Chamber
Meeting of the Parliament 28 March 2013
28 Mar 2013 · S4 · Meeting of the Parliament
Item of business
High Hedges (Scotland) Bill: Stage 3
I am delighted to open the debate, Presiding Officer.
I am very pleased that Parliament has before it the High Hedges (Scotland) Bill, and I am delighted that we have this opportunity to put this new law in place to benefit people in Scotland.
I am glad that there has been widespread support across the chamber for the bill. That much was apparent from early in the process, even before I introduced the bill, when my final proposal obtained cross-party support. I am grateful for the on-going interest, support and encouragement that I have received from fellow members—as well as for the casework, which has helped to shape the bill. The legislation will meet a clear need and desire expressed by people in Scotland in their engagement with Parliament on the issue.
I have found that taking forward the legislation has been very rewarding, but I am conscious that this is not the first time that Parliament has considered high hedges and that legislation on the matter has a long history. Indeed, proposals for member’s bills on the issue were launched on three previous occasions, without those ever proceeding to be considered as bills. I am therefore pleased to be completing a piece of unfinished business.
The then Scottish Executive consulted on the issue in 2000, although the number of responses was relatively small in comparison with the number received in response to a similar consultation in England and Wales the previous year.
The more recent consultation undertaken by the Scottish Government in 2009 attracted in excess of 600 responses, of which 93 per cent were from private individuals, the majority of whom described themselves as being “in dispute”. Not surprisingly, a significant majority of respondents—77 per cent—favoured a legal solution to the problem, and more than two thirds favoured replication of the English and Welsh legislation. I am grateful to Fergus Ewing, who had already done a substantial amount of work on the issue when he had ministerial responsibility for the area, not least that of leading the work behind the 2009 consultation. That gave me a strong basis on which to build my own proposals.
Both I and the officials working with me have met many people and organisations in the course of preparing for the bill and taking it forward, including the Scottish tree officers group, the Convention of Scottish Local Authorities, the Scottish Court Service, the Scottish Mediation Network and the Woodland Trust. I also visited South Tyneside Council and Hartlepool Borough Council for a first-hand account of how similar legislation works in England, and met with the campaigning organisation Scothedge a number of times. The officials supporting me have met a further range of organisations, including the Scottish Wildlife Trust, RSPB Scotland, Scottish Natural Heritage and the directorate for planning and environmental appeals.
We heard earlier that the Scottish Wildlife Trust and RSPB Scotland have recently written to MSPs to express their concerns about the inclusion of deciduous shrubs and trees in the bill, and I have acknowledged their concerns about the potential impact on wildlife and biodiversity. As I said earlier, I am satisfied that the guidance to be provided by the Government on the bill can address those issues and ensure that those potentially negative impacts do not arise in practice. I am therefore grateful that the minister has agreed that both the Scottish Wildlife Trust and the RSPB will be invited to participate in the drafting of guidance on the bill. I am happy, too, that Scottish Natural Heritage has already indicated a willingness to participate in developing the guidance, as it, too, has invaluable expertise to share. I am also grateful to the minister for ensuring that local authorities have been consulted on the potential impact of widening the bill’s definition of a high hedge. I know that many of the issues raised in response to that were considered at the Government’s meeting with local authorities on Monday to discuss implementation.
One of those issues is the impact of the bill on woodland or forests, which Stewart Stevenson raised at stage 1. The short answer is that this is a bill about high hedges, so it is not designed to impact on woodland and forests, which as a general rule are not planted as hedges. I confirm that the Forestry Commission has been consulted during the bill’s progress, and I am sure that the issue can be clarified in guidance to practitioners.
I now turn to the bill itself. It has become clear to me—I am sure that many members across the chamber will recognise this—that there are a number of apparently intractable disputes across Scotland that revolve around the presence of a high hedge, with no easy resolution in sight and no apparent willingness on the part of neighbours to resolve those disputes amicably. In my view, the bill is the best way in which to achieve a practical and sustainable resolution to a long-standing problem. I will now take a short time to explain the bill.
