The High Hedges (Jersey) Law 2008 provides a comparatively cheap and accessible remedy for those whose enjoyment of their homes can be seriously compromised by tall evergreens such as leylandii growing on neighbouring property. A complaint is made to the Minister for Planning and Environment, and can issue a remedial notice on the owner and occupier of the offending high hedge.
A complaint made under the 2008 Law must allege that the reasonable use of the complainant's property is being (or, if occupied, would be) adversely affected by the height of a high hedge situated on land owned or occupied by another person. In making his decision on the complaint, the Minister must perform a balancing exercise, taking into account every relevant consideration, including:
"(a) whether the hedge existed at the time the complainant acquired an interest in the domestic or residential property specified in the complaint and, if it did, the height of the hedge at that time; and
(b) any extent to which the hedge –
(i) adds to the privacy and enjoyment of the neighbouring land, or
(ii) contributes to the amenity of the neighbourhood."
Having done so, the Minister "must consider the height to which the hedge could be reduced that would still afford reasonable protection to the interests of the occupier of the neighbouring land."
The recent case of Brimacombe v. Minister for Planning and Environment provides a useful illustration of this balancing exercise as well as clarifying or exploring some important legal points.
In the Brimacombe case, the complainant was a Mrs Lees, whose property in rural St Martin was overshadowed by a row of very tall Holm oaks on the other side of the road. The trees had been there when she bought her property in 1980 but they had grown significantly since then. The States Arboricultural Officer indicated that growth of between 6 and 12 inches per annum was normal, which would mean a growth of between 15 and 30 feet over a 30 year period.
Following refusal by the owners of the trees, Mr and Mrs Brimacombe, to reduce their height, Mrs Lees made a formal complaint to the Minister. After a public hearing and consideration of various reports, the Minister issued a remedial notice requiring as an initial step the reduction in height of the trees to 7 metres above ground level and thereafter their maintenance at a height not exceeding 8 metres above ground level. The trees' owners appealed to the Royal Court which raised several issues:
- The court acknowledged that there was uncertainty as to the court's function on appeal: was it to apply the same approach as on an appeal under the Planning Law, that is to say only interfering with the Minister's decision if it was plainly unreasonable, or was the court simply to decide the issue afresh? Without definitively ruling on the position, the court adopted the latter approach but added that "respect must obviously be paid to the careful balancing exercise undertaken by the Minister, and to his experience and knowledge".
- The court gave short shrift to the contention that because the properties of the appellants and Mrs Lees were divided by a public road, the trees were not growing on "neighbouring land".
- The appellants submitted that the Holm oak trees were not a "high hedge" and that the 2008 Law was not intended to be used in this type of situation. However, the court referred to the statutory definition of "high hedge", that is to say:
- "so much of a barrier to light as:
(a) Is formed wholly or predominantly by a line of 2 or more evergreens; and
(b) Rises to a height of more than 2 metres above ground level."
On this basis, it was clear to the court that a row of evergreen trees such as Holm oaks, although not a "hedge" in common parlance, fell within the ambit of the 2008 Law. The fact that adjacent to the Holm oaks were small deciduous trees did not affect the position.
- The court expressed the view that that some form of compromise involving the complete removal of some (perhaps not all) of the offending Holm oaks would have resulted in a more satisfactory aesthetic solution than would result from the implementation of the remedial notice which had been issued. But in the absence of agreement on the part of the tree owners, this could not be achieved since the 2008 Law prohibits the Minister from requiring a hedge to be removed or reduced to a height of less than 2 metres.
"We doubt," said the court "that such a limit to the Minister's power to issue a remedial notice serves any useful purpose, but that is what the legislature has decreed."
In examining the balancing exercise required by the 2008 Law, the court considered the potential effect on wildlife of the Minister's remedial notice being implemented. Having heard expert evidence in relation to the potential effect on both red squirrels and bats, it concluded that any such effect would be likely to be minor and of short duration.
In relation to potential damage to the environment, the court was not able to be quite so sanguine. From an aesthetic perspective, the court acknowledged that an adverse effect was likely, at least temporarily, and indeed that the requirement to keep the trees no higher than 8 metres above ground level would lead on an ongoing basis to "an unusual arboreal appearance in a country lane". Nevertheless, these factors were outweighed in the court's mind by the prejudice to Mrs Lees, the court referring graphically to "the dark and brooding presence of the Holm oaks which deprive her of light and sun to an unreasonable degree". Accordingly, the court confirmed the Minister's remedial order.
The 2008 Law performs an important role in providing for a resolution of such disputes where a consensual outcome cannot be achieved.
This article was originally published in Business Brief, Issue 273 - September 2011.
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