Agenda item

            The Committee considered the undernoted report and draft consultation response:

 

“1.       Relevant Background Information

 

1.1       In March 2010, the council responded to the Department of the Environment (DoENI) consultation on the draft High Hedges Bill - which became the High Hedges Act (Northern Ireland) 2011 (the Act) in May 2011.  Following on from this, in September 2011 the council responded to a DoENI consultation on the associated (Draft) High Hedges (Fee) Regulations (Northern Ireland) 2011 and the (Draft) High Hedges (Fee Transfer) Regulations (Northern Ireland) 2011 (the Regulations), as approved by this Committee at its September 2011 meeting.

 

1.2       In summary, the Act will provide a means of redress for people who are suffering because of a high hedge (types of hedges that are covered by the legislation are specified) 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.  The regulations will allow councils to charge a fee for complaints, and to transfer this charge to ‘hedge owners’ where hedges are found to be a problem.

 

2.         Key Issues

 

2.1       DoENI is currently undertaking further consultation on the High Hedges Act (Northern Ireland) 2011- Draft Guidance, to which responses are required by the deadline of 11 November 2011.  The consultation seeks views on five draft guidance documents to support the High Hedges Act (Northern Ireland) 2011, specifically:

 

·        Draft Guidance for Councils;

·        Technical Guidance;

·        Draft Guidance for Complainants;

·        Draft Guidance for ‘Hedge Owners’; and

·        Draft Guide to Appeals.

 

2.2       The consultation documents are available through the Consultations page of the DoENI website at http://www.doeni.gov.uk/index/information/foi/recent-releases/publications-details.htm?docid=8356 (these are too large to provide with this report).

 

2.3       A draft response has been prepared though consultation with relevant officers across the council including staff from the Public Health and Regulatory Services Division in Health and Environmental Services (see Appendix). 

 

2.4       There are staff resource requirements to implement the legislation.  These are dealt with in the section below.

 

3.         Resource Implications

 

3.1       Financial

 

            As detailed in the report to Committee in September 2011, the DoENI recommends that the charge levied be in the region of £320 to £350 per case.  At present it is anticipated that we would be required to deal with a figure in the region of 200 cases per year, generating potential revenue of between £64,000 and £70,000.  However the Department does not currently have the resources to deal with this anticipated caseload. Therefore it is estimated that additional staff will be required.

 

Revenue generated:                       £64,000              £70,000

Staff cost:                                       £55,000              £55,000

Net cost saving:                             (£9,000)              (£15,000)

 

3.2       Human Resources

 

            To effectively manage the scheme it is anticipated that 2 additional staff should be recruited; one administrative and one technical for a range of duties which will include:

 

·        dealing with daily queries/requests and assessing if the complaint falls within the scope of the High Hedges Act;

·        providing advice and information packs;

·        detailed site visits which will enable the gathering and assessment of evidence in each individual case;

·        issuing various letters to complainants and hedge owners;

·        enforcement;

·        monitoring ‘Remedial Notices’;

·        dealing with appeals; and

·        updating the High Hedges database on a daily basis

 

3.3       These posts are not currently in the establishment for the Department. The indicative grade at this stage is scale 4 for the administrative post and S01 for the technical post with a combined cost of £55,000 per year, to include NIC and superannuation.  Given that the level of demand is not yet known, it is envisaged that these posts would be recruited as fixed term in the first instance.  A review would then take place at an agreed future date with a view to establish whether or not a business case can be made for permanency.

 

            Asset and Other Implications

 

            None at this stage.

 

4.         Equality and Good Relations Implications

 

4.1       In the consultation documents, DoENI states that it undertook an equality impact screening of the draft High Hedges Bill and the High Hedges fee regulations, concluding that “there is no adverse impact for any of the nine categories listed under Section 75”.  From this, DoENI considers that separate screening of the supporting guidance is not necessary.

