High Hedges (Fee Transfer) Regulations (Northern Ireland) 2012
Northern Ireland Assembly
I beg to move
That the draft High Hedges (Fee Transfer) Regulations (Northern Ireland) 2012 be approved.
As Members know, the regulations are made under section 4(4) of the High Hedges Act (Northern Ireland) 2011. The Act requires that the regulations be laid in draft and approved by resolution of the Assembly. Public consultation on the draft regulations took place between 28 June 2011 and 20 September 2011, and 88 responses were received, the majority of which supported the principle that the hedge owner should bear the costs associated with investigating a high hedge complaint.
The regulations implement the desire of the previous Assembly that the hedge owner rather than the complainant should bear the costs associated with high hedge complaints. If a complaint is made to the local council about a high hedge, and the council decides that the hedge is acting as a barrier to light — I stress that it must act as a barrier to light — and meets the criteria of the High Hedges Act, it will issue a remedial notice requiring the height of the hedge to be reduced. When that notice takes effect at least 28 days after the issue date to allow time for any appeals to be lodged, the complainant will have any complaints fee refunded, and the council can then charge the hedge owner a fee to cover the administrative costs associated with investigating the complaint.
Councils have the discretion to set the level of the complaints fee up to a maximum of £360; they can also decide not to charge any fee or to offer reduced fees for certain groups of people. They also have the discretion to set the level of fee to levy on the hedge owner up to that maximum. In addition to the fee, the hedge owner will have to bear the costs associated with performing the remedial work and the ongoing maintenance to prevent the problem reoccurring. The remedial notice is registered as a statutory charge on the land so that future owners will be aware of their responsibilities to maintain the hedge. I ask the Assembly to approve the regulations.
Anna Lo (Alliance)
The issue of fees for high hedges disputes was heavily debated by the previous Environment Committee when taking the High Hedges Bill through Committee Stage. The arguments for councils charging the fee for the service were varied. On one hand, some felt that it was only right that someone making a complaint should have to pay for work that the council would do on their behalf. That would encourage parties to sort out their high hedge problem before going to the council, help to deter malicious complaints and avoid the majority of ratepayers paying for a service from which they would not benefit. However, some councils told the Committee that they did not want to charge for the service because they do not charge for their other environmental services and the charge would contradict that principle.
As a result, the Committee was content that the legislation should allow councils to choose whether or not to charge a fee and how much that fee should be. Its one proviso was that there should be an upper limit on how much a council could charge. That was because the Committee had seen evidence of the prohibitive fees charged by councils in other jurisdictions. Legislation capping the fee has now been laid and is welcomed by the Committee.
However, members also took the view that complainants should not have to bear the cost of making a complaint if that complaint is subsequently found to be valid. Members felt that that would be unfair and would go against the widely accepted principle that innocent parties should not be out of pocket. It would also contradict the “polluter pays” principle. The Committee felt strongly that the cost of the complaint should be borne by the hedge owner if a complaint is upheld, so it recommended that, if a council charges a fee for providing a high-hedge complaint service, it should be required to refund that fee for successful complaints. That would also ensure that a complaint fee would not deter someone from complaining if genuinely troubled by a high hedge.
However, members recognised that that would place the burden on all ratepayers for a service that only a fraction of them were likely to use, so the Committee also recommended that the Bill should be amended to make provision for a complaint fee to be passed to the hedge owner in the event of a complaint being upheld. That is more or less what the statutory rule we are considering today does. It does not compel councils to recoup money from hedge owners, but it does give them the opportunity to do so should they wish. Members recognise that, although not quite what was originally envisaged, that flexibility will be useful when a council wants to exercise discretion or concessions for hedge owners where appropriate.
On balance, therefore, the Committee is content that the draft rule supports the principle that the innocent party in any high hedge dispute should not end up paying the fee. It should also encourage high hedge owners to sort their problems out with their neighbours long before the issue is taken to council. Prevention rather than cure was always the overall intention or aspiration of the High Hedges Act (Northern Ireland) 2011. The Committee considered the draft rule at its meeting on 23 February, and members were content for me to recommend to the Assembly that it be affirmed.
