Has anyone heard of:

[10 Bears]

Is there any case law yet?

 

Sorry - regarding which bit? Do you mean prosecutions on HH with a deciduous element?

 

I don't know of any straight away but it I will do a bit of research to see what I can find...

[daltontrees]

A formula for the height of trees in relation to windows ?????

 

A customer of mine has received a letter from next doors solicitor saying that the trees are too large and too close to their windows, and that by law they have to be taken down.

I have not heard of this, and think that they are trying to pull a fast one.

 

As usual helpful or other wise advice is appreciated.

 

There is no such law. As folk have said, there is no suggestion that ancient rights to light would apply to this situation. Even if the trees are encroaching, there is no way for the neighbour to insist that trees and branches have to be taken down by the tree owner. The High hedges legislation would only apply if the trees are evergreen/semi-evergreen. Semi-evergreen doesn't mean deciduous, it means things like privet that are evergreen but can shed leaves in particularly cold winters. Deciduous trees can only be affected by high hedge action if they are a minority part of an otherwise evergreen hedge. No species are 'exempt'.

 

Even if HH applies to the trees, the neighbour can't insist they are taken down, He can and indeed must try and reach agreement with your client about reduction before applying to the Council for a high hedge notice.

 

It's a pretty dodgy solicitor that would suggest that there is a law that says trees have to be taken down. If it were me I would out of curiosity ask for a written confirmation of the relevant law. In the meantime I wouldn't be sweating about it.

 

But if you are to be involved in this, find out exactly what the lawyer said, not what the client thought he said or told you he said. Things can lose accuracy in the telling or perceiving.

 

If you really want to know about a 'formula' for light in relation to windows, it is possible to calculate light loss from trees using a Waldram diagram to derive a change in Vertical Sky Component, then convert this to Average Daylight Factor, then relate this to the percentages set out in BS8206-2 to see if the tree has caused the light to fall below an acceptable threshold. All this is set out in BS8206-2 and BRE's 'Site Layput Plannning for Daylight and Sunlight'. The normal simple rules like the 25 degree rule of thumb cannot be applied to non-opaque barriers to light or to those that are not (effectively) of uniform height and infinitely wide.

 

Unfortunately neither of these publications are available anywhere for free, and a formal assessment is a day's work, requiring among other things access to the inside of the affected house. Guaranteeed to bring on a headache, even when you know what you are doing. I regularly do this type of assessment for ridiculous non-standard high hedge cases in Scotland (where deciduous trees are covered by the Act), and I usually feel the need to lie down afterwards.

[Arctostaphylos uva-ursi]

Interesting stuff Jules. Have you managed to get your head around the BRE and the associated charts? Its been a while since I have had to use it and I know what you mean by needing to lie down after!

Do you fight on both sides depending on the client?

[10 Bears]

Please refer to this document: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/11476/highhedgescomplaints.pdf

 

and see paragraph 4.11 "Beech and hornbeam hedges are excluded. Although they may retain some foliage for most of the year, this is brown and dead".

 

The semi-evergreen comments are in the same section. There is no definition of semi-evergreen, only the advice to refer to a couple of text books at paragraph 4.12 for information. Further to this, 4.13 clarifies that "Whether a particular hedge is mostly evergreen or semi-evergreen is a matter of judgement" - introducing subjectivity. While at 4.14, it states that "some deciduous species" can be brought "within the scope of the definition" - in particular circumstances.

 

It was because of this section that I had a conversation with a solicitor (well, other things really, but this came up) and he gave the advice that due to the elements of interpretation here, there is the potential to consider a deciduous hedge under the law. Of course, this would be for the legals to decide and not us on this forum...

[daltontrees]

Interesting stuff Jules. Have you managed to get your head around the BRE and the associated charts? Its been a while since I have had to use it and I know what you mean by needing to lie down after!

Do you fight on both sides depending on the client?

 

I have acted for both sides, before applications, making applications, mediating, submitting appeals, defending appeals. May also be involved in a judicial review shortly.