The bill enables those who consider themselves to be adversely affected by the height of a high hedge to apply to their local authority for a high hedge notice. It gives those people an opportunity to put their arguments to an independent body and to have their voices heard, which is an opportunity that they do not have at present. It is important to note that an application must specify all the steps that have been taken to resolve the dispute prior to the application, and local authorities will be able to dismiss applications if that has not been done. The local authority will decide whether the hedge is adversely affecting the reasonable enjoyment of the applicant’s property. In doing so, it will take account of the views of the owner of the hedge and all relevant factors, including the amenity of the wider area.
The bill’s definition of a high hedge has been the subject of much discussion. The bill as introduced mirrors the definition that is used elsewhere. It defines a high hedge as a hedge—that word is important in making it clear that the bill will not usually impact on forests or woodland—that
“is formed wholly or mainly by a row of 2 or more evergreen or semi-evergreen trees or shrubs”,
that
“rises to a height of more than 2 metres”
and that
“forms a barrier to light.”
The amendment that the Parliament has agreed to today widens the definition to include deciduous trees and shrubs by removing the restriction.
The bill gives local authorities powers to make and enforce decisions about high hedges. They will be able to assess situations and make independent decisions on whether high hedges are affecting the reasonable enjoyment of properties. It is fair to point out, however, that the local authority’s decision will seek to strike a balance between the competing rights of neighbours, and the representations of both parties will be taken into account by the local authority. It must make a decision having taken all the circumstances into account, including the amenity of the wider neighbourhood, and if it finds that a high hedge is having an adverse effect, it must advise whether any action should be taken.
Where the local authority decides that action should be taken, it will issue a high hedge notice. The notice will set out what initial action is required to be taken to address the adverse effect and what preventative action is required to prevent the adverse effect from recurring. The high hedge notice will also set out the timeframe within which action should be taken.
The bill provides a right of appeal to the Scottish ministers against decisions by local authorities. In practice, appeals will be heard by the directorate for planning and environmental appeals, and it will issue full details of how that process will work in practice in due course.
If an owner of a high hedge does not take the action that is specified in the high hedge notice, the local authority will have the power to enter the property and undertake the work itself. It will then be able to recover the costs of doing so from the hedge owner. In summary, the bill provides a mechanism for resolution.
Recourse to the local authority is, however, to be used as a last resort. Primary responsibility for resolving disputes over high hedges should lie with the individuals concerned in the first instance. As I said, the bill requires that applicants for a high hedge notice must have taken all reasonable steps to resolve the matter before they make an application to the local authority.
The success of that approach is borne out by experience elsewhere. In England and Wales, what started off as a large number of inquiries became a number of formal applications, which quickly became a small number of formal complaints and almost no instances of enforcement action. It is important to emphasise that the application to the local authority should be the last resort, not the first.
The bill also provides for local authorities to charge for high hedge notice applications. In difficult financial times such as these, I consider it important to enable local authorities to recover the costs of making a decision. However, I made it clear at the outset that I do not intend the process to be a revenue raiser for local authorities, and the bill reflects my view. Fees must not exceed an amount that local authorities consider represents the reasonable costs of deciding on an application. Should a local authority undertake work in relation to a high hedge, it will be able to recover any costs in that regard as well.
As I said, it appears from the figures that we gathered in respect of England and Wales that a large number of initial inquiries became a small number of formal complaints and even fewer cases where action by local authorities was necessary. That experience shows that simply creating a formal mechanism for resolving disputes encourages the resolution of most cases without the need for local authority involvement. At stage 1, Scothedge said that, with the passing of the bill, 92 per cent of the cases of which it is aware will resolve themselves. Local authorities can therefore have some reassurance that the costs associated with the process should not be too high and that the number of cases involved should be manageable.