Peter Weir (DUP)
As someone who was on the Committee at the time of the high hedges legislation, I very much welcome the regulations before us today. By way of background, this provides a final piece in the jigsaw as regards the high hedges legislation. There has, understandably, been a slight degree of frustration, or at least a lack of knowledge among some members of the public, in relation to the legislation. Because of the complexity of it, it was always going to need some subordinate legislation to make it workable. There is, naturally, a misunderstanding among the public that, once they see a particular piece of legislation, it immediately comes into effect. That was never going to be the case with this legislation, because it was important that the regulations were got right.
There has been frustration, in part because the corresponding legislation, particularly in England, went through a number of years ago. However, this is a good example of how devolution works in that the Assembly has been able to scrutinise the legislation. In England, a number of mistakes were made with the fees set-up. We have taken the time to learn from those mistakes and make sure that we have a fees system that is, hopefully, much more fit for purpose than what exists in England.
One of the problems, as was mentioned by the Chair of the Committee, was that there are wildly differing fees across England and no maximum amount has been put in place.
In the jigsaw that we have constructed around high hedges, it is right that a cap is put on that so that, going from one jurisdiction to the next, people will not see wildly differing costs in connection with it. Fees are something that Committee members pressed very strongly on. Effectively, I suppose, the regulations come largely from a Committee amendment, which, to be fair, the then Minister very readily accepted.
Mention has been made of the “polluter pays” principle. Very much allied to that, and the thinking behind it, is what would happen in a legal case. I am sure that the Minister will be very familiar with this, given his background. Essentially, fees or costs follow the event. There was one initial weakness in the legislation, which this regulation changes. Clearly, there was a need for a certain level of fee, because this should not be something that is simply entered into lightly or, as was indicated, something vexatious. In an ideal world, there would be no need for the legislation at all. If people were acting as good neighbours, in 99% of cases things would be resolved before getting to this stage. Unfortunately, we do not live in the sort of world in which everybody is as neighbourly and altruistic as that. So, there was a feeling that, yes, a fee should be attached. Therefore, for example, if an applicant was shown to be in the wrong or vexatious, they should pick up the tab. That is the perfectly correct way to do it.
The other guiding principle enshrined in the regulations is that this should not be something that is a general cost to the ratepayer. If the legislation is designed to solve neighbourhood disputes, the cost should not be something that impacts on the wider public. So, it was right to have a provision that, if somebody made a complaint and that complaint was not upheld, they would be responsible for the fee connected to the complaint. However, until changes were made to the legislation, the flip side was not the case. If someone made a complaint and was shown to be completely in the right and remedial action ordered, they would still be left with the cost. Therefore, these regulations now cover the situation in which, previously, someone making an utterly vexatious complaint, possibly even motivated by a degree of malice, and somebody making a very genuine complaint having suffered for a number of years because of high hedges, would be left in the same position. This passes the burden to whoever is found to be responsible, whether that is the applicant being in the wrong or the hedge owner having failed to take the opportunity to take their own remedial action.
There is flexibility in the regulations so that there can be some degree of discretion by a council. If the council feels that remedial action is needed but that, for some reason, be that financial or whatever, it would be unfair or unjust to pass the bill on to the hedge owner, the council does have an opportunity to bear the cost in those exceptional circumstances.
The regulations provide balance and take a reasonable approach, so that the innocent party is, at all times, protected. They will also, effectively, cover ratepayers and ensure that they are protected. Taking these regulations on board is the last piece of the jigsaw and, as I understand it, will mean that the legislation itself will be able to be in full effect from 31 March and, consequently, it will be welcomed.
Looking at this issue from the outside, some people may sneer and question whether high hedges are really a major problem. For a lot of people, high hedges are the key problem in their lives. It is something that is very irritating for a small number of people. One purpose of today’s legislation, and the wider high hedges legislation, is to act as a deterrent to bad behaviour. It will hopefully lead to disputes being solved at an early basis, because there will be an opportunity now for later intervention. Hopefully, it will mean that a greater neighbourly stance will be adopted by more and more people. We now have statutory protection for people, and that will have effect from the end of this month. I welcome very strongly the regulations in front of us today.
