Lord Cameron of Lochiel:

Moved by Lord Cameron of Lochiel

50: After Clause 11, insert the following new Clause—“Removal of power of entry under Part 8 of the Anti-Social Behaviour Act 2003In the Anti-Social Behaviour Act 2003, omit section 74 (power of entry in relation to complaints about high hedges).”Member’s explanatory statementThis Amendment would repeal provisions of the Anti-Social Behaviour Act 2003 that permit the local authority to enter a person’s property without their consent to investigate complaints about high hedges.

My Lords, this Amendment seeks to repeal provisions of the Anti-social Behaviour Act 2003 that permit the local authority to enter a person’s property without their consent to investigate complaints about high hedges. I entirely accept that this is a somewhat niche and technical amendment, but it is nevertheless an important one. The 2003 Act established a regime whereby individuals can make a complaint about their neighbour’s high hedge. This provision made its way into the Act after amendments to the Bill in your Lordships’ House during its passage in 2003.

The intention was understandable, but it is one thing to give people the ability to complain about their neighbour’s high hedge and another matter entirely to grant the state the right to enter a person’s private property without their consent simply to measure that hedge. Such a power is and must always be exceptional. It should be tightly drawn and robustly justified. We submit that the matter of high hedges, however irritating or capable of provoking neighbourhood disputes, simply does not meet that threshold. Section 74 was conceived at a time when the framework for powers of entry was far less coherent than it is today, and since then, Parliament has rightly legislated to reduce, rationalise and strengthen oversight of such powers. The Protection of Freedoms Act 2012 in particular represents a significant step towards rebalancing the relationship between citizens and the state. Yet the power preserved in Section 74 stands out as an anomaly, disproportionate in nature and insufficiently justified in practice.

Nothing in this amendment removes the ability of local authorities to investigate complaints about high hedges; those mechanisms remain entirely intact. What this amendment does is require them to do so without resorting to an intrusive power that in most cases is wholly unnecessary. Local authorities already have ample means to assess complaints—photographic evidence, site visits with permission, communication with affected neighbours and, where appropriate, the use of warrants if there is truly a pressing need.

We know that the existence of a power of entry, even one rarely used, changes the character of the relationship between citizen and authority. At a time when public confidence in local decision-making is precious and when we should be looking to promote proportionate approaches to neighbourhood disputes, this is precisely the kind of redundant power that ought to be removed from the statute book. It is not only a matter of principle, although principle is certainly at stake; it is a matter of clarity and good governance. In pruning back this outlier power, we would produce a statute book that is more coherent and consistent with long-established protections for private property. I beg to move.

My Lords, I listened attentively to the noble Lord, Lord Cameron of Lochiel, and I am inclined to agree with him—in part. I start by declaring my interest as the part owner of a property that has high hedges on both sides of our home. One side is higher than the other: approximately four to five metres high. It may well keep the sun out of our neighbour’s front garden in winter when the sun is low in the sky, but since it is where they park their cars and it is their hedge, they are not that worried. We cut our side of the hedge and bought a special three-legged ladder to ensure that this was conducted safely and my husband did not break his neck. I stress that neither hedge is Leylandii.

The right to light is something that many of us take for granted. However, travelling to Waterloo on the train every day, I can see that many of those who live towards the bottom of high-rise flats have little or no right to light. I understand and sympathise with those who live close to a property which has a high hedge obscuring the sun from their house and garden.

While good hedges and fences make for good neighbours, excessively tall and untidy hedges may not. It is always better if neighbouring properties can come to some accommodation about what is acceptable as the height of a hedge. Where this is not possible and communication has broken down, there must be some recourse for those suffering from being on the wrong side of a very high hedge. In the first instance, this will be the local authority.

Currently, local authorities have the right to enter a property without the owner’s consent to investigate a high hedge complaint. Given the current budget restrictions on local authorities, I cannot imagine that many officers will pitch up unannounced at a property to investigate. They would much rather not have a wasted journey, and hope to solve the problem easily—that is, unless they have previously been threatened when visiting the hedge.

