IN THE HIGH BAILIFF’S COURT SITTING AT DOUGLAS
IN THE MATTER OF AN APPEAL UNDER SECTION 7
OF THE TREES AND HIGH HEDGES ACT 2005
BETWEEN
(1) MR A. BOARDMAN
(2) MRS J. BOARDMAN
Appellants
-VBRADDAN COMMISSIONERS
Respondent
DECISION & REASONS
1. The case before me is an appeal against a remedial notice which was issued on 16th
August 2011 (“the Notice”) under section 5 of the Trees and High Hedges Act 2005
(“the 2005 Act”). To my knowledge this is the first such appeal that has been made
under the 2005 Act.The hedge in question exists on land at 5 The Falls, Tromode
Road, Braddan. That land is owned by Mr. and Mrs. Horrox and I shall refer to that
land as “No.5”.The people complaining about the hedge are Mr. and Mrs. Boardman
of 42HollinBank,Tromode Woods in Braddan, which I shall refer to as “No.42”. No.
42 backs on to No.5. Mr. and Mrs. Boardman are the Appellants in thisstatutory
appeal and I shall refer to them as such. In a nutshell, the basis of the appeal
against the Notice is that the Appellants say that its terms do not go far enough in
tackling the trees and high hedge which they say is adversely affecting their
enjoyment of No. 42.
2. The Appellants are represented in the appeal by Mrs Pringle. The Commissioners
have been represented by Mrs Clough. As the recipients of the Notice, and therefore
as parties potentially affected by a decision on this case, Mr and Mrs Horroxare
noticed parties in these proceedings but have chosen not to appear. That said they
kindly allowed the site visit to take place at No.5 on the morning of the hearing of
the appealand the letterfrom Mr Horrox,dated 13th March 2012, has been adduced in
evidence.
3. The mechanism to be followed under the 2005 Act is that where a landowner of a
residential property makes a complaint to the Department of Infrastructure (“the
Department”) that his reasonable enjoyment of that property is being adversely
affected by a tree or high hedge situated on land owned or occupied by another, and
the complainant pays a fee, the Department has a statutory duty to consider the
matter. By virtue of section 3 of the Government Departments Act 1987 various
local authorities have been delegated to carry out the functions of the Department
1 with respect to trees and high hedges. The Commissioners of the Parish District of
Braddan (“the Commissioners”) are the local authority empowered to act in this
case. 1 I note that a condition of the delegation to the Commissioners is that in
exercising their functions regarding trees and high hedges, the Commissioners are to
ensure that the standing orders, in this case Trees and High Hedges Act 2005
Standing Orders for Department or Local Authority Officers (“the Standing Orders”),
are to be complied with. 2
4. On 22nd May 2011 the Appellants made their formal complaint to the Commissioners
regarding the trees and hedge in the garden of No.5. The first remedial notice,
dated 4 August2011, was issued by the Commissioners to Mr. and Mrs. Horrox to
take action in respect of the hedge. Due to a deficiency the remedial notice was
then amended by the Commissioners and re-issued on 16th August 2011. Theterms
of thisNotice form the subject of the appeal.
5. In determining the matter I have had the benefit of reading the extremely full appeal
bundle and the skeleton arguments filed on behalf of the Appellants and the
Commissioners. I have attended the site to view the trees and hedge and I have
listened to the evidence and oral submissions advanced before me at the hearing
which took place on 17th May 2012.
6. The amount of paperwork generated in this appeal has been somewhat large. As
with boundary disputes, disputes regarding trees and hedgesare often emotive which
perhaps explains the energy with which the parties involved have addressed matters.
The legislation I suspect was designed to provide a simple local remedy whereby
local authorities could adjudicate on matters and reach a decision. Unlike in the UK
where similar legislation allows an appeal to the Secretary of State only on the
papers, here the rules do not restrict how appeals are determined which has resulted
in the case being dealt with on a rather adversarial basis requiring a day in court.
That said the case has not been as costly, lengthy and confrontational as a High
Court civil action might have been. The role of the Commissioners as primary
respondent in the appeal has assisted in this respect. Furthermore, I am grateful to
the parties for their oral evidence and submissions and I am certainly in a more
informed position on the matter as a result the site visit and the day’s hearing rather
than from just reading the written material.Of course, I have read every document in
the various bundles provided but I will endeavour to minimise repetition of the
content thereof in these reasons.