I was interested to hear all the evidence at stage 1. I took the opportunity to attend all the committee’s evidence-taking sessions. There was a lot of useful evidence from a number of organisations including Scothedge, the Woodland Trust Scotland, RSPB Scotland, the Scottish Wildlife Trust and Bell Ingram, and from officials from the Isle of Man, the Scottish tree officers group and Dundee City Council. We heard evidence that indicated that similar legislation is in daily use elsewhere and that there is no reason why the approach could not work in Scotland. The evidence also indicated that the existence of the legislation, rather than necessarily its enforcement, will resolve many of the problems associated with high hedges.
Much of the discussion at stage 2 centred on the meaning and definition of a high hedge. That discussion continued today, and I was pleased to support Anne McTaggart’s amendment this afternoon. That amendment will widen the scope of the bill to ensure that it can deal with all hedges that are impacting adversely on the reasonable enjoyment of domestic property.
At stage 2, members were also interested in the fee provisions, which I have described. I emphasise that the bill provides the flexibility for local authorities to set their own fee levels in accordance with local circumstances.
A significant collective effort has got us to this stage, and for those who will implement the bill, the hard work is just beginning. I am aware that the Government held an implementation meeting on Monday in Edinburgh with local authority representatives and others. The meeting considered crucial matters, such as when the bill will be implemented, when local authorities will be ready to work with the provisions, what guidance for members of the public might contain, how members of the public might meet pre-application requirements, approach neighbours and make complaints and what the process would be thereafter. The meeting also considered what guidance for practitioners might contain, as it might also address the factors that a local authority might consider when making decisions.
The intention is that the guidance will be developed over the next six months or so to enable local authorities to make the necessary financial and organisational changes to implement the new powers in the next financial year. I look forward to the legislation being fully in place and used effectively.
I am therefore pleased—indeed, delighted—to move,
That the Parliament agrees that the High Hedges (Scotland) Bill be passed.
15:46
I am very pleased that Parliament has before it the High Hedges (Scotland) Bill, and I am delighted that we have this opportunity to put this new law in place to benefit people in Scotland.
I am glad that there has been widespread support across the chamber for the bill. That much was apparent from early in the process, even before I introduced the bill, when my final proposal obtained cross-party support. I am grateful for the on-going interest, support and encouragement that I have received from fellow members—as well as for the casework, which has helped to shape the bill. The legislation will meet a clear need and desire expressed by people in Scotland in their engagement with Parliament on the issue.
I have found that taking forward the legislation has been very rewarding, but I am conscious that this is not the first time that Parliament has considered high hedges and that legislation on the matter has a long history. Indeed, proposals for member’s bills on the issue were launched on three previous occasions, without those ever proceeding to be considered as bills. I am therefore pleased to be completing a piece of unfinished business.
The then Scottish Executive consulted on the issue in 2000, although the number of responses was relatively small in comparison with the number received in response to a similar consultation in England and Wales the previous year.
The more recent consultation undertaken by the Scottish Government in 2009 attracted in excess of 600 responses, of which 93 per cent were from private individuals, the majority of whom described themselves as being “in dispute”. Not surprisingly, a significant majority of respondents—77 per cent—favoured a legal solution to the problem, and more than two thirds favoured replication of the English and Welsh legislation. I am grateful to Fergus Ewing, who had already done a substantial amount of work on the issue when he had ministerial responsibility for the area, not least that of leading the work behind the 2009 consultation. That gave me a strong basis on which to build my own proposals.
Both I and the officials working with me have met many people and organisations in the course of preparing for the bill and taking it forward, including the Scottish tree officers group, the Convention of Scottish Local Authorities, the Scottish Court Service, the Scottish Mediation Network and the Woodland Trust. I also visited South Tyneside Council and Hartlepool Borough Council for a first-hand account of how similar legislation works in England, and met with the campaigning organisation Scothedge a number of times. The officials supporting me have met a further range of organisations, including the Scottish Wildlife Trust, RSPB Scotland, Scottish Natural Heritage and the directorate for planning and environmental appeals.