The problem with the hedge will depend on what is growing in it. Leylandii causes a significant problem, being dense and fast-growing, enabling a hedge to reach unsatisfactory heights in a relatively short time. If there is a considerable problem with such a hedge, then just how is it to be resolved if local authorities are not involved in finding a solution? Will one party continue to have the disadvantages of living with the high hedge and all that involves while the owner of the hedge remains intransigent and deaf to their protests?

This is unacceptable. I have sympathy with those who suffer from high hedges and am keen to find a solution. The legislation in the Anti-social Behaviour Act 2003 was introduced not on a whim but in a serious attempt to tackle unpleasant situations arising between neighbours. While the best solution is for difficulties to be sorted out between the interested parties, that is not always possible. In those cases, the local authority should have the power to intervene. I look forward to the Minister’s response.

I am grateful to the noble Lord, Lord Cameron of Lochiel, for tabling what he termed a niche Amendment today—there is nothing wrong with a niche amendment; it has generated discussion. As the noble Baroness, Lady Bakewell, has just said, this puts the focus back not on the legislation or even on the enforcement but on whether, when discussions between parties break down, the local authority should be and is the arbiter of the dispute and, in order to be the arbiter of the dispute, whether the local authority can have access to the property.

It is important to say that, when assessing a complaint or appeal, issuing a remedial notice to an individual or assessing whether an individual has taken the necessary action, entering a property to assess the hedge in question surely is not a niche issue; it is part of the role of the local authority to be able to assess that issue. The Government believe that local authorities are best placed to consider unresolved disputes on high hedges; the procedures are set out in national guidance.

On the point that the noble Baroness, Lady Bakewell, has mentioned, I note that the Anti-social Behaviour Act 2003 enables local authorities to intervene, as a last resort. It should be for neighbours to try to sort these matters out, but there are opportunities for people who are unhappy with the council’s decision to have a right of appeal to the Secretary of State in cases in England. The power of local authority officers to enter someone’s property is an important part of ensuring such disputes are resolved and any remedial action is taken.

I assure the noble Lord that the power of entry is a power to enter a “neighbouring land” to carry out functions under Part 8 of the Act. The term “the neighbouring land” means the land on which the high hedge is situated—effectively someone’s garden. A local authority must give 24 hours’ notice of its intended entry and, if the land is unoccupied, leave it as effectively secured as it was found. I stress to the noble Lord that there is clear guidance on GOV.UK for local authorities in exercising their powers. The Government will keep this guidance under review.

In the absence of disputes being resolved by neighbours themselves—as the noble Baroness has said—amicably between the parties, it is possible that there are remedial powers to step in and require the offending property owner to take action. Where they fail to do so, it is also right that the local authority should be able to undertake the remedial work itself and charge the householder concerned. To do this, it is necessary to undertake the niche point of entering someone’s garden to examine the fence or hedge or to erect a platform on the highway to do the same.

If we accepted the proposal from the noble Lord, Lord Cameron, today, I do not know how local authorities would be able to assess in terms of the legislation under the Act. If he says he does not believe the legislation under the Act is appropriate, and we should not have high hedges legislation, that is a different point. If we do have that legislation, then we need a mechanism whereby the local council can enter a premises. There might well be occasions where the local council must do that because relations have broken down to such an extent that only the local council can resolve it, and therefore it must undertake entry into a person’s garden or erect a platform to assess the issue in the first place. That is not a gross invasion of a householder’s property; it is a sensible resolution by a third party—given the powers to do so under the 2003 Act—to resolve an issue that neighbours have not been able to resolve.

The local council may resolve the complaint in favour of the complainant or in favour of the person with the high hedge; that is a matter for them. But if the council does not have access to the property to do that, then the niche discussion will be about not being able to resolve the problem, so I hope the noble Lord will withdraw his amendment.

My Lords, I thank those in your Lordships’ House who have spoken in this debate. I am delighted to have a degree of support from the noble Baroness, Lady Bakewell, who, as she recounted, has had some personal experience of this issue. I reiterate to the Minister that it seems entirely disproportionate for local authorities to be able to enter a person’s private property without their consent to investigate this issue—that is what underpins this Amendment. I do not want to beat around the bush any more, and, for now, I beg leave to withdraw my amendment.

Amendment 50 withdrawn.