7. As to the law,my jurisdiction in respect of this appeal is to be found expressed in
section 8 of the 2005 Act. I may allow or dismiss the appeal in whole or in part. If I
allow the appeal to any extent I may quash any remedial notice or vary such notice
as appropriate. In making that decision, in effect, I step into the shoes of the
1
2
under a delegation dated 10 August, 2007 (GC No. 45/07) GC 39/07 2 Commissioners and therefore I am duty bound 3 ,under section 4 of the 2005 Act,to
consider:
“4(4)…. All matters appearing to be relevant including:
(a) The extent to which the tree or high hedge is capable of affording (or, in the
case of a high hedge, if reduced in height, would still be capable of affording)
privacy to an occupier of neighbouring land
(b) In the case of a tree, after consultation with the Department of Agriculture
Fisheries and Forestry the extent to which the tree contributes to the amenity of
an area and
(c) The provisions of the Tree Preservation Act 1993 (to which this act is subject)
and any other legal obligations relating to the tree or hedge.”
8. In stepping into the shoes of the Commissioners I must determine whether a tree or
high hedge is adversely affecting the Complainant’s reasonable enjoyment of
theirresidential property, and if so what action should be taken in relation to the tree
or hedge through a remedial notice suitably drafted with a view to remedy the
adverse effect or preventing its recurrence. If I determine that the Notice must be
varied, I am required to send copies of the Notice as varied to the Appellants, to the
Commissioners, to the persons who own the land where the tree or hedge is situated
and, when any tree is involved, to the Department of Environment, Food and
Agriculture. 4
9. The definition of a high hedge in section 2(1) of the 2005 Act is:
“so much of a barrier to light as –
(a) is formed wholly or predominantly by a row of 2 or more trees or shrubs; and
(b) rises to a height of more than 2 metres above ground level.”
10. Section 2(2) of the 2005 Act makes clear that a row of trees or shrubs is not to be
regarded as forming a barrier to light if the existence of gaps significantly affects its
overall effect as such a barrier at heights of more than 2 metres above ground level.
11. The 2005 Act appears to be partly modelled on the provisions of Part 8 of the Antisocial Behaviour Act 2003 (an Act of Parliament). However, there is an important
difference between the Manx and UK legislation in that the latter is directed at high
hedges comprised of evergreens and it makes no mention of trees. The Manx
legislation encompasses any tree or high hedge whether evergreen or deciduous.
12. In the English High Court case of R(on the application of Pelling) v Newham LBC
[2011] EWHC 3265 Mr. Justice Blake was dealing with an application for judicial
review regarding the application of Part 8 by the local authority and the fairness of
3
4
By virtue of S.8(3)(a) and S.4(4) of the 2005 Act See s.8(4)(b) of the 2005 Act 3 the council issuing a remedial notice in the circumstances that existed there.
describing the general role of the local authority the judge stated:
In
“32. In my judgment, this is plainly a new statutory public law power afforded to
the local authority to determine whether to issue a remedial notice under the
statute. In that respect, this is in essence a public law exercise of judgment by
the local authority, admittedly a judgment to be exercised only upon complaint by
a person paying the specified fee, but nevertheless an exercise of judgment which
can be better compared with planning enforcement notices and abatement orders
and any other matters of that sort.
33. The local authority acts as a guardian of the public interest, in this case the
public interest meaning the interest in addressing a grievance by the landowner
about the size of a hedge and its consequences for a neighbour.”
13. In stepping into the shoes of the Commissioners, I need to consider the instructions
given to officers in the Standing Orders which provide a non-exhaustive list of factors
that local authorities may need to consider in exercising their powers under the
2005. These are: privacy; shelter; noise, smell, smoke; damage to plants;
overhanging branches; litter from the hedge; obstruction of sunlight; obstruction of
daylight; blocking of views; being oppressive/disproportionate; protected trees; and
the effect of gaps.
14. Crucial to this appeal are the issues of obstruction of light and the effect of gaps in
the hedge which may counteract a loss of sunlight. Paragraph 2.73 of the standing
orders states as follows:
“…loss of light is material if it affects the main rooms of a house. These include
living rooms, dining rooms, kitchens and bedrooms.”
15. At paragraph 2.74 it states:
“loss of light to the garden will depend upon the width of the hedge and its
orientation (whether it is to the north or south of the garden) as well as its height.
The area of the affected garden is also an issue; the area of shadow caused by
the hedge will cover a greater proportion of a small garden.”
16. At paragraph 2 (6) of the standing orders it states:
“the Department recommends that complainants should refer to the document
“Hedge Height and Light Loss” produced by the Building Research Establishment.
This guidance document provides an objective method for assessing whether a
hedge is obstructing the light to windows.”
