Statutory
Instrument 2005 No. 711
The
High Hedges (Appeals) (England) Regulations 2005
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(England) Regulations 2005, ISBN 0110725522.
2005 No. 711
ANTI-SOCIAL BEHAVIOUR, ENGLAND
HIGH HEDGES
The High Hedges (Appeals) (England) Regulations 2005
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Made
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14th
March 2005
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Laid
before Parliament
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22nd
March 2005
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Coming
into force
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1st
June 2005
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The First Secretary of State, in exercise of the powers conferred by
sections 72 and 94 of the Anti-social Behaviour Act 2003[1],
hereby makes the following Regulations:
Citation, commencement, and application
1. - (1)
These Regulations may be cited as the High Hedges (Appeals) (England)
Regulations 2005 and shall come into force on 1st June 2005.
(2) These Regulations apply in relation to
appeals under section 71 of the Anti-social Behaviour Act 2003 relating
to hedges situated in England.
Interpretation
2. In
these Regulations -
"the
Act" means the Anti-social Behaviour Act 2003;
"appeal
form" means a document in the form supplied by the Secretary of
State for the purposes of proceedings under these Regulations, or in a
form to the same effect;
"appointed
person" in relation to an appeal, means a person appointed under
section 72(3) of the Act to hear and determine the appeal;
"complainant"
in relation to an appeal, means-
(a)
all or any of the persons who made the complaint by reference to which
the remedial notice that is the subject of the appeal was given; or
(b) if, when notice of the appeal is given, each of them has ceased to
be an owner or occupier of the domestic property specified in the
complaint, any other person who is for the time being an owner or
occupier of that property;
"parties"
in relation to an appeal, means the appellant, the relevant authority
and every person, other than the appellant, who is-
(a)
a complainant; or
(b) an owner or occupier of the land where the high hedge is situated;
"preliminary
information" means the names and addresses supplied by the
relevant authority in accordance with regulation 8;
"questionnaire"
means a document in the form supplied by the Secretary of State for
the purpose of these Regulations, or in a form to the same effect; and
"relevant
authority" in relation to an appeal, means the local authority
that made the decision or took the action that is the subject of the
appeal.
Issue
of a remedial notice - grounds of appeal
3. An
appeal under section 71(1) of the Act against the issue of a remedial
notice may be made on any of the following grounds -
(a)
that the height of the high hedge specified in the remedial notice is
not adversely affecting the complainant's reasonable enjoyment of the
domestic property so specified;
(b) that the remedial action or preventative action, or both (as the
case may be) specified in the remedial notice is insufficient to
remedy the adverse effect of the high hedge on the complainant's
reasonable enjoyment of the domestic property so specified or to
prevent its recurrence;
(c) that the remedial action or preventative action, or both (as the
case may be) specified in the remedial notice exceeds what is
necessary or appropriate to remedy the adverse effect of the high
hedge or to prevent its recurrence;
(d) that the period specified in the remedial notice for taking the
initial action so specified falls short of what should reasonably be
allowed.
Withdrawal
etc of remedial notice - grounds of appeal
4.
- (1) Where -
(a)
a remedial notice is withdrawn without the agreement of the
complainant; and
(b) the relevant authority have not issued a further remedial notice
in respect of the same high hedge,
an
appeal under section 71(1) of the Act against the withdrawal of the
notice may be made on the ground that there has been no material change
in circumstances since the remedial notice was issued that justifies
withdrawal of the notice.
(2) Where the relevant authority has waived or
relaxed the requirements of a remedial notice without the agreement of
the complainant or the owner or occupier of the land where the high
hedge is situated (as the case may be), an appeal under section 71(1) of
the Act against the waiver or relaxation may be made on any of the
following grounds-
(a)
that there has been no material change in circumstances since the
notice was issued that justifies the waiver or relaxation of its
requirements;
(b) that the requirements of the remedial notice, as waived or
relaxed, are insufficient to remedy the adverse effect of the high
hedge on the complainant's reasonable enjoyment of the domestic
property specified in the notice or to prevent its recurrence;
(c) that the requirements of the remedial notice, as waived or
relaxed, exceed what is necessary or appropriate to remedy the adverse
effect of the high hedge or to prevent its recurrence.
Unfavourable
decisions - grounds of appeal
5. An
appeal under section 71(3) of the Act (where the relevant authority
decide otherwise than in the complainant's favour), may be made on
either of the following grounds -
(a)
that the relevant authority could not reasonably conclude that the
height of the high hedge specified in the complaint is not adversely
affecting the complainant's reasonable enjoyment of the domestic
property so specified;
(b) that, having concluded that the height of the high hedge specified
in the complaint is adversely affecting the complainant's reasonable
enjoyment of the domestic property so specified, the authority could
not reasonably conclude that no action should be taken with a view to
remedying that adverse effect or preventing its recurrence.
Determination
of appeals by Secretary of State
6.
Paragraph 2(c) of Schedule 20 to the Environment Act 1995 (revocation of
appointments)[2] shall apply in relation to
appointments under section 72(3) of the Act as it applies in relation to
appointments under section 114 of the Environment Act 1995.
