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High Hedge Act - unusual case needs advice

Discussion in 'Trees' started by Robert Smith, Apr 24, 2018.

  1. Robert Smith

    Robert Smith Apprentice Gardener

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    Hi All,

    First post here so I'm hoping this is the right section. I'm after some advice on the High Hedge Act on behalf of my neighbour. I've read the legislation and understand in broad terms what the implications are but my neighbour has quite an unusual situation which isn't clear-cut as far as the legislation is concerned.

    Background to the story: both myself and my neighbour live in the end houses of a cul-de-sac and behind our gardens was a scrappy bit of waste ground about 90 metres long by 10 metres wide (so about 900 square metres in plan area altogether). Beyond this is a single-track road then some more houses. This scrappy bit of land had remained undeveloped since before anyone can remember and it's the kind of land that you'd never think anyone would really want to build on (as it's so small with difficult access via single track road).

    My neighbour's house was actually owned by her mum originally and she planted some conifer-type trees on the boundary between her back garden and the scrappy bit of land about 70 years ago. She then passed the house to her daughter, who's now in her late 60's. The trees have now got to about 10-12m in height and provide a good privacy screen. So yes the trees are tall but previously they didn't bother anyone. There was no loss of view, loss of sunlight etc suffered by anyone as they only affected aforementioned bit of undeveloped land.

    Fast forward to 2015 and a developer bought the scrappy bit of land and proposed to build 8 three-storey town houses on it. Despite a lot of local objection and concerns within the Council Highways dept. about road safety, plot size etc) the development got planning anyway and went ahead. So there are now eight 3-bed three-storey town houses on a plot of land about 900 square metres in size.

    Because the site is so small they had to angle the houses to make them fit (site is only 10m wide) and have also basically rammed the houses right up against my neighbour's boundary. They have already cut back her conifer trees width-wise and they were overhanging the site somewhat. Unfortunately for the people now renting the houses (they are rented not sold) their living room / lounge was built at the back of the house and is basically right up against the boundary / tree line.

    They have complained to the developer (who is renting the houses to them) and the developer is now taking my neighbour to court and trying to force her to chop the trees down to 2m in height using the High Hedge Act. She has had to hire her own solicitor and also a tree specialist who has said the trees are now so tall and well-established that cutting them back significantly would likely kill them. Also the task to chop them down is large so would likely cost approx. £3k, which she would have to pay.

    She also she got an estate agent to re-value the house accounting for the total lack of privacy she would suffer - basically the view is currently of a line of mature trees but if removed it would be of a row of town houses that would directly overlook her garden and house. The estate agent estimated a loss of value from the house in the region of £15-20k because of this.

    She has discussed her concerns with the local Council but they have stated that as far as the High Hedge Act is concerned, the preceding conditions of the site do not matter. That basically, if you have an established row of trees that have not caused anyone any concern for 50+ years, then someone decides to build a house up against the tree, they are within their right to make you remove it if it blocks their light.

    I also understand that the Act is there to preserve an existing view. However, there was no pre-existing view since the houses are new, and if the trees are removed the view would consist of my neighbours garden and her house! So I don't see how the "view" argument could be used.

    The whole situation seems completely ridiculous to me - surely there must be some accounting of the previous conditions? The developer knew full-well this would be a problem as my neighbour wrote them, objected via the Planning Portal, got her own tree survey done which highlighted the issues etc. It doesn't seem right for the developer to be able to ride rough-shod over her like this and basically steal approx. £20k from her for their own benefit.

    I was hoping someone may have experienced or know about a similar situation, in that the REASONS for a lack of light are taken into account rather than just that there IS a lack of light. As far as I can tell the developer engineered a situation in which the current tenants have a problem due to the developers bad design and greed (cramming as many houses into a tiny plot of land as possible) but the downside is borne by other people (my neighbour who currently faces losses of £20k+ and also the tenants who have to live in these tiny houses with no light).

    I'd also like to know the Developer is within their right to bring a complaint against my neighbour ON BEHALF OF their tenants. My understanding of the Act was that the occupiers had to do it, and that each complaint had to be made individually (there are 4 new houses that are affected).

    Thanks for your patience and any advice!

    tl;dr: developer bought small parcel of land behind my neighbour, built houses right into her tree line and is now using the High Hedge Act to make her cut them down. She faces financial loss of £20k+. Can High Hedge Act be used this way?
     
    Last edited: Apr 26, 2018
  2. Scrungee

    Scrungee Well known for it

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    Although that initially sounds unreasonable, if it was otherwise it would enable householders to block (pun intended) development on neighbouring land by planting high hedges in advance.

    But what would be interesting is if the planners permitted 3 storey dwellings close to a neighbouring property and disregarded potential overlooking and loss of privacy because of that vulnerable tall hedge.

