Committee for the Environment Report on the High Hedges Bill (NIA 15/09) Together with the Minutes of Proceedings, Minutes of Evidence and Written Submissions Relating to the Report Ordered by The Committee for the Environment to be printed 16 December 2010 Report: NIA 07/10/11R Committee for the Environment Session 2010/2011 Third Report Membership and Powers The Committee for the Environment is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, section 29 of the Northern Ireland Act 1998 and under Standing Order 48. The Committee has power to: - • Consider and advise on Departmental budgets and annual plans in the context of the overall budget allocation; • Consider relevant secondary legislation and take the Committee stage of primary legislation; • Call for persons and papers; • Initiate inquires and make reports; and • Consider and advise on any matters brought to the Committee by the Minister of the Environment The Committee has 11 members including a Chairperson and Deputy Chairperson and a quorum of 5. The membership of the Committee since 9 May 2007 has been as follows: Mr Cathal Boylan (Chairperson) 9 Mr Thomas Buchanan 7, 8, 13 Mr Trevor Clarke 15 Mr Willie Clarke 14 Mr John Dallat 5 Mr Danny Kinahan 3, 4 Mr Patsy McGlone (Deputy Chairperson) 6, 9, 10, 12 Mr Alastair Ross 1 Mr George Savage 2, 16 Mr Peter Weir Mr Brian Wilson 11 1 On 21 January 2008, Alastair Ross was appointed as a Member and Mr Alex Maskey ceased to be a Member. 2 On 15 September 2008 Mr Roy Beggs replaced Mr Sam Gardiner. 3 On 29 September 2008 Mr David McClarty replaced Mr Billy Armstrong. 4 On 22 June 2009 Mr Danny Kinahan replaced Mr David McClarty. 5 On 29 June 2009 Mr John Dallat replaced Mr Tommy Gallagher. 6 On 3 July 2009 Mrs Dolores Kelly replaced Mr Patsy McGlone as Chairperson. 7 On 14 September 2009 Mr Adrian McQuillan replaced Mr Trevor Clarke. 8 On 1 February 2010 Jonathan Bell replaced Mr Adrian McQuillan. 9 On 12 April 2010 Mr Cathal Boylan was appointed as Chairperson and Mrs Dolores Kelly ceased to be a Member. 10 On 12 April 2010 Mr Dominic Bradley was appointed as Deputy Chairperson. 11 On 13 April 2010 Mr Brian Wilson was appointed as a Member and Mr David Ford ceased to be a Member. 12 On 21 May 2010 Mr Patsy McGlone replaced Mr Dominic Bradley as Deputy Chairperson 13 On 13th September 2010 Mr Thomas Buchanan replaced Mr Jonathan Bell 14 On 13th September 2010 Mr Willie Clarke replaced Mr Daithi McKay 15 On 13th September 2010 Mr Trevor Clarke replaced Mr Ian McCrea 16 On 1 November 2010 Mr George Savage replaced Mr Roy Beggs Table of Contents Report Executive summary Recommendations 6 Introduction 7 Consideration of the Bill by the Committee 8 Key issues 11 Clause by clause consideration of the Bill 20 Appendix 1 Minutes of Proceedings 25 Appendix 2 Minutes of Evidence 43 Appendix 3 Written Submissions 139 Appendix 4 List of Witnesses 175 Appendix 5 Research papers requested by the Committee 179 Appendix 6 Other papers submitted to the Committee 223 Executive Summary Purpose This report sets out the Committee for the Environment's consideration of the High Hedges Bill. Members sought a balanced range of views as part of their deliberations on the High Hedges Bill and requested evidence from interested organisations and individuals as well as from the Department of the Environment. The Committee made four recommendations having identified the following key issues. Key issues - • Delegated powers of the Bill • Extending the Bill beyond domestic properties (Clause 1) • Definition of 'reasonable enjoyment' (Clause 1) • Protecting established forests and woodland and ancient trees (Clause 2) • Assessing a problem hedge (Clause 2) • Scope of the Bill (Clause 2) • Fees for complaints (Clause 3) • Requiring Departmental regulations to set a cap on fees (Clause 3) • Mediation (Clause 3) • Fixed penalties (Clauses 3 and 9) • Hedge removal (Clause 4) • Protecting biodiversity in remedial notices (Clause 4) • Appeals process (Clause 6) • Powers of entry (Clause 8) • Action by council (Clause 11) • Vacant land (General) • Guidance (General) • Training (General) • Hedges owned by local authorities (General) Delegated powers of the Bill The Committee sought advice from the Examiner of Statutory Rules in relation to the delegated powers within the Bill. The Examiner advised that the Bill contained several powers to make subordinate legislation, all of which provided appropriate levels of scrutiny to the Assembly. Extending the Bill beyond domestic properties (Clause 1) The Committee considered the extension of the Bill to properties affected by a high hedge other than those described as 'domestic'. The Committee was advised that the primary focus of the Bill is to resolve disputes between neighbours over the height of an adjacent hedge. The Committee accepted the Department's rationale. Definition of 'reasonable enjoyment' (Clause 1) A problem high hedge is to be assessed in terms