17. The Building Research Establishment document (“the BRE document”) was referred
to by the Appellants in their complaint to the Commissioners. At the hearing it was
argued on behalf of the Commissioners that the BRE document had little relevance to
matters on the Isle of Man due to the primary differences in terms of evergreen
hedges as opposed to deciduous hedges and the inclusion of trees. To be fair to the
4 Appellant this does seem to be at odds with the guidance referred to in the standing
orders. Furthermore, I also note that in England a mixed hedge containing
deciduous varieties, albeit predominantly comprising evergreens, can still amount to
a high hedge within the legislation of that country. Therefore, I have looked at the
BRE document and considered points made therein when determining this appeal.
18. In the introduction to the BRE document it states:
“This Guidance Note provides a way of calculating the height of a hedge that is
likely to cause significant loss of light to a garden or house nearby. This method
could be used by a hedge owner, or by an affected neighbour, to find out if a
hedge is likely to block too much light to the neighbour’s house or garden.”
19. The document provides the ability to calculate the “action hedge height” and states
that a hedge higher than this is“already likely to be causing a significant loss of
light”.The BRE document suggests that the hedge should be cut below the action
hedge height to provide a growing margin which is between 600 millimetres and 1
metre below the action height to allow for annual re-growth.The BRE document
provides the method of calculation to arrive at corrected action hedge heights for
both the garden and windows affected by a hedge. I am satisfied that in this case
the Appellants’ calculation based upon the BRE document suggests the action height
of the hedge at the boundary should be no more than 2 metres. I note the result of
such calculation however such calculated action heights are not the end of the
matter, with each case depending very much upon the lie of the land and the
particular circumstances involved.
20. Both No.5 and No.42 were constructed by the same developer, Hartford Homes
Limited. No.42 was completed in 2001. No.5 was completed a little later. The aerial
photos at pages 124 to 129 show how the area was developed. The developer
separated the two pieces of land with an earth embankment and the boundary
between No.42 and No.5 runs along the crest of the bank for a little more than 30
metres. The boundary is now also marked by a one metre post and mesh fence
running along the top of the bank. The bank is an important feature when one
considers this hedge. The general lie of the land is that No.5 is lower than No.42.
The top of the bank is at an elevation of approximately 2metres above the rear lawn
of No.42. On No.5’s side the top of the bank is at an elevation of approximately 5
metres from No.5’s rear lawn. The dwellinghouseat No.5 is approximately a further 2
metres below the height of the rear lawn. The comparable relative heights of the
dwellinghouses are such that No. 42 is significantly elevated to the position of No.5.
A useful diagram of the situation is found in the sketch at page 311 of the Hearing
Bundle.
21. The Appellants moved into No. 42 in February 2002.They indicate that there were
small shrubs planted all over the embankment when they moved in. It would appear
that Mr. Horrox moved into his property in January 2003.The Appellants indicate that
they kept the shrubs on the bank at their side of the boundary below the height of
one metre and that in respect of matters at No.5, the hedge was not maintained and
grew significantly. The Appellants allege that no maintenance works were carried
out between 2003 and 2011 by the owners ofNo.5 and the plants on the side of No.5
grew to such an extent that the resulting hedge caused substantial light loss to the
rear garden and dwellinghouse at No. 42.
5 22. In January 2011 the Appellants contacted the Commissioners and were advised of
the procedure which required Mr and Mrs. Boardman to try to resolve the matter
with Mr and Mrs. Horrox directly. On 24 January 2011 the Appellants wrote to the
occupier of No.5 indicating the difficulties caused by the hedge and suggesting that
the trees and bushes on the earth bank should be reduced to the height of two
metres above the top of the bank in order to preserve privacy and to allow light into
No. 42. The evidence of the Appellants is that the occupiers of No.5 then cut some
holes in the hedge by stripping some lower foliage but did not reduce the height of
the hedge. It was stated that the holes were ineffective as the foliage soon grew
back. Therefore in May 2011 the Appellants lodged their formal complaint under the
2005 Act.
23. In the complaintthe Appellants referred to a number of grounds:
a. Substantial loss of light from downstairs rooms all year round due to the
location of the hedge.
b. The hedge had started to deprive the upstairs rooms of light in the winter.
c. The noise of the wind in the trees was frightening the children at No. 42.
d. Shadows from the hedge on the garden caused water-logging on the lawn
and led to poor quality of the grass.
e. The inability to cut overhanging branches due to the height of the trees and
the nature of the 2 metre high bank
f.
The closeness of the hedge to the property of some 8 metres and the height
of the hedge which reached over 9 metres.