We heard earlier that the Scottish Wildlife Trust and RSPB Scotland have recently written to MSPs to express their concerns about the inclusion of deciduous shrubs and trees in the bill, and I have acknowledged their concerns about the potential impact on wildlife and biodiversity. As I said earlier, I am satisfied that the guidance to be provided by the Government on the bill can address those issues and ensure that those potentially negative impacts do not arise in practice. I am therefore grateful that the minister has agreed that both the Scottish Wildlife Trust and the RSPB will be invited to participate in the drafting of guidance on the bill. I am happy, too, that Scottish Natural Heritage has already indicated a willingness to participate in developing the guidance, as it, too, has invaluable expertise to share. I am also grateful to the minister for ensuring that local authorities have been consulted on the potential impact of widening the bill’s definition of a high hedge. I know that many of the issues raised in response to that were considered at the Government’s meeting with local authorities on Monday to discuss implementation.
One of those issues is the impact of the bill on woodland or forests, which Stewart Stevenson raised at stage 1. The short answer is that this is a bill about high hedges, so it is not designed to impact on woodland and forests, which as a general rule are not planted as hedges. I confirm that the Forestry Commission has been consulted during the bill’s progress, and I am sure that the issue can be clarified in guidance to practitioners.
I now turn to the bill itself. It has become clear to me—I am sure that many members across the chamber will recognise this—that there are a number of apparently intractable disputes across Scotland that revolve around the presence of a high hedge, with no easy resolution in sight and no apparent willingness on the part of neighbours to resolve those disputes amicably. In my view, the bill is the best way in which to achieve a practical and sustainable resolution to a long-standing problem. I will now take a short time to explain the bill.
The bill enables those who consider themselves to be adversely affected by the height of a high hedge to apply to their local authority for a high hedge notice. It gives those people an opportunity to put their arguments to an independent body and to have their voices heard, which is an opportunity that they do not have at present. It is important to note that an application must specify all the steps that have been taken to resolve the dispute prior to the application, and local authorities will be able to dismiss applications if that has not been done. The local authority will decide whether the hedge is adversely affecting the reasonable enjoyment of the applicant’s property. In doing so, it will take account of the views of the owner of the hedge and all relevant factors, including the amenity of the wider area.
The bill’s definition of a high hedge has been the subject of much discussion. The bill as introduced mirrors the definition that is used elsewhere. It defines a high hedge as a hedge—that word is important in making it clear that the bill will not usually impact on forests or woodland—that
“is formed wholly or mainly by a row of 2 or more evergreen or semi-evergreen trees or shrubs”,
that
“rises to a height of more than 2 metres”
and that
“forms a barrier to light.”
The amendment that the Parliament has agreed to today widens the definition to include deciduous trees and shrubs by removing the restriction.
The bill gives local authorities powers to make and enforce decisions about high hedges. They will be able to assess situations and make independent decisions on whether high hedges are affecting the reasonable enjoyment of properties. It is fair to point out, however, that the local authority’s decision will seek to strike a balance between the competing rights of neighbours, and the representations of both parties will be taken into account by the local authority. It must make a decision having taken all the circumstances into account, including the amenity of the wider neighbourhood, and if it finds that a high hedge is having an adverse effect, it must advise whether any action should be taken.
Where the local authority decides that action should be taken, it will issue a high hedge notice. The notice will set out what initial action is required to be taken to address the adverse effect and what preventative action is required to prevent the adverse effect from recurring. The high hedge notice will also set out the timeframe within which action should be taken.
The bill provides a right of appeal to the Scottish ministers against decisions by local authorities. In practice, appeals will be heard by the directorate for planning and environmental appeals, and it will issue full details of how that process will work in practice in due course.
If an owner of a high hedge does not take the action that is specified in the high hedge notice, the local authority will have the power to enter the property and undertake the work itself. It will then be able to recover the costs of doing so from the hedge owner. In summary, the bill provides a mechanism for resolution.
Recourse to the local authority is, however, to be used as a last resort. Primary responsibility for resolving disputes over high hedges should lie with the individuals concerned in the first instance. As I said, the bill requires that applicants for a high hedge notice must have taken all reasonable steps to resolve the matter before they make an application to the local authority.