 

I am fairly au-fait with the BRE stuff now, but unfortunately it only works well for buldings so I have developed my own charts for trees and hedges. Basically if you have an OS sheet showing the buildings then BRE is fine and quick, but hedges and trees are 3 dimensional and not on OS plans so it is better to use a system that is more point-of-view based. that way all you need is a shighting compass and a clinometer. I developed a photographic technique that is even beter and quicker but because I can't reference it back to BRE and BS8206 I ccan't get Reporters (Inspectors) to buy into it. Councils and Reporters will do anything to avoid having to do the assessments properly.

 

I wish I coud charge the fee that Councils charge and then be allowed to do the assessment as badly or lazily as they do.

[Arctostaphylos uva-ursi]

I think half the trouble is that they cannot get their heads around the proper assessment and are therefore looking for rules of thumb.

Do you find that the shadows cast by trees during the winter get awfully long in the north?

[daltontrees]

Please refer to this document: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/11476/highhedgescomplaints.pdf

 

and see paragraph 4.11 "Beech and hornbeam hedges are excluded. Although they may retain some foliage for most of the year, this is brown and dead".

 

The semi-evergreen comments are in the same section. There is no definition of semi-evergreen, only the advice to refer to a couple of text books at paragraph 4.12 for information. Further to this, 4.13 clarifies that "Whether a particular hedge is mostly evergreen or semi-evergreen is a matter of judgement" - introducing subjectivity. While at 4.14, it states that "some deciduous species" can be brought "within the scope of the definition" - in particular circumstances.

 

It was because of this section that I had a conversation with a solicitor (well, other things really, but this came up) and he gave the advice that due to the elements of interpretation here, there is the potential to consider a deciduous hedge under the law. Of course, this would be for the legals to decide and not us on this forum...

 

I think what 4.11 means is that hedges wholly or entirely of deciduous species that hold dead leaves all winter don't count as evergreen or semi-evergreen. But if a hedge that was predominantly evergreen had some beech or hornbeam in it then these could be cut too as part of the HH notice requirements.

 

Sorry but I can't help being a pedant. So strictly speaking I think it should say "Like all other wholly or mainly deciduous hedges, hornbeam and beech hedges are not covered by the Act even though they may hold their leaves all year (but see 4.14 below)." There are no exempt species, only deciduous extents that exempt the hedge.

 

I don't see that there is scope for subjectivity. Judgement is not subjective, it's a matter of degree, and if the Council is anything other than objective it's decision could be overturned on appeal. Does the deciduous content exceed the evergreen + semi-evergreen content? Y/N Does this, combined with the extent to which semi-evergreen content allows the passage of light, stop it being a barrier to light? Y/N.

[daltontrees]

I think half the trouble is that they cannot get their heads around the proper assessment and are therefore looking for rules of thumb.

Do you find that the shadows cast by trees during the winter get awfully long in the north?

 

Scotland spans 55 degrees to 60 degrees. Compared to London at 51.5 degrees, the shadow from a tree at midday in mid winter in Shetland would be 2.35 times longer than the shadow of the same tree in London. So, yes. Not so bad where I am, the ratio is 1.5.

 

(Note to self because I will lose the scrap of paper I worked this out on, ratio = (Tan 90 - 51.5 - 23.5)/(90 - 60 - 23.5)).

 

Perhaps nature kindly redresses this by making trees more stunted the further north you go. I am not surprised that there hasn't been a high hedge appeal from Shetland yet.

 

So far I have had a begrudging acknowledgement form the Scottish Government that the english HHLL guidance might need to be tweaked for scottish latitudes. But the bureaucrats don't seem care enough to do anything about it. Don't get me started. Again.

[10 Bears]

Now my turn to be pedantic...!

 

I don't disagree with you in interpretation of this, but even your reply starts with 'I think what [it] means is...' so it is apparent that there is a degree of subjectivity in the reading of the regs. I highlighted the 4.11 as an earlier comment said there were no species exclusions, however in fact there are. To apply the letter of the law BE and HB hedges are excluded.

 

Your interpretation is that this should mean all deciduous/holding dead winter leaf don't count as evergreen/semi-evergreen, and while this is obviously sensible - it is not in fact what the guidance states hence the degree of 'interpretation' as I put it earlier.