 

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

 

5.         Recommendations

 

5.1       Members are asked to:

 

(i)               Approve submission of a final consultation response to DoENI, subject to any comments provided, by the deadline of 11 November 2011.  This would be with the proviso that the response is subject to full council approval on 1 December 2011; and

 

(ii)             Approve the creation of 2 posts, one administrative and one technical, to discharge the council’s new responsibilities under the High Hedges Act (Northern Ireland) 2011. These posts will be fixed term in the first instance with the Department presenting a further report at a future date, providing an analysis of demand and cost and the associated staffing implications.

 

6.         Decision Tracking

           

            Report to Committee By the Woodland and Recreation Manager in January 2012, providing an update on progress towards the draft regulations coming into operation. 

 

Appendix

 

Consultation Issues

 

Q1 – Do you have any comments on the draft High Hedges Act (Northern Ireland) 2011 – Guidance for Councils?

 

There are concerns surrounding the timescale 2.17 (page 29) for Councils to arrive at a decision. There is an expectation that it could take at least 12 weeks as well as the indeterminate length of time it may take for the hedge owner to take action, for example; a complaint may be made in December and a decision may not be through until March which would run into the beginning of the bird nesting season.

 

Where the Council is party to a complaint concerning its own evergreen/semi evergreen hedges within its properties, would it be fair to charge a generic fee in this instance, considering the Council should be maintaining to a degree, boundary vegetation?

 

Although this guidance is made for Councils it is likely to be available to the public and the reference in 2.19 (page 30) may be unhelpful in relation to refund if a complaint is withdrawn. Councils should be able to decide their own policy on refunds.

 

Compliance period in Section 3.6 (page 35) is very clear that there is only one enforcement date i.e. compliance date of notice. In cases where very high hedges must be lowered by stages, could it not be timetabled into what steps must be carried out annually with an enforceable date attached at each stage. The alternative to this is that a hedge owner may receive a notice to reduce the hedge to 2 metres from 30 metres and may be given 4 years to complete this in staged reductions. That hedge owner may decide to continue with the 30 metre hedge until just before the enforcement date and then remove the hedge. Some may be aggrieved at seeing no action in that 4 year period.

 

In section 3.7 (page 36) there appears to be a directive that Councils should apply a statutory charge against an outstanding fee applied to the hedge owner. It was our understanding that this charge could be pursued as a civil debt through small claims court.

 

In section 2.4 (page 70) there is a reference to ‘view’ which cannot be a consideration for this legislation.

 

Q2 – Are there any further aspects that need to be covered in the Guidance for Councils?

 

Can the Department issue advice in relation to a situation where a high hedge is complained about and the investigation finds that no remedial work is required in relation to distance to the dwelling? If the complainant in later years extends their house towards the hedge, does this initiate a new complaint and assessment or is there an onus on relevant authorities to assess this e.g. planning, or in some cases no planning permission may be required for a small extension?

 

In the case of a complainant making a complaint about multiple hedge where notices are served on these multiple hedge owners, does the fee transfer onto those that don’t carry out remedial work at the full rate or at the relevant fraction of the full rate? (E.g. three hedge owners receive notice and none do the remedial work, then would the maximum fee be transferred onto each of them or is it one third of the maximum fee onto each of them?)

 

Q3 – Do you have any comments on the High Hedges Act (Northern Ireland) 2011 – Technical Guidance?

 

No comments.

 

Q4 – Do you have any comments on the draft High Hedges Act (Northern Ireland) 2011 – Guidance for Complainants?

 

No comments.

 

Q5 – Do you have any comments on the draft High Hedges Act (Northern Ireland) 2011 – Guidance for ‘Hedge Owners’?

 

No comments.

 

Q6 – Do you have any comments on the draft High Hedges Act (Northern Ireland) 2011 – Guide to Appeals?

 

No comments.

 

Q7 – Are there any other aspects of the High Hedges Act that could benefit from guidance being produced by the Department?

 

No comments.”

 

            After discussion, the Committee adopted the recommendations within the report.