24. I do not intend to go into the detail in respect to the actions taken by Mr. Paul Parker
the community warden for the Commissioners. I noted the criticism that the
Appellants directed towards Mr. Parker in respect of his handling of their complaint.
There are a number of allegations made against Mr. Parker by the Appellants in
terms of his objectivity and the suggestion that he sided with Mr and Mrs. Horrox. I
have heard and read the allegations made and have noted the responses from Mr.
Parker. I have to say that I found Mr. Parker to be a truthful and honest witness.
The job of a community warden in respect of this legislation is particularly onerous.
As I said earlier, disputes of this kind can result in a certain amount of heatand for
landowners, perhaps, to a lack of ability to see a problem from both sides. I am
satisfied that Mr. Parker appears to have used his best endeavours to resolve matters
as fairly as possible between No.42 and No.5.I recognise the frustration that this
hedge has caused to the Appellants. However, listening to Mr. Boardman give his
evidence, I detected a certain fixed attitude which perhaps has prevented him
recognising the even-handed approach that Mr. Parker was trying to adopt. I say no
more upon the issue other than to indicate that where there was a different account
given of the facts between Mr. Parker and Mr. Boardman, I preferred the evidence of
Mr. Parker as being the more accurate. I am not saying that Mr Boardman was
untruthful in anyway, simply that his perception of the facts appeared more
subjective and therefore less accurate than the evidence of Mr Parker.
25. I noted a certain amount of changes to the detail that the Commissioners applied in
terms of what was contained in the remedial notices. I do not find that such
6 changes are material to my considerations as to the adequacy of the Notice of 16
August 2011.
26. I am satisfied that the condition of the hedge at the time of issuing of the Notice was
such that it fell within the definition of a high hedge under the 2005 Act. As a
picture expresses a thousand words, I refer to the photographs shown at pages 9,
10, 11, 12, of the Hearing Bundle together with those contained at Divider 5 of Mr
Parker’s Exhibit PP1 which show thesubstantial nature of the plants forming the
hedge at No.5. The particularly high plants being the Ash and Alder trees. Also
present being Laurel,Willow,Elder, Hazel, Silver Birch, Sycamore and Hawthorn.
27. By issuing the Notice the Commissioners clearly accepted that the high hedge and
trees situated at No. 5 adversely affected the Appellants’ reasonable enjoyment of
No. 42 and that action should be taken in relation to the hedge in order to remedy
the adverse effect and to prevent its recurrence.The action required by the Notice
was as follows:
“I. The trees and shrubs which are situated directly adjacent to the boundary and
within 1 metre from the top of the earth bank should be reduced in height and
maintained at 2 metres in height (measuring from the top of the earth bank).
II. Shrubs situated on the slope of the bank more than 1 metre from the
boundary fence and less than 5 metres on land belonging to [No. 5] should be
reduced to 5 metres in height (measuring from the top of the earth bank). Trees
sited in the same position should be reduced and kept at a maintainable height of
5 metres (measuring from the top of the earth bank) and thinned out and
maintained annually to create gaps in their foliage to prevent a continuous barrier
to light.
III. Shrubs and trees situated at the base of the slope on land belonging to
[No.5] are approximately 5 metres from the boundary fence to their trunk with
the shortest distance from the boundary and the closest part of the tree foliage
being approximately 4 metres and therefore should be kept and maintained at a
height of 8.5 metres and thinned out annually to prevent a continuous barrier to
light.”
28. The works were required to take place within 60 days of the expiry of the 28 day
appeal.
29. The notice of appeal is dated 30thAugust, 2011. There were five grounds of appeal
which can be summarised as follows:
a. The Commissioners were in error in setting different action heights as the
nature of the hedge was a single contiguous entity and it should have been
assessed according to the guidance with a single action height.
b. The Commissioners had not been accurate in their calculations which had
resulted in artificially high action heights.
c. The Commissioners were in the error as there was no action height for trees
and shrubs in the zone between 1 metre and 1 ½ metres from the boundary.
d. The action height for trees approximately 5 metres from the boundary should
be measured from ground level where the trees are situated rather than the
top of the bank.
7 e. The Commissioners were in errorby allegedly ignoring the BRE document
guidance in reaching their conclusion that the removal of the highest trees
would interfere with privacy.
30. The error referred to at ‘c.’ aboverelated to an earlier notice and is now no longer
relevant. As stated above on an appeal of this type it is for me to step into the
shoes of the Commissioners and decide the matter again from first principles. That
said, I do not ignore the approach adopted by the Commissioners and,wherethe
steps or method proposed by the Commissioners appears to be adequate to abate
the problem with the high hedge and prevent its recurrence, then such method
should be respected.
