 years.

I told her that she should take up the matter with the Law Society because I considered it scandalous for any solicitor to send a letter of that intimidatory nature. She took it up with the society but got nowhere. She was told that the solicitor was entitled to defend his client. However, the position became worse because the offending person said that he would sue the complainant for damaging the resale value of his property. It was up for sale and he had to disclose that he had a letter of complaint from a neighbour which therefore reduced the resale value.

Cases exist which are quite worrying and frightening to people. So there should be the ultimate fallback for a complainant of not having to prove that he has taken all reasonable steps, because what would those be when he has approached a neighbour and been told that he is harassing the neighbour? That puts the person attempting to mediate in an impossible position. If there is the fallback position that at the very least the complainant must have notified the neighbour of the complaint, then, as in the judgment of the court in the case to which I have referred, the neighbour could not plead that he was unaware of the problem. That is why I wanted to include that point.

The Minister should look at this and consider whether or not it would be a desirable addition to the Bill. I am sure that there are many more cases than the ones about which I have heard. In the mean time, I should like to reconsider and further discuss the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 13 and 14 not moved.]

Clause 4 agreed to.

Clause 5 [Remedial notices]:

[Amendment No. 15 not moved.]

Baroness Gardner of Parkes moved Amendment No. 16: Page 4, line 41, at end insert— (9) For the avoidance of doubt, a remedial order under this Act shall override any tree preservation order or any preservation order imposed under the Town and Country Planning Act 1990 (c. 8).

The noble Baroness said: The main reason for bringing forward this amendment was the statement made by the noble Lord, Lord Walker of Doncaster, in the Second Reading debate, in the gap. The noble Lord mentioned the fact that it can be extremely difficult for people living in conservation areas to maintain their own hedges. People living in a conservation area have to notify the council of their intention to cut a hedge. Thereafter, they have to allow a certain amount of time to elapse before they can proceed to cut their own hedge. The noble Lord is keen to have some provision that will entitle people living in conservation areas to maintain and trim their own hedges. It is quite customary in this country for people to trim, tidy, and maintain their hedges. Therefore, it is not a good idea to impose difficulties upon them in so doing.

Further, if the council makes an enforcement order that a hedge should be cut to, say., three or four metres—or whatever measurement is determined—the decision has to be made as to which process takes precedence: the preservation order that might apply to the area, or the conservation order that is applicable to a larger area. The amendment would make clear that this hedge Bill would override any of the other orders relating to the conservation of trees, or hedges. I beg to move.

Lord Bassam of Brighton

We may well be able to offer some reassurance to the noble Baroness on the points that she has raised. Section 198(6)(b) of the Town and Country Planning Act 1990 states that a tree preservation order does not apply, to the cutting down, uprooting, topping or lopping of trees in compliance with any obligations imposed by or under an Act of Parliament". That rather broad statement means that remedial notices served, or issued, under this Bill would automatically override the requirements of a tree preservation order. Consequently, there is no need to clarify that point on the face of the Bill.

A similar exemption applies where a remedial notice is issued in respect of trees in a conservation area. The relevant provision can be found in Regulation 10 of the Town and Country Planning (Trees) Regulations 1999. This does not mean that a local amenity is unimportant; indeed, far from it. Clause 4(4) of the Bill shows quite clearly that the local authority is required to "take into consideration" the extent to which a hedge contributes towards the amenity of a neighbourhood. The existence of a tree preservation order, or of a conservation area designation, will, therefore, he a material fact to a decision as to whether or not to issue a remediation notice.

Of itself, that provision does not address the separate point raised on Second Reading by the noble Lord, Lord Walker, about trees in conservation areas. I believe that the noble Lord's concern was that the requirement to notify the local planning authority before carrying out works to certain trees in conservation areas could serve to discourage owners from managing their own hedges. The noble Baroness pointed out that there was a degree of conflict between the aims of her Bill and the universal controls over trees in conservation areas in planning legislation.

However, we believe that this problem is capable of resolution. Under the tree regulations that I mentioned earlier, it is open to us to specify exemptions in the requirement to notify the planning authority of the intention to carry out works to trees in a conservation area. Therefore, it would be feasible to exempt topping or lopping of evergreen hedges as part of normal management. In our view, the issue can be best addressed in that way. The department is currently considering updating the tree regulations and implementing long-promised improvements to the tree protection regime, so we have the opportunity to introduce such an exemption. We shall consider suitable provisions in the revised regulations.

In the meantime, it is my hope—-and, I am sure, that of your Lordships—that local authorities will look favourably upon applications to prune hedges. Indeed, they would be imprudent if they did not do so. In our view, tree preservation legislation should not get in the way of effective good management practice. I trust that my remarks will be of some assistance to the noble Baroness.

4.15 p.m.

Baroness Gardner of Parkes

I thank the Minister for his response. It would be most helpful if an exemption for people who wish to control their own hedges could be introduced. I am sure that all these applications for permission to prune one's own hedges in conservation areas represent a burden to the planning departments of local authorities. The Minister's reply is most encouraging. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [Variation or withdrawal of remedial notices]:

Baroness Hamwee moved Amendment No. 17: Page 5, line 45, at end insert— () The Secretary of State shall after consultation with representatives of local government issue guidance to local authorities with regard to the exercise of their powers and functions pursuant to this Act.

