Agenda item

            The Committee considered the undernoted report:

 

“1        Relevant Background Information

 

1.1       In December 2009, the Department of the Environment (DoENI) launched a consultation on the draft High Hedges Bill.  A council response, to which the Parks and Leisure Department contributed, was prepared by Health and Environmental Services, and approved by the Health and Environmental Services Committee at its February 2010 meeting. 

 

1.2       A High Hedges Bill was introduced in the NI Assembly on 26th April 2010 and the Bill received Royal Assent on 3rd May 2011 becoming the High Hedges Act (Northern Ireland) 2011 – to be made operational once subordinate legislation is in place.

 

1.3              The Act will provide a means of redress for people who are suffering because of a high hedge on a neighbour's land acting as a barrier to light, and will provide district councils with certain powers to deal with complaints about high hedges.

 

1.4              DoENI proposes the following subordinate legislation in order to make the High Hedges Act operational: 

 

§                     The (Draft) High Hedges (Fee) Regulations (Northern Ireland) 2011, and

§                     The (Draft) High Hedges (Fee Transfer) Regulations (Northern Ireland) 2011.

 

1.5       The regulations will, in summary:

 

(i)    allow councils discretion to charge a fee for investigating high hedge complaints, and

(ii)   facilitate the transfer of the charge to ‘hedge owners’, meaning that hedge owners will bear the costs of investigation in cases where hedges are found to be a problem and a remedial notice takes effect.

 

2          Key Issues

 

2.1       DoE NI is currently undertaking a public consultation on the proposed subordinate legislation, outlined above.  The consultation documents are provided at Appendix 1.

 

2.2       With regard to the (Draft) High Hedges (Fee) Regulations (Northern Ireland) 2011, the consultation seeks views on the ‘maximum’ complaint fee that councils can charge for dealing with a high hedge complaint.  With regard to the (Draft) High Hedges (Fee Transfer) Regulations (Northern Ireland) 2011, it seeks views on the mechanism of the ‘fee-transfer’ from the complainant to the ‘hedge owner’.  The consultation also seeks views on impact assessments carried out by DoENI with respect to its proposals, in particular a partial Regulatory Impact Assessment.

 

In summary, the consultation asks for responses to four questions:

 

1.                  What should the maximum level of fee be?

2.                  Do you agree that the fee should transfer to the ‘hedge owner’ when remedial notice takes effect?

3.                  What circumstances should the Department prescribe for a refund of the ‘transferred fee’?

4.                  Are there any other comments which you would like to make on the proposals?

 

2.3       Our consultation response will primarily be based on the response given by the Northern Ireland Chief Environmental Health Officers Group and from consultation with colleagues across the Council for approval by Members.

 

3          Resource Implications

 

3.1       Financial

DoENI’s proposals mean that councils would charge complainants a fee (in order to cover the costs of dealing with the complaint, and to deter frivolous or malicious complaints).  DoENI indicates that the amount would be likely to be close to the average currently charged in England and Wales, i.e. £320-£360 however 2 out of 8 Local Authorities we recently consulted with, in England and Wales offered a reduction in fees for people on certain types of means tested benefits, ranging from a 50% reduction to a £60 reduction in fee.

 

3.2       A complainant would have any fee refunded if a remedial notice issued by a council took effect.  At this point, the council may charge a fee to the ‘hedge owner’ to recover the refunded fee.

 

3.3       DoENI indicates that councils will face a cost of administering the fee transfer mechanism, estimated at around £50 per case however DoENI expects that this will be covered by the fee charged to complainants (above). 

 

3.4On average the Parks and Leisure Department receives 3 to 4 complaints concerning nuisance hedges every week from members of the public however based on information received from local authorities in England and Wales, they would process on average only 5 ‘formal’ complaints per year.  That said, a DoENI scoping consultation has estimated that there could be a backlog of 800 high hedge problem cases which will be required to be determined by district councils in the first 2 to 3 years that the legislation is in operation.

 

3.5       In the interim, officers will undertake work to confirm the resource implications of the new regulations.

 

3.6       Human Resources

It is likely that, in order to discharge its new responsibilities, the Department will require additional resources.  It is expected that activities directly associated with the regulations (such as travel, inspection, report writing and administration) will result in an increase in workload.  Prior to the regulations becoming operational, time will be needed to establish the extent of any increase, and how it will be addressed.

 

It is expected that there will be a need to train all officers involved in carrying out duties under the regulations.  In its indicative timetable for delivery of the legislation, DoENI plans to finalise a range of guidance for councils and the public, and undertake training of council officials by mid-March 2012.

 

            Asset and Other Implications

            None at this stage.

 

4          Equality and Good Relations Implications

 

4.1       In the consultation documents, DoENI states that it has undertaken an equality impact screening of the regulations, and has concluded that “there is no adverse impact for any of the nine categories listed under Section 75”. This has also been confirmed internally through consultation.

 

DoENI also considers that its proposals are compatible with the Human Rights Act 1998. 

 

5          Recommendations

 

5.1       Members are asked to:

 

(i)        note the contents of this report; and

(ii)      approve submission of a final consultation response to DoENI, subject to any comments provided, by the deadline of 20 September.  This would be with the proviso that the response is subject to full Council approval

 

HIGH HEDGE FEE LEGISLATION – Consultation Response

 

The Department is unable to consider any views submitted anonymously.  We would therefore be grateful if the following details could be completed.