The success of that approach is borne out by experience elsewhere. In England and Wales, what started off as a large number of inquiries became a number of formal applications, which quickly became a small number of formal complaints and almost no instances of enforcement action. It is important to emphasise that the application to the local authority should be the last resort, not the first.
The bill also provides for local authorities to charge for high hedge notice applications. In difficult financial times such as these, I consider it important to enable local authorities to recover the costs of making a decision. However, I made it clear at the outset that I do not intend the process to be a revenue raiser for local authorities, and the bill reflects my view. Fees must not exceed an amount that local authorities consider represents the reasonable costs of deciding on an application. Should a local authority undertake work in relation to a high hedge, it will be able to recover any costs in that regard as well.
As I said, it appears from the figures that we gathered in respect of England and Wales that a large number of initial inquiries became a small number of formal complaints and even fewer cases where action by local authorities was necessary. That experience shows that simply creating a formal mechanism for resolving disputes encourages the resolution of most cases without the need for local authority involvement. At stage 1, Scothedge said that, with the passing of the bill, 92 per cent of the cases of which it is aware will resolve themselves. Local authorities can therefore have some reassurance that the costs associated with the process should not be too high and that the number of cases involved should be manageable.
I was interested to hear all the evidence at stage 1. I took the opportunity to attend all the committee’s evidence-taking sessions. There was a lot of useful evidence from a number of organisations including Scothedge, the Woodland Trust Scotland, RSPB Scotland, the Scottish Wildlife Trust and Bell Ingram, and from officials from the Isle of Man, the Scottish tree officers group and Dundee City Council. We heard evidence that indicated that similar legislation is in daily use elsewhere and that there is no reason why the approach could not work in Scotland. The evidence also indicated that the existence of the legislation, rather than necessarily its enforcement, will resolve many of the problems associated with high hedges.
Much of the discussion at stage 2 centred on the meaning and definition of a high hedge. That discussion continued today, and I was pleased to support Anne McTaggart’s amendment this afternoon. That amendment will widen the scope of the bill to ensure that it can deal with all hedges that are impacting adversely on the reasonable enjoyment of domestic property.
At stage 2, members were also interested in the fee provisions, which I have described. I emphasise that the bill provides the flexibility for local authorities to set their own fee levels in accordance with local circumstances.
A significant collective effort has got us to this stage, and for those who will implement the bill, the hard work is just beginning. I am aware that the Government held an implementation meeting on Monday in Edinburgh with local authority representatives and others. The meeting considered crucial matters, such as when the bill will be implemented, when local authorities will be ready to work with the provisions, what guidance for members of the public might contain, how members of the public might meet pre-application requirements, approach neighbours and make complaints and what the process would be thereafter. The meeting also considered what guidance for practitioners might contain, as it might also address the factors that a local authority might consider when making decisions.
The intention is that the guidance will be developed over the next six months or so to enable local authorities to make the necessary financial and organisational changes to implement the new powers in the next financial year. I look forward to the legislation being fully in place and used effectively.
I am therefore pleased—indeed, delighted—to move,
That the Parliament agrees that the High Hedges (Scotland) Bill be passed.
15:46
In the same item of business
The Deputy Presiding Officer (John Scott)
Con
The next item of business is a debate on motion S4M-06038, in the name of Mark McDonald, on the High Hedges (Scotland) Bill. Before I invite Mark McDonald to...
The Cabinet Secretary for Finance, Employment and Sustainable Growth (John Swinney)
SNP
For the purposes of rule 9A.13 of the standing orders, I advise Parliament that, having been informed of the purport of the High Hedges (Scotland) Bill, Her ...
The Deputy Presiding Officer
Con
Many thanks. We can now begin the debate. I call Mr McDonald, if he is ready.15:35
Mark McDonald (North East Scotland) (SNP)
SNP
I am delighted to open the debate, Presiding Officer.I am very pleased that Parliament has before it the High Hedges (Scotland) Bill, and I am delighted that...
