Holyrood Passes High Hedges Bill

MSP’s have now approved the High Hedges (Scotland) Bill, thus Scotland will follow other parts of the UK in having legislation to control the “thorny” problem of the height of hedges that cause nuisance to neighbouring proprietors.

The issue of high hedges has been an escalating problem particularly where fast growing species such as the Leyland cypress have been planted which can quickly affect the light of a neighbouring property leading to disputes.

In terms of the Bill as amended a “high hedge” is one which:-

(a)    Is formed wholly or mainly by  a row of 2 or more trees or shrubs
(b)    Rises to a height of more than 2 metres above ground level and
(c)    Forms a barrier to light

Protection will be conferred only on owners or occupiers of domestic property and the mechanism for same is public law rather than the private law generally associated with neighbourhood disputes (eg nuisance, encroachment, common interest, servitudes or real burdens).

An aggrieved person who feels that their property is affected by a high hedge must first take all reasonable steps to resolve the dispute in relation to the high hedge, presumably by negotiation.

If that fails, application is made to the local authority who intimates the application on the neighbour and allows a period of 28 days for representations.

Thereafter the local authority has to decide whether the height of the hedge adversely affects the enjoyment of the neighbouring domestic property.  

In reaching that decision the local authority must have regard to all the circumstances of the case including the effect of the hedge on the amenity of the area and whether the hedge is of cultural or historical importance.

If the local authority is persuaded by the application it then issues a high hedges notice which binds the owner of the neighbouring property.  (There is a right of appeal within 28 days to the Scottish Ministers)

If the notice is not complied with the local authority can arrange to have the work carried out and the cost recovered from the owner.
The local authority can also register a notice of liability of expenses against the title of the owner if costs are not recovered but hopefully these will be rare.

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