The noble Baroness said: I noted this morning that the noble Baroness, Lady Gardner, referred to the need for a degree of flexibility in the application of the Bill. I accept that necessity, but I also believe that it requires some objectivity. We certainly need the assurance that local authorities will act neutrally when administering the provisions of the Bill. At the Second Reading stage the Local Government Association told me that it wanted to avoid long-winded, philosophical discussions on each and every dispute—one person's nuisance is often another person's aesthetic choice. I well understand that concern.

It is also proper that those who are involved in a dispute should have the assurance that some common standard is being applied between different local authorities. Of course, circumstances will be different: what applies in the suburbs may not be right for the open countryside. However, while accepting that consideration, it should not be open to local authorities to take inconsistent decisions. Indeed, one would rapidly find oneself in the courts. I believe that local authorities would welcome some assistance in the broad criteria to be applied.

I recognise that I probably should have made the amendment state that the Secretary of State "may issue guidance" rather using the word "shall", but I trust that that will not be too much of a stumbling block. I suggest, therefore, that the Secretary of State should consult representatives of local government, and issue guidance to assist them. I beg to move.

Lord Graham of Edmonton

This is a very good amendment, one that is worthy of support and inclusion in the legislation. As a result of my experience, that of the noble Baroness, Lady Gardner of Parkes, and, indeed, of everyone else who has spoken in this Committee stage, we are all well aware that there needs to be some measure of consistency in interpreting what the Bill intends to achieve. We also need to try to sweep up the issues at the next stage. I take the view that the action on this matter has recently been ratcheted up significantly as regards both this Bill and the one in the House of Commons.

After the decisions taken in this House in recognition of the fact that there is a need for some legislation in this respect—and, I have to say, the enormous work sympathetically carried out within the department—it would be a pity if we were to fall at the last hurdle in ensuring that people understand exactly what is involved in this issue. This amendment deals particularly with local authorities, because they will have to carry out these functions. Therefore, when the Secretary of State, the Minister, and his colleagues consider the next step to be taken, they ought to bear in mind that there are bodies such as Hedgeline that have a vested interest in the kind of provisions that will be considered.

I must confess that while sitting here I have opened my post, which I would normally have opened first thing but I was delayed. Inside was the latest Hedgeline bulletin. It is headed, We have another chance for legislation Hedge Law could be passed this time around". On the back there is a contact sheet. It is a voluntary, unaided, unpaid organisation, but it has a network of people all over the country who must have appeared out of the woodwork—but I must be careful; that is another branch of what I want to say.

There are lots of little people who are unprotected and unarticulate, looking for someone to be their champion. In the first instance that is the Government through, I hope, aiding and abetting the passing of the law, but ultimately it is the local authority. That is how it should be. When the Minister decides to consider the matter, even on another Bill, he should take care that when the guidance is produced it goes through the hands not only of local authorities but also of those who seek to represent the people at the sharp end—that is not us.

I mentioned Hedgeline. The department may have the addresses of other such organisations. It is better to take the opportunity to get the provisions right in the first instance than to find what local authorities think sensible becoming the subject of dispute among other people.

Baroness Gardner of Parkes

I support the principle behind the amendment. It is good to have guidelines and the Minister has already indicated that there will be guidelines. I support the point of the noble Lord, Lord Graham, that the consultation should be wider. Hedgeline has great expertise in the subject, built up over many years, so it would be one organisation to consult, but it may be wider than that. The guidance should be issued not only to local authorities but also to the general public so that the various functions suggested by the noble Baroness can be incorporated and local authorities know their rights.

There is a need for general guidance on the issue, so although I agree with its principle I hope that the noble Baroness will withdraw the amendment and the Minister will tell us that he plans guidance in any case.

Lord Bassam of Brighton

I can offer the assurance that all Members of the Committee seek. Guidance will be produced to local authorities under the legislation. I give a cast-iron assurance that there will be prior consultation, not only with local government but also with a range of interested organisations including, of course, Hedgeline. The guidance will have to take into account the determination of appeals, guidance to occupiers as to the way in which they should make their complaints on such issues as giving prior notification. All those matters will need to be covered and we shall need to consult extensively to achieve that.

However, we believe it can be achieved without placing the guidance on a statutory footing. There will be consultation and effective guidance to all, which will be widely available to the public.

Baroness Hamwee

I was seeking such an assurance through this process. It cannot get better than a cast-iron assurance. I thank the Minister for that. He and I and the noble Lord, Lord Graham, used the term "guidance", while the noble Baroness, Lady Gardner, used the term "guidelines". I think we are talking about guidance, which is something more—the Minister nods. I wanted to be clear as guidance has a firmer status. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clauses 7 to 14 agreed to.

Clause 15 [Interpretation]:

Baroness Hamwee moved Amendment No, 18: Page 11, line 38, after "interest" insert "for a term of not less than five years

The noble Baroness said: This is possibly the worst drawn amendment I have ever tabled. I realised that when drafting it, but it is a probing amendment. The Bill refers to an occupier being someone entitled to possession of land by virtue of an estate or interest in it. My amendment, which seeks to stimulate discussion, specifies: for a term of not less than five years".