of how it affects the complainant's 'reasonable enjoyment' of their domestic property and 'reasonable enjoyment' refers to the enjoyment of a property by a person having access to light. The Department suggested that it would be legally difficult to provide an exhaustive definition that would encompass every situation and that it will be a matter of judgement for the council to strike a balance between the hedge owner, the complainant and the possible detrimental impact on the individual property. The Committee agreed that it should stress the importance of giving councils certainty with regard to interpretation of 'reasonable enjoyment' and recommends that comprehensive technical guidance is issued on commencement of the Bill. Protecting established forests and woodland and ancient trees (Clause 2) Several organisations were concerned about the impact of the Bill on long-established woodland and ancient trees. The Department advised that subsection 4 of Clause 2 exempts areas of 0.2 hectares or more that are forest or woodland which is in line with the Forestry Act (Northern Ireland). Furthermore, ancient trees tend to be single and deciduous and would therefore be excluded from the Bill. The Committee was content with the Department's response. Assessing a problem hedge (Clause 2) Some individuals were keen for the Committee to establish what factors would be taken into account when a problem high hedge was being assessed. In particular there were concerns about the distance of a problem hedge from a complainant's house, the height differences between the affected houses and the distances between trees that form a problem hedge. The Department stressed that the barrier to light will be the determining factor and the Committee was content with this explanation. Scope of the Bill (Clause 2) Several organisations were disappointed that the Bill would not be covering single trees and other problems associated with hedges and trees such as roots, overhanging branches and fallen leaves. Research and Library Service advised the Committee that even though not all councils recorded high hedge/tall tree complaints a significant proportion of complaints received by councils related to single trees rather than hedges. Having ascertained that single ancient or deciduous trees would not be affected the Committee asked the Department to reconsider the inclusion of single evergreen/semi-evergreen trees in the Bill. The Committee considered the Department's response which indicated it was not willing to extend the scope and agreed to a Committee amendment to include single evergreen and semi-evergreen trees within the scope of the Bill. The Committee also agreed that if this Committee amendment is subsequently ruled out of scope of the Bill, to recommend that the Department should recognise the need for legislation to be brought forward promptly to address the detrimental impact on reasonable enjoyment of properties cause by single evergreen or semi-evergreen trees. Fees for complaints (Clause 3) Several councils were concerned that requiring complainants to pay a fee is against local government practice and contradicts the 'polluter pays principle'. In response the Department stated that any fee levied is entirely at the discretion of the council. The response pointed out that the payment of a complaints fee means that the cost does not fall to wider ratepayers who do not derive any benefit from the council's intervention and stressed that it is not an offence to grow a hedge and there is no innocent or guilty party. Complaints fees are also intended to deter frivolous or vexatious complaints. Members remained convinced that it would be most appropriate for councils to be required to refund fees should a complaint be upheld. The Department stressed that the discretionary power contained within the Bill as drafted allows councils to recover their costs and also to have the effect of deterring frivolous or malicious complaints. The fee would be a payment for a service provided to the complainant and not a penalty imposed on any party. The council, if it wished could choose to waive or reduce the level of fee to take account of the circumstances of the complainant. The Bill also makes provision for the fee to be refunded at the discretion of the council. The Committee recognised however that by simply allowing the council to make a refund to a successful complainant without recouping it from the hedge owner would result in the rate payer bearing the burden of the refund. The Committee was not content for this to be the case and agreed to recommend 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. Requiring Departmental regulations to set a cap on fees The Bill includes a power for the Department to limit the level of fees but it indicated to the Committee that it was unlikely to do this unless there was a clear need to do so after the legislation had been operational for some time.