The Minister for Local Government and Planning (Derek Mackay)
SNP
I am pleased to be here for the debate. A legislative framework to tackle high hedges was a manifesto commitment of this Government, and I am pleased to see ...
The Deputy Presiding Officer
Con
I call Sarah Boyack. You have a fairly exact five minutes, Ms Boyack.15:53
Sarah Boyack (Lothian) (Lab)
Lab
I take the hint, Presiding Officer.Like other colleagues, I point out that this legislation has been a long time coming and builds on the work of many people...
Margaret Mitchell (Central Scotland) (Con)
Con
Once again, I congratulate Mark McDonald on bringing the bill to the Parliament. I also pay tribute to members past and present who have kept the issue alive...
Mark McDonald
SNP
I seek clarification, because I think that I heard the member suggest that single deciduous trees would be captured by the change of definition. That is not ...
The Deputy Presiding Officer
Lab
I can give you back the time for taking an intervention, Ms Mitchell.
Margaret Mitchell
Con
I actually said that although there had been a lot of discussion about single deciduous trees, deciduous trees—but not single deciduous trees—were now includ...
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
SNP
As I am sure that other members will do, I congratulate Mark McDonald on bringing home this important bill. To that, I add my congratulations to Scothedge. W...
Anne McTaggart (Glasgow) (Lab)
Lab
As a member of the Local Government and Regeneration Committee, I welcome the opportunity to scrutinise once again the proposals of the High Hedges (Scotland...
The Deputy Presiding Officer (Elaine Smith)
Lab
I advise members that there is a little bit of time in hand at the moment—not much, but a bit—for interventions.16:11
Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)
SNP
I am usually told that there is no time in hand. This is a first.All credit to Mark McDonald, because it is not as easy as it looks to pilot a member’s bill....
Stewart Stevenson
SNP
Apart from those.
Christine Grahame
SNP
Apart from those that I have trailed.I also pay credit to others who have gone before. Scott Barrie worked for a long time on the issue, as did Fergus Ewing ...
Stuart McMillan (West Scotland) (SNP)
SNP
I welcome the fact that the bill has got to this stage, and add my congratulations to Mark McDonald MSP and to the Scottish Government on assisting him in br...
Stewart Stevenson
SNP
Does the member agree that the stage 2 process through which we put our bills can often provide a very useful way of testing the resolve of the promoter of a...
The Deputy Presiding Officer
Lab
Stuart McMillan can have the time for that intervention back.
Stuart McMillan
SNP
Thank you.I absolutely and whole-heartedly agree with Stewart Stevenson’s comments on the parliamentary process. I am sure that there is a debate to be had o...
Jackie Baillie (Dumbarton) (Lab)
Lab
I very much welcome the opportunity to contribute at stage 3 of the bill. Like many in the Parliament, I have been supportive of the bill’s intentions for mu...
Christine Grahame
SNP
I shall attend only in an advisory capacity. Jackie Baillie will be the lady with the pruning shears.
Jackie Baillie
Lab
Oh, and I was getting excited for a moment. Clearly, I am to be disappointed.This journey started a number of years ago with our former colleague Scott Barri...
Stewart Stevenson
SNP
Would the member agree that, in the kind of disputes that we get around high hedges, and indeed elsewhere, the parties tend to take an entrenched position th...
Jackie Baillie
Lab
I am grateful for that intervention, and I could not agree with the member more. Some of those constituents approached me as early as 2003 or 2004, and someb...
Kenneth Gibson (Cunninghame North) (SNP)
SNP
I thank Mark McDonald for introducing the bill and for the dedication and hard work he put into ensuring that the bill was coherent and could be delivered ef...
The Deputy Presiding Officer
Lab
Full names, please.
Kenneth Gibson
SNP
The effect of high hedge disputes cannot be downplayed. Friends and neighbours can become bitter opponents and home owners’ ability to enjoy their surroundin...
Kevin Stewart (Aberdeen Central) (SNP)
SNP
Like colleagues, I take my hat off to Mark McDonald for his work during the passage of the bill. However, in all fairness, even he would recognise that his s...