Cathal Boylan (Sinn Féin)
Go raibh maith agat, a Phríomh-LeasCheann Comhairle. I support the legislation. It generated a lot of debate, and it took people a long time to articulate their points. It is a small piece of legislation, but it will be very effective. It gives councils a wee mechanism to deal with issues that cannot be resolved through mediation, but I hope that councils do everything in their power to go down the mediation road before they decide to use this tool. It has highlighted one thing. In the previous debate, we talked about consultation and participation. As we went through the legislation, we received many consultative responses from local authorities and councils. However, when we went to introduce the legislation, we found that some councils were not keen to use it. That is just right. We have created a little mechanism for councils to use. I encourage those Members who are still in councils to try mediation first before they use the regulations. Go raibh míle maith agat.
Danny Kinahan (UUP)
I will be brief. The Ulster Unionist Party welcomes the transfer mechanism. As the legislation went through the Committee, I was amazed as what I thought was a simple Bill became more and more complicated. However, as we consulted, it was absolutely right that it became more complex. The solutions that we came up with, including the solution today, are right. As an example, there is a hedge in Crumlin that is 25 feet high and stretches the whole length of a lady’s garden; it means that she gets no light at any time of day and cannot put a satellite dish in her garden. Despite having knocked on the door of the home next door and having written to the owner, I cannot get any acknowledgement. That is one person whom the legislation will help. In Templepatrick, a builder was next to five or six houses. Once he was written to and pushed, he cut down the hedge. We are getting through; mediation is the right way forward.
We were absolutely right to put a cap on the fees. We must keep pushing to make sure that everyone tries to resolve things before they get to that point. The legislation is fair, and it leaves councils room for discretion. My only concern is where we have someone who is elderly and cannot cut their hedge or who does not have the money. I hope that councils will use their discretion in that regard.
I have one little story from my days on Antrim Borough Council that concerns me. To get a £75 litter fine paid, it would cost the council £800 to go to court. We want to push for mediation, but we do not want it to cost councils or ratepayers too much. Good work was done by the Committee, and I support the change.
Like my colleagues, I welcome the progress that has been made. I look forward to the regulations. The legislation will be welcomed by many people, particularly those who do not see the light of day because their contact with the outside world has been blanked out by leylandii and Castlewellan gold. I have no grudge against people in County Down.
That is not to say, of course, as was mentioned previously by others, that this is the panacea for all problems relating to high hedges. It most certainly is not. Nevertheless, it is the sound basis for addressing an issue that has bedevilled society for many years, particularly in urban areas and housing estates, but not exclusively so; we have rows in rural areas as well about high hedges. I know that people will be looking forward to this legislation as an opportunity to have restored to them God’s gift of light.
I think that it was pointed out by other Members that the legislation is not a substitute for common sense, compromise and an ability to reach agreement. In many cases, and hopefully most, I suspect that that will remain the way forward. I am sure that local councillors will not look forward to an avalanche of complaints about high hedges. I am saying that the regulations are not a panacea and will not end all the problems, and I am quite sure that few high hedges will be shaking in their roots for fear of being turned into totem poles. The message is that that will not happen.
At this stage, it is important to express our thanks to the people who gave evidence to the Committee, particularly councillors and officials who gave up their time to come along. I think that it was worthwhile because I believe that it influenced the legislation and made it more practical. Initially, I was concerned that we had simply plucked the legislation from Britain, and you know how I feel about that. However, I now think that it has been properly tailored to suit our particular needs in Northern Ireland, so I welcome it.
Lord Morrow (DUP)
I welcome the fact that we have got to where we are with the Bill. As someone who has been on the Environment Committee since the May election, I was under the illusion that the Bill was further advanced. I understand and am delighted that — I hope I do not misquote — the Bill will be in force on 31 March. I suspect that it is fortuitous that it was decided not to implement it on 1 April, because that may have sent out altogether the wrong message.
I also welcome that Members around the House said that the Bill is probably not the best way to resolve things. The best way to resolve things is still by negotiation. I have experience of being involved in resolving an issue concerning a set of trees that extended skywards to a height of 80 to 100 feet. I was able to get those trees reduced to something like 10 to 15 feet, and I met neither the complainant nor the person who owned them. Rather, we were able to do it via telephone calls and e-mail. That demonstrates clearly that the way forward remains negotiations.
