High Hedges legislation and Overhang

[Nimby]

Is there anyone that has dealt with a HH case where overhang is to be considered? I am struggling to understand how to deal with Overhang when looking at the calculation based on the information in the ODPM's document 'Hedge height and light loss'.

 

I am looking specifically at a hedge that's 16m tall and the overhang is very high up! I am aware that it needs to be considered as part of the Bill but find it quite confusing.

 

TIA.

[daltontrees]

There are 2 aspects to this. Firstly the effect an overhang is having on light. This is hard to calculate but it can be done. Second is whether HH notices should deal with overhangs at all. That's a difficult topic, I have had good and bad experience of this.

 

When you say you are 'aware that it needs to be considered', what do you mean?

 

And you might as well call it the Act rather than the Bill. It hasn't been a Bill for 18 years!

Edited December 20, 2021 by daltontrees

[Nimby]

Firstly, thanks for the reply tis appreciated. 

 

I was struggling with a measuring point from the hedge (and a pine tree within) and the branches that extend out towards the property. I was in a mindset that the measuring started from the trunk but now know that it's from the densest part of the hedge? is what I gather anyway. Or is it from the point of the nearest branch towards the windows? 

 

Also, how does the overhang get pruned and who by? 

 

The Act, (thanks) or guidance in  'High Hedges Complaints: Prevention and Cure' states:

 

4.36 Problems associated with the width of the hedge, where it overhangs and intrudes on the complainant’s property, will not normally be considered. The exception might be where the height of the hedge is a contributory factor. For example, a hedge might be so high that the complainant could not reasonably be expected to trim overhanging branches, and so cannot alleviate the problems it is causing.

 

I have a situation with a 16m hedge that has been regularly trimmed upto 2m and the rest overhangs right into the garden and near the house.

 

Hope that makes sense, because it doesn't to me! 😐

 

 

[daltontrees]

Overhangs are already covered at common law, with rights of self-abatement or seeking a court order to have branches cut back to the boundary. Personally I don't think the Act is intended to deal only with overhangs but it is known for Notices to deal with overhangs as an add-on to the main business of reducing height. There is a potential issue for Notices that require overhangs to be removed since this would require access to the complainant's land. Although the complainant wold presumably not mind, it is  a legal can of worms to oblige the hedge owner to secure rights of access, and gives them a way to wriggle out of the Notice obligations.

 

It follows that the measurement of a hedge for light calculations should always be at the boundary line, since no Notice can require cutting back beyond that point. Forget where the stems are, they are not the light blockage. The only exception is where the hedge is set back from the boundary. This affects the calculation using the HHLL method, but the complexitioes of that are too much to try and explain.

 

So regardless of the shape of the hedge, imagine it shaved back vertically to the boundary line and take the calcualatiosn and measurements from there.  

[Khriss]

And oddly a question posed by the LTOA recently 🤔  anyway, cannot think of any example where it would help, horrible hedges are horrible hedges. K

[Nimby]

Interestingly I had a chat with someone who has researched numerous HH appeals and they said this "A hedge is not its trunk, it is its thickest point, so rather like looking at a Xmas Tree you can consider the fattest part of that tree is its bottom part, that becomes the thickest part of any hedge you are looking at.  E.g.  If you had a hedge where it was planted 2M away from the boundary of the complainant, you measure to the thickest part of the overhang of that hedge (often this can be the complainants boundary)."

 

 

 

[daltontrees]

20 minutes ago, Nimby said:

Interestingly I had a chat with someone who has researched numerous HH appeals and they said this "A hedge is not its trunk, it is its thickest point, so rather like looking at a Xmas Tree you can consider the fattest part of that tree is its bottom part, that becomes the thickest part of any hedge you are looking at.  E.g.  If you had a hedge where it was planted 2M away from the boundary of the complainant, you measure to the thickest part of the overhang of that hedge (often this can be the complainants boundary)."

 

 

 

Well yes and no, it depends if you are proposing to use the resultant dimensions in the Hedge Height and Light Loss calculation. If so, the calculation cannot be used for any part of the hedge that crosses the boundary, even if the Notice says it is to be cut back to the boundary. But more importantly the light blockage is defined by the top edge of the hedge (as cut) and so using the bottom width of a hedge that tapers back with height would result in unnecessary height reduction.

[Jon Heuch]

On 21/12/2021 at 18:58, daltontrees said:

It follows that the measurement of a hedge for light calculations should always be at the boundary line, since no Notice can require cutting back beyond that point.

I'm not sure I agree with that; the hedge that is causing the infringement of the Act (s65 "...alleges that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person.") doesn't have to be all above the hedge owner's land - it can overhang. The key issue is whether the overhang contributes to the "height" (simple trignometry) i.e. it makes it look taller than it actually is; if the overhang is halfway down to the hedge then it is unlikely to, but if at the top it probably will.

s69 remedial notices separates "the initial action that must be taken in relation to that hedge before the end of the compliance period" from "any preventative action that they consider must be taken in relation to that hedge at times following the end of that period while the hedge remains on the land". 

I can't see that the primary law limits the remedial action to be a reduction in height (alone) but since the law focuses on height the focus clearly has to be on height reduction. A remedial notice that included removal/reduction in length of lower branches that did not contribute to the perceived height could be challenged. However, if access to the hedge is an issue I see no reason why the preventative action should not include an instruction to undertake work from the hedge owner's land alone......it might be stretching matters a bit but if it can be argued that "reasonable enjoyment" is significantly affected by a difficult hedge owner and their actions or inactions (or both). It will depend on the evidence and history. 

The 2005 Regulations covering appeal procedures seem to confirm the above.

[daltontrees]

Jon I fear you have missed my point. The Hedge Height and Light Loss calculation was based by BRE on light loss at the vertical plane of the hedge face. The calculation cannot be used competently for overhangs, regardless of whether overhangs can or cannot be addressed by Notices. To force the calculator to deal with overhangs one would need to manually calculate the height i.e. not use the calculator. The reason it doesn't work is that the functions in excel spreadsheet make an assumption that the hedge top is up to 1 metre back from the boundary anyway.

It is possible to imagine the top opf a hedge curling over the complainant's garden like a breaking wave, but if you artificially force the formula you will get the wrong answer. That's not a legal argument or a moral one, that's an arithmetic fact. Just one of several ways that the HHLL approach is such an oversimplification that it produces bewildering wrong answers in anywhere other than terraced suburbia in the Netherlands. Doesn't stop people blindly following it as if it has been somehow sprinkled in fairy dust.

Edited January 3, 2022 by daltontrees