 

*Name                                     Belfast City Council

 

  ________________________________________________

 

*To enable responses to be analysed please indicate which category you fall into:

 

     

 

      Address:               Belfast City Council

                                    Parks and Leisure Department

                                    Adelaide Exchange

                                    24 – 26 Adelaide Street

                                    Belfast

                                    BT2 8GD

 

Telephone No:          (028) 9032 0202

 

Email   address:         mchaffiea@belfastcity.gov.uk

 

LIST OF CONSULTATION QUESTIONS

 

Q1 –   What should be the maximum level of fee?  Why?

 

Local government is facing a number of new burdens in a time of economic pressure and the principle of full cost recovery for any request for service is seen as desirable.  To maintain simplicity in charging schemes the concept of a maximum fee that would discourage frivolous complaints whilst not discouraging justified complaints would appear reasonable.

 

 A maximum fee of £350 would appear appropriate.  This is calculated on the basis of 12 – 13 hours of staff resource, two statutory charges (@ £25 each + admin) and further administration in the transfer/refund of fees.  The process in Northern Ireland will be more complex than in England and Wales where Wales have set £320 as the maximum fee and fees in England varied widely around an apparent mean.

 

The provision in Section 3(1)(b) that allows councils discretion to waive the fee or determine other fees up to the prescribed maximum is supported.

 

Q2 –   Do you agree that the fee should transfer to the ‘hedge owner’ when the remedial notice takes effect?  Please give your reasons.

 

      The principle that the ‘polluter pays’ has been long adopted as a principle.  The existence of this legislation will provide an incentive to any hedge owner to ensure their hedges do not cause nuisance to their neighbours.  Where that duty is neglected despite the existence of the legislation and despite reasonable attempts by the complainant to resolve the matter by negotiation, it is entirely appropriate that the hedge owner should bear the costs incurred.

 

      There are some reservations about fee transfer in practice.  For the fee to transfer Section 4 (3) has to apply in that the fee is first paid by the complainant, a remedial notice is issued by the council and the remedial notice takes effect after a period of at least 28 days.  However where a notice is issued following investigation by local government, the owner may remove the hedge before the notice takes effect.  In that situation the council will have incurred costs in investigation and issue of the notice, but the costs cannot be passed to the ‘polluter’, leaving the complainant to bear whatever costs are seen as appropriate.  It is recommended that the fee should transfer to the hedge owner upon issue of the notice with appropriate safeguards for refund should appeal be successful.

 

      In cases where a complaint is quickly settled and at minimal cost to the local authority, the discretion to refund all or part of the fee provided under Section 4 (2) (b) would be appropriate.

 

Q3 –   What circumstances should the Department prescribe for a

      refund of the ‘transferred fee’?

 

      Although Section 4 (5) (c) allows for regulations to be made forthe refund of ‘transferred fees’, unless the fee transfer comes into effect (as recommended above) on service of the notice rather than when the notice comes into effect and could therefore be overturned on appeal, there would not appear to be a reason for refund of a transferred fee.

 

Q4 –   Are there any other comments which you would like to make on the proposals contained in this consultation document?

 

      It is noted that a council may waive charges, or charge a complainant a reduced fee in accordance with adopted policy, but may then transfer a fee of an amount up to the prescribed maximum to cover costs.  This may be the correct course of action where the council wishes to take note of complainants’ own circumstances, but is likely to create dissent if the possibility is not made clear to hedge owners.

 

      Outside the scope of the legislation there appears to be merit in instituting informal advisory processes (with appropriate fees as determined by the council) that commence before a formal complaint procedure is initiated.  This may filter out those situations in which no formal action will be possible and thereby eliminate unnecessary administration issues for councils and complainants.

 

      If notice is to be served on, or sent to, every owner and every occupier of the neighbouring land, (section 3.(4).b), that duty cannot be fulfilled unless the council has the ability to require information from an owner or occupier as to the names and addresses of those having an interest in the land.  As an example of necessary powers, GB legislation contains provision for local authorities to serve a Requisition for Information under S.16 Local Government (Miscellaneous Provisions) Act 1976 prior to service of statutory notice in such cases.  This power is not apparently available in Northern Ireland and the absence may frustrate the purposes of a council seeking to enforce the High Hedges Act.

 

      A media awareness campaign to educate owners and landlords, including social landlords such as NIHE and Housing Associations of this new legislation and of obligations there under would appear indicated.

 

      Charges for works carried out in default (S.12) may be recovered as a statutory charge, but there is no specific provision for recovery of transferred fees.  Is it intended that this should be recovered as a civil charge?

 

      A concern for councils in relation to this (and all enforcement) is the limitation in costs awarded to councils in Magistrate Court cases as laid out in Schedule 1 of the Magistrates' Courts  (Costs in Criminal Cases) Rules (Northern  Ireland) 1988 which limit costs to an amount not exceeding £75.  Excess costs can therefore be a major burden for councils and cannot be recovered within the charging regime described in this consultation.

 

      The legislation should make it clear that any fees charged under this section shall constitute a statutory charge. The primary legislation only refers to expenses and the remedial notice itself going on the Statutory Charges register.

 

      It should be an offence not to pay any fees charged under the legislation.”

 

            The Committee approved the foregoing comments as the Council’s response to the consultation document.