    If so there might be worth checking if there's potential for complaint to be made to The Local Government Ombudsman, seeking reimbursement for the cost of felling, new fencing, loss of privacy, etc.

    If there is a valid case for such a claim, it might influence any discretion they (I assume it's the same Local Authority who granted Planning Permission?) have with the High Hedges case.
     
    • Agree Agree x 2
      Last edited: Apr 24, 2018
    • clanless

      clanless Super Gardener

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      I agree with Scrungee's point - new builds cannot (should not?) overlook existing properties.

      I'm aware of a situation where planning permission was granted but on the condition that windows that overlook neighbouring properties used frosted glass.

      A couple of houses are going up on a plot of land next to my friends property - there are no windows in the wall which would look directly into his back garden.

      I wouldn't spend £20k on defending a high hedge to the boundary - pleached trees for example would provide privacy and look attractive at the same time - your neighbour could purchase mature specimens and have them planted such that they do not block out light for the new build but provide the necessary privacy from prying eyes.
       
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      • Robert Smith

        Robert Smith Apprentice Gardener

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        Thanks for reading my post and the replies. I'm not sure about the "loss of privacy" route, we have already gone down this road with the Planning department. There are 8 new houses altogether, 4 bordering my neighbours property and 4 bordering mine. The closest to mine is within 8 metres and looks directly into my downstairs rooms. I can literally stand in my kitchen and watch my new neighbours TV in their lounge, if I wanted to. Where my garden is concerned, I had almost complete privacy before but now there isn't a single place I could stand in the garden where I'm not overlooked. The planning process was a complete farce and the development breaches countless of the Council's own planning guidelines but they pushed it through anyway. They basically claimed I was already overlooked anyway so it didn't really matter (a total lie). So far I have spent about £5k having semi-mature trees planted in my garden to mitigate the loss of privacy.

        I think my neighbour is resigned to the fact that she will have to reduce the hedge to some extent. I think she is looking for ways to avoid the huge financial loss this implies, and also not have the hedge reduced to much that it kills it. I have been reading around and it seems no Council can force a reduction in hedge height that would endanger the lives of the trees. So a reduction of more than one third seems to be a rule of thumb generally used? This would mean a reduction of from 12m to about 8m

        Scrungee I take your point that in order to stop development people would just simply plant trees everywhere and claim protection because "they were their first". I guess this would almost certainly be mis-used to prevent new developments going ahead. However we are not against the fact that *something* was built on the site, and tbh I have sympathy for the people who live there given the houses were so badly designed. Our issue is with the developer who had full control over the design of the houses and, despite knowing this would be an issue, chose to maximise profit (no. houses built) over everything else, and to design the layout of the house such that the habitable rooms are all north-facing, shaded by the off-set house next to them, and built right into my neighbours hedge. The current situation was entirely predictable and could have been largely avoided had the Developer cared enough about it!
         
        Last edited: Apr 24, 2018
      • Marley Farley

        Marley Farley Affable Admin! Staff Member

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        A difficult one. They have done new builds around here that are far to close and overlook each other now instead of fields here in our village. It depends a whole lot on the attitude of your local authority planners. Ours don’t care much as they got their sums wrong on how many to build in this area and are approving houses in ridiculous places left right and centre, so do know how they build like that. Luckily I am not affected like that..
        I agree with Scrungee and clanless, @Robert Smith also I would make an appointment at your local CAB (Citizens Advice ) They are very very knowledgeable on the law and will also help get a case together, or see if any of your local solicitors do a free short consultation for pensioners.. I hope that helps.. :SUNsmile:
         
      • Marley Farley

        Marley Farley Affable Admin! Staff Member

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        Have you tried putting tree preservation orders on them @Robert Smith ? Your local council will have a tree dept.. Get one of their officers out to see them.. Worth a try.. :thumbsup:
         
      • martin-f

        martin-f Plant Hardiness Zone 8b

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        Put some bat boxes on them and hope they take up home.
         
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        • pete

          pete Growing a bit of this and a bit of that....

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          Cant help regarding the problem @Robert Smith, not something I know much about.

          Would like to say though, this kind of thing really annoys me.
          Much as I hate to see countryside built on this idea of cramming unsuitable houses in small spaces next to existing homes is ridiculous, it provides poor quality housing and upsets existing house owners.

          There are acres and acres of farmland out there, loads of farmers wanting to be millionaires, the new town/villages is the only way to go in my view.

          At the point when we dont have enough land to grow food, maybe those who make the decisions will see the error of their ways.

          Anyone who states that building millions of houses is going to bring the price down has a vested interest, and out to make money off of others backs.