31. The fact that an appeal has been lodged has meant that the Notice is suspended
until the outcome of the appeal. Nevertheless, significant work has been carried out
to the hedge on behalf of Mr. and Mrs. Horrox since the notice was issued. The
Appellants believe that the very substantial work was only carried out as a direct
reaction to the fact that the Appellants’ expert aboriculturalist, Mr. Bennett, was due
to visit No.5 and No.42 on 29 February 2012 and is simply a direct reaction to this
appeal.
32. I have read the statement of Mr and Mrs Boardman and heard the oral evidence of
Mr Boardman. In evidence Mr. Boardman indicated, albeit reluctantly, that he was
satisfied with the condition of the hedge as it then appeared following the works.
Mr. Boardman described the work as “decimating the hedge”. Mr. Boardman said
that if such work had occurred when he first raised the subject in January 2011 his
complaint and this appeal would not have been necessary. I accept that such is the
case.
33. Mr. Boardman’s position regarding his being content with the appearance of the
hedge appears to be the only stance available from a reasonable person’s
perspective. I have to say that when I attended the site visit the remaining hedge
did not appear to me to be particularly problematic and is certainly of a different
appearanceto that shown in the photographs from 2011.
34. Nevertheless in respect of the Notice, Mr. Boardman indicated that he was not happy
with the terms therein as he saw them being vague and unenforceable. Mr.
Boardman was worried that somehigh trees had been retained at No.5 and that the
risk of re-growth, especially re-growth now being with greater vigour following
pruning, would mean that the problems encountered in 2011 would soon recur. Mr
Boardman referred to the effect of the hedge prior to pruning had been to cut out
the view of the sky from the windows of No.42 and turned the back garden into a
sort of green trench. I find as a fact that the hedge prior to pruning was adversely
affecting the enjoyment of No.42 due to it diminishing daylight and sunlight within
the downstairs rooms of No.42.
35. The Appellants’ expert aboriculturalist, Mr Bennett,gave evidence. Mr
Bennetthadvisited the site after the substantial work had been carried out. I have
carefully read the report of Mr. Bennett and have listened to his oral evidence. I
found Mr. Bennett to be a credible expert witness who was careful to remain within
the confines of the field of his expertise. Mr. Bennett’s clear recommendation was
that “the works specified within the remedial notice are not sufficient to ensure that
taller retained [trees] will not grow to form an unacceptable barrier to light”.
8 36. Mr. Bennett recommended a single action height for all remaining trees and shrubs
of two metres, measured from the crest of the embankment. Mr. Bennett indicated
that a single height restriction could be easily enforced and therefore was more likely
to ensure future compliance. As to clauses ‘II.’ and ‘III.’ of the Notice Mr. Bennett
categorised the two actionsrequired as being: (a) reduction in height on an annual
basis; and,(b) a prescription for works to the remaining section of trees in order to
create gaps.
37. Mr. Bennett said he would not have prescribed three different action heights for the
hedge as he did not consider it a pragmatic or appropriate way forward. Mr. Bennett
could not understand the rationale for describing three different linear zones within
what is a very narrow band of landscaping, of only about five metres. Mr. Bennett
was concerned as there was a lot of interaction of individual stems and the difficulty
in ascertaining where they lay in terms of whether they were in the zones ‘I.’, ‘II.’
and ‘III.’ of paragraph 3 of the Notice. Mr. Bennett was of the opinion that the
purported tiered nature of the landscaping required by the Notice was contradictory
to the objectives sought by the Notice in terms of the control of the remaining side
growth in order to keep that tiered structure.
38. Despite his general concerns regarding the tiered height, Mr. Bennett said that it
would be possible to prescribe the nature of the three gaps required and he felt that
it was that level of prescriptive recommendation that was necessary in the remedial
notice. Mr. Bennett felt that the current wording of the Notice was not sufficiently
clear whereby he would feel confident that either he or an instructed
contractorwould be able to interpret the Notice as a definitive specification of any
works required. Mr. Bennett said there was a fundamental difference between
“thinning” and “reduction” in arboricultural terms. “Reduction” was the shortening in
length of branches as opposed to “thinning” being the removal of a proportion of
internal retained growth so as to obtain an even density of foliage bearing material
across the tree structure. Mr. Bennett was of the opinion that the creation and
maintenance of gaps could not be attained by thinning.