However, as Peter Weir said, we do not live in an ideal world in which everybody sits down and negotiates. If that were the case, we would not need the Bill at all. If hardy comes to hardy and legislation must be used, it will be the polluter who pays. It would have been an injustice, a travesty, if, in the case of a genuine concern and complaint, the person who caused the pollution got away, yet the complainant could not move, or when they did, they would be landed with a considerable bill. There was an injustice there, and I am pleased that that will not be the case.
The legislation is good, if we have to use it, and I trust that we will not. However, there will sometimes be no other way. As Mr Dallat said, the Bill is not the panacea to all our problems. High hedges are an issue that must be dealt with and one that is causing considerable concern to a considerable number of people. There are people in society, not least in the legal profession, who are waiting patiently for the legislation because there does not appear to be any other way forward. They have no other means of exerting influence or getting the job done, but I again emphasise that we did not need any legal wizards around the table in the two cases that I was involved in. We did not need any legislation, just common sense. I hope that I was able to mediate between the two to get the desired result, and both parties surprised —
Lord Morrow (DUP)
No. We will not bring the legal system into it at all. At the end of the day, both parties were happy.
Therefore, on those couple of occasions, without all the paraphernalia of legislation, we did not need solicitors, lawyers, QCs and all the eminent people who bring so much to society. I hope that we will not need them in future and that the threat of legislation might be enough to get the desired result. I welcome the fact that the regulations are at this stage. I look forward to waking up on 1 April when, lo and behold, there will be legislation that nobody will make a fool of.
I thank all Members who contributed to the debate. I will reply to a number of issues that Members raised, starting with Lord Morrow. After the legislation was passed, there was a requirement for a further period of consultation because the possibility of transferring a complaints fee to a hedge owner, which was a late Committee amendment, had not been subject to public consultation during the development of the primary legislation. Moreover, there was a need to ensure that, given that the legislation goes live in three weeks’ time on 31 March, council officers were trained in the management of the new legislation. As Mr Kinahan said, a simple idea can escalate and become quite complex, as his colleague John McCallister knows from the passage of the Caravans Act (Northern Ireland) 2011.
The complexity of the High Hedges Act (Northern Ireland) 2011 — the height to which trees can be cut back, the legislation not extending to trees around commercial properties, and so on — required significant training. Councils need to be fully aware of the intention and practice of the new law to ensure that public expectations are fulfilled. Given the further consultation and the training, 31 March was the earliest that the legislation could go live. As Lord Morrow and others said, it is good law if we have to use it. However, I would like to think that people will resolve such matters, although it is sometimes hard to do so because they are often embedded in the neighbourhood and are a surrogate for wider issues. On the far side of 31 March, it will be expected that anybody who wants to bring forward a complaint will make one final significant attempt to resolve the source of the complaint before lodging it with a council.
I confirm the Chairperson of the Environment Committee’s comment that a maximum fee of £360 has been laid down to cover administration costs. In Britain, fees vary between zero and £600, the average being £340. On this occasion, a judgement was made to decide on a figure of £360 to cover some council administration costs. Councils have complained that although they are getting new powers, they are not getting new resources. That situation will not change. Following on from what a Sinn Féin Member said earlier, I hope that the fact that new resources have not followed new powers does not lead to impediments to the new law being enforced after 31 March. There will be a public expectation. We expect a stream of complaints and, during the first year of operation, that there will be 30 appeals arising from council decisions. Based on evidence from Britain, that is the scale of what we are talking about, which would be the worst outcome. I appeal to council leaderships, chief executives and other staff to ensure that the legislation is available to complainants after a significant effort has been made to resolve their ongoing dispute.
The councils do not have to charge £360; they have discretion to reduce the fee and, as Members have indicated, the fee will be refunded to the complainant after a remedial notice has been determined by the council. All of that should lead to reducing the risk of vexatious complaints on the one hand and good outcomes, in the event that the law is required, on the other.
Let me acknowledge that Peter Weir said that this is a useful piece of legislation borrowing from the experience of other jurisdictions. Consequently, our model seems to be proportionate and workable, hopefully not relied on in excess, but relied on when no other remedy exists.
I also acknowledge the work of the Committee. A useful amendment came late in the passage of the Bill, and it created a Bill that was more balanced, more in the interests of the complainant and less in those of the offender. That seems to me to be a good and wise outcome, and I commend the order to the House.
Question put and agreed to.
That the draft High Hedges (Fee Transfer) Regulations (Northern Ireland) 2012 be approved.