 

The conversation that I had suggested that without the clear boundaries of a definition, then there is the scope for interpretation that could be argued in court, but this would depend on the individual circumstances. The objectiveness should come in at the point of judgement of course, but prior to that there is the scope to raise questions on what is actually defined as a hedge under the regulations as they are currently written.

 

That said, in the wider legislation this lack of clear definition is a common practice that enables wide reaching law eg UK planning regs, to be applied in appropriate ways in different locales ie the same planning regs apply in central Birmingham as they do in Stratford-upon-Avon, despite being very different places and having different needs. If there were very clear definitions of everything in law - there will always be a way around the definition.

 

It is because of this frequent lack of legal definition that the judge has to sit and do their job, that is to make their judgement on how the law should be interpreted in each and every case.

Edited April 3, 2015 by 10 Bears

[daltontrees]

Now my turn to be pedantic...!

 

I don't disagree with you in interpretation of this, but even your reply starts with 'I think what [it] means is...' so it is apparent that there is a degree of subjectivity in the reading of the regs. I highlighted the 4.11 as an earlier comment said there were no species exclusions, however in fact there are. To apply the letter of the law BE and HB hedges are excluded.

 

Your interpretation is that this should mean all deciduous/holding dead winter leaf don't count as evergreen/semi-evergreen, and while this is obviously sensible - it is not in fact what the guidance states hence the degree of 'interpretation' as I put it earlier.

 

The conversation that I had suggested that without the clear boundaries of a definition, then there is the scope for interpretation that could be argued in court, but this would depend on the individual circumstances. The objectiveness should come in at the point of judgement of course, but prior to that there is the scope to raise questions on what is actually defined as a hedge under the regulations as they are currently written.

 

That said, in the wider legislation this lack of clear definition is a common practice that enables wide reaching law eg UK planning regs, to be applied in appropriate ways in different locales ie the same planning regs apply in central Birmingham as they do in Stratford-upon-Avon, despite being very different places and having different needs. If there were very clear definitions of everything in law - there will always be a way around the definition.

 

It is because of this frequent lack of legal definition that the judge has to sit and do their job, that is to make their judgement on how the law should be interpreted in each and every case.

 

I hope this is all good-natured, I like a debate because among other things it goves me a chance to look things up again, double and triple check them so that my understandings are reinforced. I would ahte to think that I am p***ing anyone off.

 

Did I say 'I think'? I could now rephrase it as 'I am satisifed in my mind...' .

 

You had said "Beech and Hornbeam hedges are exempt from the legislation, but no other deciduous are. Mixed conifer/mixed broadleaved hedges are not exempt - so enforcement could be pursued." I agree with the last bit. But I am bewildered by the first bit. I don't think it can be correct. Wholly HB and BE hedges are exempt. All wholly broadleaf hedges are exempt. The way you put it either means that all others like hawthorn are therefore actionable or means that only HB and BE are specifically mentioned but others may be actionable. I don't think (oops, I am satisfied in my mind...) that (n)either of these is the intended meaning, but I said earlier what I thought it meant i.e just because HB and BE carry leaves all year doesn't mean they are evergreen or semi-evergreen, so they're exempt.

 

Please forgive one last bit of counter-pedantry. You refer to the letter of the law and to regulations. The guidance is not the law and it doesn't have the formal status of regulations. It's just guidance. The Act doesn't allow for Regulations to be made. Nor does it say that guidance must be followed. But I amn't being picvky for the sake of it, this all makes the point I hope that parliament makes the laws, courts interpret them and councils have to carry them out but nowhere does it say that a civil servant anywhere gets to chage those rules. Only parliament can do that. Even the courts can't they can only fill in blanks caused by bad drafting.

 

I think we have different interpretations of what 'interpretation' means. In the end if it goes to court a judge will decide what interpretation should and woud have been reached by an ordinary reasonable person. This eliminates subjectivity. Eliminating subjectivity at the outset should prevent it getting to court in the first place. That's my personal gold standard.

 

Sorry again for any unintended offence, but as ever on Arbtalk one has an eye to other readers and at least now they will be aware of the need to check for themselves on your grey area.