Guernsey Property Law is a classic example of the effectiveness of customary law, and it is a very important part of the Island’s legal heritage.
However, due to changing times, the evolving customary law is becoming ever more supported by statute and which is intended to provide clarity and certainty.
The High Hedges (Guernsey) Law 2016 (“the Law”) is expected to come into force on 2nd October this year, and to deal with the mischief (as the name suggests) of high hedges, but what does that actually mean?
In discussing the topic, we at Ferbrache & Farrell thought it might be helpful to set out some likely questions.
What is a high hedge?
For the purposes of the legislation, a high hedge has three characteristics.
First, the hedge is one that is formed wholly or predominantly by one or more evergreens. Second, it rises to a height of more than 2 metres above ground level, and, finally, it forms a barrier to light.
A hedge that is over 2 metres in height, but has gaps in it which “significantly reduce” being a barrier to light is not a high hedge.
We have no guidance yet as to what “significantly reduces” actually means, but it is likely to be a matter of fact and degree determined on a case-by-case basis.
Why is the Law even needed?
The Law is being introduced to deal with scenarios where hedges are allowed to grow to such a height that they represent a legal nuisance, and may potentially adversely affect the privacy and enjoyment of neighbouring land or the amenity of the area.
What is the process of making a complaint?
The draft Law expressly requires parties to take all reasonable steps to resolve matters before taking formal steps.
A complainant will need to obtain a specific form from the Development and Planning Authority (“the DPA”) and complete it, together with the payment of a £350 fee. Details of the prescribed form are awaited.
For the purposes of the legislation, the DPA is the public body that will decide the complaint, with a right of appeal to the Planning Tribunal against a decision made by the DPA.
As one might expect, there are certain time sensitive procedures that must be followed by the DPA in the hearing of the complaint, and every owner and occupier of neighbouring land will be notified of the details. Written representations can be made.
The DPA must act reasonably, proportionately and in a transparent manner, and practically speaking, that means that all interested parties will be notified of the decision, and the right of appeal.
The DPA will not entertain frivolous or vexatious complaints, or those where it cannot be shown that (more likely than not), all genuine efforts have been made to resolve the issue.
What is a high hedge notice?
This is the formal decision by the DPA that the complaint is justified. It sets out a number of pieces of information, but particularly, the remedial steps to be taken, the timeframe for those steps, and the possible consequences of failing to comply.
A high hedge notice cannot require a reduction in hedge height to less than 2 metres, or any remedial steps sooner than 28 days after a copy of the notice has been given to every owner and occupier of neighbouring land.
The DPA is under a legal obligation to maintain a Register of High Hedge Notices, and which can be inspected by members of the public free of charge.
How does the Appeal process work?
An appeal can be made to the Planning Tribunal against the decision of the DPA (just as it can in the context of a planning decision), however the window to appeal is short, and within 28 days of notification. The fee for an appeal is £350.
Principally, the Planning Tribunal can confirm the DPA decision, quash it or in certain cases amend the high hedge notice issued.
A successful appellant will not be able to recover their costs from the DPA, so careful thought will need to be given to the costs of appeal from the outset.
What about enforcing a high hedge notice?
The Law contains wide ranging and very detailed provisions about this. Various authorised persons can enter the land in question, whether that is a representative of the DPA, and/or the Planning Tribunal, or even a warrant holder from the Bailiff. It is important to note that a person failing to comply with a high hedge notice is guilty of a criminal offence.
Although we have touched on only six questions, many more practical ones are sure to present themselves. The legislative draftsman has attempted to introduce as much flexibility as possible in the Law, but the pervasive thread is one of attempted resolution before formal complaint. For its additional statutory support, the customary position of bon voisinage still holds good.