39. As to the appearance of the hedge at the time of my site visit, Mr. Bennett urged
caution on the basis that we were only some 2 to 3 weeks into the growing season
therefore the trees had not had the history of re-growth over one year and that they
would change in the terms of density of foliage over successive years. In respect of
the gaps between the trees that existed at the site visit, Mr. Bennett was of the
opinion that with a year’s growth such gaps would diminish by 50 per cent. As an
average Mr. Bennett said that he would expect about 80 centimetres of lateral
growth during the growing season but that this would vary with the species involved.
40. With respect to the issue of the adoption of a uniform height for the hedge creating
the appearance of ‘telegraph poles’ when the hedge is viewed from the direction of
the dwelling house at No. 5, Mr. Bennett said that he understood the point as a
“subjective amenity comment”. Nevertheless, he indicated that the suggested control
contained in the Notice already would require that the trees were effectively subject
to pollarding.If a uniform height was prescribed, Mr. Bennett accepted that there
would be a certain amount of reduction in visual amenity over the first growth
season however pollarding was a recognised appropriate management prescription
applied to young trees of the species found in this hedge. From an amenity point of
view Mr. Bennett felt that, rather than having the variation in terms of trees of
different heights, a uniform height would return the landscaping to a hedge feature
which was widely accepted as a pleasing feature for a great many people. However
9 41. Mr. Bennett said that the adoption of a uniform height would encourage the
deciduous trees to thicken up below the level of two metres which would make a
sustainable long-term boundary between the two properties in respect of porosity
and noise attenuation. Mr. Bennett believed that a two metre high restriction on
growth above the height of the earth bank would provide reasonable and adequate
privacy especially if the hedge was allowed to thicken up. Mr Bennett was referred to
the Standing Order guidance as to Privacy (see page 237 of the Hearing Bundle)
which indicated that usually a hedge of 2metres would provide sufficient privacy. Mr
Bennett, although acknowledging that the properties were at different heights, did
not believe that the description of the land passing from No.42 to No.5 could be
described as “steeply terraced” so as to indicate the need for a higher action
height,higher than 2 metres, for the hedge.
42. Mr. Bennett agreed that the work recently carried out to the hedge had, in the main,
complied with the requirements of the Notice.However, he questioned the remaining
heights of trees or shrubs found within the area specified in paragraph 3.II.of the
Notice being not what was prescribed. Mr Bennett agreed that at the site visit it was
evident that there were three significant gaps between the groups of taller trees.
43. As to the likely effect upon the trees in the garden of No.5 with reference to the Tree
Preservation Act 1993, I clarified with Mr. Bennett that the inclusion threshold for
protection under the 1993 Act was a tree with its principal stem being greater than
80mm in diameter measured at 156cm above ground level. A number of the trees
comprised within the hedge at No.5 came within such protection and as such a
landowner must not wilfully subject the tree to any act whereby the tree is damaged,
destroyed or caused to die. As to a measure in respect of risk of causing damage, Mr
Bennett referred to the 2010 British Standard for Tree Work. Mr Bennett felt that the
trees in question (with the exception of any Silver Birch) met the criteria in terms of
their size and appropriateness to initiate pollarding. Therefore in Mr Bennett’s opinion
the work proposed would not contradict the provisions of the 1993 Act.
44. Mr Bennett suggested that the situation in the Isle of Man in terms of the links to
English guidance was confusing bearing in mind the differences in the legislation.
Particularly where they referred to calculations from the BRE document being used to
determine the action height of a hedge when there were no calculations appropriate
to the 2005 Act.
45. In oral evidence Mr Bennett confirmed that there were different ways to ensure that
the light reaching No.42 did not fall below an acceptable level. The creation of gaps
was one way to achieve that objective. Although this was not Mr. Bennett’s
preferred method, he indicated that the size of the gaps could be specified in the
remedial notice.Mr. Bennett said that he had not measured the width of such gaps
and believed that some may be less than five metres in width. In his view in order
10 to maintain significant gaps throughout the growing season they should be cut back
annually to create a width of gap of five metres after pruning. This was based upon
Mr. Bennett’s evidence of annual re-growth being 50%.
46. With the exception of his views as to visual amenity and privacy, I fully accept the
evidence of Mr Bennett. I gained the impression that Mr Bennett acknowledged the
alternative avenue of maintaining adequate gaps was a viable way forward. As to
privacy and amenity values, to be fair to Mr Bennett such issues are slightly
subjective in any event.