Notice of appeal
7. - (1)
A person who wishes to appeal shall give notice of that appeal to the
Secretary of State by submitting to him, within the period determined or
allowed under section 71(4) of the Act[3] a
completed appeal form and a copy of any supporting documents.
(2) The appellant shall, at the same time as he
gives notice to the Secretary of State under paragraph (1), send to the
relevant authority a copy of the appeal form and a copy of any
supporting documents.
Preliminary information
8. The
relevant authority shall, on receipt of a notice of appeal under
regulation 7(2), forthwith inform the Secretary of State and the
appellant of the name and address of every person, other than the
appellant, who is a complainant or an owner or occupier of the land
where the high hedge is situated.
Steps to be taken by Secretary of State
9.
- (1) The Secretary of State shall, as soon as practicable
after receipt of the preliminary information under regulation 8 -
(a)
advise the parties of -
(i)
the reference number allocated to the appeal; and
(ii) the address to which written communications to the Secretary of
State about the appeal are to be sent;
(b)
send to every person, other than the appellant, who is a complainant
or an owner or occupier of the land where the high hedge is situated a
copy of the appeal form and supporting documents; and
(c) supply to the relevant authority a questionnaire.
Questionnaire
10.
- (1) The relevant authority shall, within such period as the
Secretary of State may specify in writing, being not less than 21 days
from the date on which the questionnaire is supplied, submit to him and
copy to each of the other parties a completed questionnaire.
(2) The questionnaire shall state the date on
which it is submitted to the Secretary of State.
Further Information
11.
The Secretary of State or the appointed person (as the case may be) may
in writing require the parties to provide such further information
relevant to the appeal as he may specify, and such information shall be
provided -
(a)
in writing; and
(b) within such period as the Secretary of State or the appointed
person may specify.
Decision
12.
Where under regulation 11 information is required to be submitted within
a specified period, the Secretary of State or the appointed person (as
the case may be) may proceed to a decision on an appeal taking into
account, as regards information of that description, only such
information as has been submitted within the specified period.
Notification of reasons for decision
13.
When the Secretary of State or the appointed person (as the case may be)
complies with section 73(4) of the Act (notification of the decision on
an appeal), he shall in writing notify the parties of the reasons for
his decision.
Effect of decision
14.
The decision of the Secretary of State or the appointed person (as the
case may be) shall be binding on the appellant and every other person
who is a complainant or an owner or occupier of the land where the high
hedge is situated.
Signed by authority of the First Secretary of State
Phil Hope
Parliamentary Under Secretary of State Office of the Deputy Prime
Minister
14th March 2005
EXPLANATORY
NOTE
(This note is not part of the Regulations)
Part 8 of the Anti-social Behaviour Act 2003 ("the Act") gives
local authorities power to deal with complaints about high hedges which
are having an adverse effect on a neighbour's enjoyment of his or her
domestic property.
A complaint may be made by the owner or occupier of a domestic property
("the complainant") on the grounds that his or her reasonable
enjoyment of the property is being adversely affected by the height of
the hedge situated on land owned or occupied by another person. A
complaint must be made to the local authority in whose area the land on
which the hedge is situated lies and the complaint must be accompanied
by such fee, if any, as is determined by the local authority.
Section 71 of the Act sets out the rights of appeal against a local
authority's decisions under section 68 (procedure for dealing with
complaints) and section 70 (withdrawal, waiver or relaxation of remedial
notices) of the Act and against any remedial notices issued by the local
authority under section 69. Any appeals in relation to hedges in England
must be made to the Secretary of State. The Secretary of State may
appoint under section 72 a person to hear and determine the appeal on
his behalf. This appointment may also be revoked under regulation 6.
These Regulations deal with the procedure for appeals under section 71
of the Act. Regulation 3 sets out grounds of appeal against the issue of
a remedial notice. Regulation 4 sets out the grounds of appeal against
the withdrawal, waiver or relaxation of a remedial notice. Regulation 5
sets out the grounds of appeal against decisions by the local authority
under section 68(3) of the Act that are unfavourable to the complainant.
Regulations 7 to 11 set out the procedure for making an appeal and for
the conduct of the appeal. Regulation 12 allows the Secretary of State
or, where a person has been appointed to hear and determine the appeal,
the appointed person, to ignore any further information which has been
supplied to him under regulation 11 and is out of time where a time
limit has been specified. Regulation 13 requires reasons to be given for
decisions on appeals. Regulation 14 provides for a decision on an appeal
under section 71 of the Act to be binding on the appellant and every
other person who is a complainant or an owner or occupier of the land
where the high hedge is situated.
A regulatory impact assessment of the effect that this instrument will
have on the costs of business is available on the internet at
www.odpm.gov.uk. Copies can be obtained by post from the Office of the
Deputy Prime Minister, 3/C5, Eland House, Bressenden Place, London SW1E
5DU, or by phoning 0207 944 2847.
Notes:
[1] 2003 c.38. In relation to appeals relating to
hedges situated in England, the reference in section 72(1) to the appeal
authority, is, by virtue of section 71(7)(a), a reference to the
Secretary of State.back
[2]
1995 c.25back
[3]
"relevant date" is defined in section 71(5) of the Act.back
Typical
nuisance Leylandii - 30ft high
Nuisance
hedge neighbour
CLARE HINCHLIFFE
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