          Any government that said they wanted to, and actually did, lower house prices would not last long.
          Rant over.:smile:
           
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          • WeeTam

            WeeTam Total Gardener

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            When the trees were first cut by th e developer were the branches offered back to you or were they just cut and removed? Failure to ask if you want your branches back is illegal. Maybe worth making a police complaint for theft/vadalism. This may weaken legal strength against you as theyve commited an offence by removing the branches without offering them back to you.

            Be warned the council and developer will have deep pockets and the only winners will be the lawyers.

            It might be worth saying to the developer that if they want the trees taken down they can pay for removaal including stumps and to forget about going to court.

            Once this has been done plant fresh row of trees in front of a new high fence with trellis on top with rambling plants covering it.

            Its a disgrace that councils and developers are allowed to ride roughshod over the general publoic but thats Britain today.

            Good luck
             
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            • Scrungee

              Scrungee Well known for it

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              22 Yards (as in cricket) is the normally accepted minimum distance from neighbour's (habitable rooms) windows for overlooking purposes, 8 metres = 8.75 yards.

              There's normally also something in planning policies about something like 'hitherto secluded areas' for gardens, but if they were already overlooked by existing properties this would not be applicable.
               
            • martin-f

              martin-f Plant Hardiness Zone 8b

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              Whats so funny :scratch: :biggrin:, its the only option he has, he will never win and cost him thousands trying to do so.
              Bats and the Law - Bat Conservation Trust
              Bats and the Law
              In Britain all bat species and their roosts are legally protected, by both domestic and international legislation.

              This means you will be committing a criminal offence if you:
              1. Deliberately capture, injure or kill a bat
              2. Intentionally or recklessly disturb a bat in its roost or deliberately disturb a group of bats
              3. Damage or destroy a bat roosting place (even if bats are not occupying the roost at the time)
              4. Possess or advertise/sell/exchange a bat (dead or alive) or any part of a bat
              5. Intentionally or recklessly obstruct access to a bat roost
               
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              • Loofah

                Loofah Well used member

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                It's a very simple solution! I like that a lot. There's a football ground near me and they wanted to go up a league and there are apparently requirements for grounds improvement for them to do so (outside of pitch performance); one of these is floodlights. The council said no due to bats in nearby trees and that was the end of that.
                The same council permitted a development that now directly overlooks one of the local schools and their swimming pool. I don't like my council...
                 
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                • Mike Allen

                  Mike Allen Gardener

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                  Basically from my knowledge of common law, I admit might be a bit rusty now.

                  1. The homes are rented. Therefore any complaints, problems etc should be addressed to the owners of the property's.

                  2. I should think that. If this situation eventually arrived at court. The property owner migh find himself/themselves facing a hefty legal cost. From where I'm sitting it seems that. Joe Bloggs spotted this plot of land, then castles in the sky appeared. Events advanced rapidly and hence so much was overlooked. Straight away the conifer hedge should have been spotted. Architects are usually hot to spot the dangers of conifers and houses. To be honest I don't think you have anything to worry about, as long as you do your best to prevent your trees overhanging etc.

                  3. I take it you have house/contents or whatever insurance. Take look at your policy. Most insurance policies have a section. Legal assistance. Use this, contact the given number. You will be put in touch with the legal rep. You can request a full print out of the advice. Hope this helps.
                   
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                  • kazzawazza

                    kazzawazza Total Gardener

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                    Legal Protection cover is usually a bolt on to your house insurance - we have it. It covers things like disputes involving noisy neighbours, boundary disputes, or damage to the property where no-one has admitted liability etc. In my opinion (with my old Insurance Underwriter hat on) it’s cover worth having for just a few quid as you never know what is going to happen further down the line.

                    Only last week I went into my local Sainsbury’s and was talking to a lady on the checkout, she was telling me of a situation similar to this one funny enough. She had lived in her house over 25 years. A builder bought unused land at the back of her garden. Houses were built too close to the boundary. The land slopes down hill to her garden. As a result, each time it rains, it washes large amounts of soil from the backs of the gardens into her garden. She has constantly got large amounts of sludge, and large muddy puddles of water at the bottom of her garden. She has spoken to the local council about it and the builders, but they aren’t interested. Shes now going to try her local Councillor. This is a single parent with no spare cash whatsoever, her son is in hospital with organ failure and she has no Legal Protection cover.
                     
                    Last edited: Apr 26, 2018
                  • Bfm

                    Bfm Apprentice Gardener

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                    Thinkng outloud (I love the bat idea btw - genuis). Could you leave the tree that affords the most amount of privacy at its current height and take the rest down to 6.5 ft? My understanding is that the act only applies to a row of two or more evergreen or semi evergreen trees? Some smart planting of deciduous trees could work in place of the Lylandi (choose something that doesn't loose much leaf in winter). At least you'd have privacy during the summer months when you'd make the most of the garden.

                    Careful arrangement of garden structures and or shrubs back from the borders amd closer to your home could work if the space permits
                     
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