47. In his evidence to the court, Mr. Paul Parker confirmed that he had been employed
as a warden since 2004 and had dealt with approximately 30 cases regarding high
hedges since 2007. Mr. Parker confirmed that this was the first remedial notice that
he had been required to issue. I do not intend to repeat Mr. Parker’s evidence
regarding his handling of the complaint in terms of the communications he had with
Mr. Boardman or Mr. Horrox. Suffice to say, I do not accept that Mr. Parker
attempted to act as mediator or failed to adjudicate the matter properly on behalf of
the Commissioners.
48. Mr. Parker’s evidence regarding the tiered nature of the hedge which was envisaged
through the terms of the remedial notice was analysed both in his evidence in chief
and in his cross-examination. Mr Parker indicated that the Commissioners had
framed the Notice in line with the advice given in the paragraph 3.31 of the Standing
Orders which gave guidance on “taking care of the problem” and referred to the
points to be considered inter alia as follows:
“whether this is simply a matter of reducing the height of the hedge or tree(s) or
whether other remedies would be more effective. These might include reducing
the height of selected trees forming the hedge, to open up gaps. Alternatively,
the lower branches of the hedge or tree(s) might be removed (known as crown
lifting) or the branches might be thinned out. In some cases, an appropriate
remedy might well include reducing the width of the hedge or tree(s) as well as its
height;”
49. Mr. Parker confirmed that he had considered all matters but in particular privacy,
daylight, sunlight and the creation of gaps.
50. As to privacy Mr. Parker confirmed that he had not used the calculations set out in
the BRE document. Mr. Parker had taken note of the guidance contained at
paragraphs 2.48 – 2.51 of the Standing Orders indicating that on level ground a
hedge of 2 metres would usually be sufficient to provide adequate privacy however
regarding special cases, where the property was elevated,the height of the hedge
may need to be increased up to 3.5 or 4 metres. Mr. Parker emphasised that such
guidelines were based upon the dwellinghouses concerned being equidistant from
the hedge. In this case the house at No. 42 was far closer to the hedge than that at
No.5 and therefore No. 42 from its elevated position had a greater viewing point into
No.5. Mr. Parker felt that to retain some kind of privacy the hedge had to be
terraced i.e. cut in sectionson the bank. The bank at No.5 was much steeper on that
side than it was on the side of No.42.
51. As to the issues of sunlight and daylight, Mr. Parker confirmed that he was cognisant
of these issues on the various site visits that he made. Mr. Parker indicated that as
there had been concern that the hedge was preventing drainage to the rear lawn at
No. 42 and that the lack of sun was affecting the grass, he had visited during wet
11 periods or just after rain. He also sought the expertise of Mr Wood. During such
visits issues of shadows on the lawn and the amount of sunlight and daylight were
assessed. Mr. Parker said that during these visits sunlight to the gardens was not
being obstructed nor was sunlight being obstructed by the hedge from entering the
patio windows at the rear of number 42. Photographs at pages 434 and 435 show
sunlight entering such windows at approximately 2pm in April, but of course such
photographs were taken after the major work to the hedge had been done. The
other photographs I have seen do not really show shadows as conditions appear to
have been overcast. Nevertheless I can accept, because the position of the
hedgewas roughly south to south southeast of the house,that during the summer
months the sun entering the rear garden would come from pretty much overhead.
The fine crop of apples on the dwarf apple tree in the pot next to one of the rear
patio windows is testament to the amount of sunlight at the rear wall of No.42. That
said, in the winter with the sun lower in the sky I accept that obstruction may have
been caused by the hedge. Mr Boardman also referred to a reduced ability to see the
sky, which I also accept. Mr Parker did not visit in the winter other than when the
work to the hedge,in January 2012, had been carried out.
52. Mr. Parker stated that the notice aimed to create significant gaps in the hedge above
the height of two metres so as to improve the situation in terms of sunlight and
daylight and retain privacy. Mr. Parker said that a significant gap would be three
metres minimum. Mr Parker said that the length of the hedge which affected No. 42
the most was the 19.2 metres of the hedge from the boundary with No.43. Mr Parker
said that he had assessed the detrimental effect as occurring more internally within
the dwellinghouse rather than externally to the garden of No.42.At the time of the
hearing,along the length of the 19.2 metres,there were three gaps in the foliage
above the height of two metres from the top of the bank which approximately
measured in width 3.6 metres, 3 metres and 5 metres. Mr Parker referred to these as
Gap 1, Gap 2 and Gap 3 and drew their respective positions on the photograph
contained on page 354 of the hearing bundle. Mr. Parker suggested that the work
that had been done to the hedge in January 2012 had, pretty much, achieved the
purpose of the Notice. Mr. Parker estimated that 75 to 80 per cent of the work
required under the Notice had been complied with. Mr. Parker referred to further
work necessary under the Notice in terms of, for instance, lowering the height of
trees and shrubs in zone ‘II.’ asparticularly seen in the marked photograph at page
354 in the area of Gap 2. Mr Parker suggested that in his opinion a minimum gap
was 3 metres afterannual pruning. He accepted that yearly growth would close that
gap somewhat and if it occurred at the rate suggested by Mr Bennett of 50% it could
bring the gap down to 1.5 metres by the end of the growing season. Mr Parker
believed this still amounted to a reasonable gap.Mr Parker accepted that with the
benefit of hindsight the notice could have been improved by it specifying widths of
significant gaps.