At a number of points the owner or occupier is the subject or perhaps object of a provision, either as the complainant or the offending neighbour. Issues of liability are raised so that the owner or occupier may be required to take action. It raises the grounds on which an appeal may be made. Is an occupier in a different position from an owner and under what circumstances would it be reasonable for an occupier to have to undertake the cost of taking the remedial action?

The Bill seems to allow picking and choosing between owners and occupiers. I am unclear—although guidance might assist—as to the basis for deciding whether the complaint should be directed, for instance, at the owner of the land or at someone who is occupying it on a relatively short-term basis. I beg to move.

Lord Bassam of Brighton

The noble Baroness admitted that this is perhaps not her best ever drawn amendment. I do not like to agree with her, but on this occasion I had better do so. It would alter the definition of an occupier if it were to require their entitlement to possess the land by virtue of an estate or interest in it for a term of not less than five years.

The term "occupier" crops up throughout the legislation and so the amendment would have far-reaching consequences. It would mean that people on shorter-term tenancies would not be able to bring a complaint under the legislation, but would have to persuade the owner to submit it instead. If the owner refused to go to that trouble, up to five years is a long time to endure the misery of a high hedge, as I am sure Hedgeline members would testify. It could of course be for longer if someone repeatedly renewed their tenancy.

Were the amendment applied, the owner would be responsible for complying with any remedial notice and could be prosecuted for failure to do so, even though the terms of the tenancy agreement might specify that responsibility for maintaining the hedge rests with the tenant. We could argue that that is hardly fair or equitable.

If the property changed hands while a local authority was considering the complaint, it would be reasonable for it to ask the new occupiers of the domestic property from which the complaint originated whether they wished to continue and proceed with the matter. There are therefore administrative solutions to any problems that might be thrown up where the parties to the complaint change over time. Local authorities have powers in Clause 4 not to proceed with a complaint they consider frivolous or vexatious. That might cover, for instance, a situation where someone makes a complaint on spurious grounds just before their tenancy is due to expire.

I am not sure that that offers any reassurance to the noble Baroness, Lady Hamwee. However, I have tried to explore some of the difficulties with the amendment that I think would unnecessarily complicate the simplicity of the Bill's drafting—which, as I have said several times, is a distinct virtue.

4.30 p.m.

Baroness Gardner of Parkes

The amendment is interesting and has made me think about the distinction between owner and occupier. I also understand the Minister's point about one's legal obligations. However, I ask him to consider before the next stage yet another scenario—when the owner or person responsible for a given piece of land cannot be found. Rutland Gardens, for example, in central London, has a central garden which was purchased some years ago by an unknown person on the basis that he could build houses on it. However, it may have been sold to him by a very smart con man because, as everyone knows, under the Open Spaces Act, there is no way in which anyone could obtain the right to build on that site. The garden has therefore been totally neglected for many years, and Westminster Council is unable to get anyone to take action on it.

There is another patch near the Royal Geographical Society. Although the owner's identity is known, there is great dispute about who is responsible for trimming the few bits of greenery on the land, which is much smaller than the patch in Rutland Gardens. There are many such instances.

I know from experience of many cases in which people's electricity supply was cut off because the landlord could not be found. That situation has changed, but many cases still revolve around the need to identify and locate individuals. If someone has a hedge and the adjoining owner cannot be found, how will the Bill work for him? Will the council cut down the trees, or will people have the right to cut them down at their own expense? What will happen if they cannot find anyone on whom to serve notice? It is an interesting point. I shall read this debate. Perhaps the Minister will think about what I said and we can discuss it again at a later stage.

Baroness Hamwee

I am quite happy to reconfirm that I know how bad my amendment is, but I do not think that that is the whole issue. Clause 1(1)(b), for example, states that a complaint can be made if the complainant, alleges that his reasonable enjoyment of that property is being affected by an … obstruction … caused by a high hedge situated on land owned or occupied by another person". Is it fair to pick and choose between the owner and occupier? The person may be both the owner and the occupier.

Lord Bassam of Brighton

I am not sure why the exact wording was chosen, but the wording seems to provide that flexibility. Surely the point is to serve notice on the most relevant person; either the owner or the occupier may be the most relevant person on whom to serve any number of notices. The relevant person is the one who is causing the nuisance, which takes us back to points and issues that we covered earlier. The issue is the relevancy of those involved and we should focus on that. I think that that is why the alternative wording has been provided. I may be wrong about that, but it seems a sensible way to proceed.

Baroness Hamwee

I think that that is right, but I am not sure that the Bill allows that judgment to be made. The provision on complaints—I shall reread it—does not seem to provide that scope.

Lord Bassam of Brighton

I, too, will have another look at the issue. I think that we require that flexibility, and we want the provisions to be workable. We need to be certain about it.

Baroness Hamwee

We also require fairness. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Clauses 16 to 20 agreed to.

House resumed: Bill reported without amendment.