53. Mr. Parker’s evidence regarding why tiered cutting was specified in the remedial
notice appeared slightly unclear initially in his examination in chief. Mr. Parker firstly
indicated that the different maximum heights were in order to create significant
gaps. However when giving further explanation Mr Parker clarified his evidence that
the three zones in the notice were adopted to protect the privacy of Mr and Mrs
Horrox. In cross-examination Mr Parker confirmed that the zoning down the bank on
the side of No.5 was not relevant to the creation of gaps but was required, in the
opinion of Mr. Parker, to maintain privacy between the two dwelling houses. A
particular concern was the way the upstairs back bedroom windows of No. 42
overlooked the dwellinghouseat No. 5. In cross-examination Mr. Parker was referred
12 to the photograph at p.415 of the Hearing Bundle and Mrs Pringle suggested that 3.6
metres in height would provide more than adequate privacy between the two
properties. Mr. Parker said that such was the case from the position where the
photograph was taken but not from the position of the dwellinghouse at No.5. At
that position the rear windows of No. 42 looked into the dwellinghouses at
No.5.Having observed the position on the site visit I accept this evidence.
54. The Commissioners, through Mr Parker, had sought advice as they were duty bound
to do under the 2005 Act from Mr Thomas Keenan who is the southern area forester
for the Department of Environment,Food and Agriculture. I heard the evidence of Mr
Keenan. Mr. Keenan has been employed within the forestry directorate for 30 years.
Mr. Keenan made two visits to No. 42 in July 2011. His e-mail of 10th August
2011referred to the desire of the Appellants for a reduction in height of all the trees
in the hedge. Mr. Keenan stood by his e-mail which indicated that although this
would not kill the trees it would not be aesthetically pleasing to the eye from a visual
perspective. Mr. Keenan indicated that his view of annual growth rates in the Isle of
Man was not as high as 50%,as suggested by Mr. Bennett, but was more like 3040%. I find as a fact that, with his local knowledge,Mr Keenan’s evidence as to
general growth rates in the Isle of Man is likely to be more accurate than that given
by Mr Bennett. In terms of the maintenance of gaps, Mr. Keenan believed that
pruning of the trees would not cause them any damage so as to be a concern under
the Tree Preservation Act. In cross-examination Mr. Keenan accepted that his
comments regarding the appearance of trees being reduced to a single height being
not aesthetically pleasing was not a long-term view and he accepted,as Mr. Bennett
had said, that their appearance would soften as the trees thickened up in subsequent
years.
55. The important point of Mr Keenan’s evidence, which I accept, relates to his view that
neither cutting to a uniform height nor pruning significant gaps would damage the
trees.
56. I also considered the written evidence of Mr. Wood. However the issue of the effect
of the hedge upon the condition of the lawn at No. 42 was not being pursued by Mrs.
Pringle on behalf of the Appellants.
57. I have also considered the letter dated 13 March, 2012 from Mr. Horrox. I note Mr.
Horrox was willing to give evidence but that neither party wished to call him. In
particular I note Mr. Horrox’s comments which have been expressed as follows:
“The plan is/was to clear the lower shrubs this year (2011) thus allowing the taller
trees and bushes light lower down as they had become spindly, for the next year
(2012) the idea is/was to trim the trees and larger bushes from the top thus
encouraging growth lower down. This would allow us to maintain the height to a
reasonable level and allow the shrubs, bushes and lower limbs of the trees to
grow and fill out creating a pleasant view from our garden...
My wife and I do not want to have a particularly large or onerously full screening
on our side of our garden as it is the side which receives the late afternoon and
evening sun.
We do however want to look at green mixed shrubbery not a brown of bank, but
most importantly we want privacy and we certainly do not want to be looking at
the second floor bedroom windows of Mr. and Mrs. Boardman’s property.
13 Mr. & Mrs. Boardman look down on our property, our patio area is about 10
[metres] below the bank (vertical distance) and with the distances and fall of the
land we are exposed and over looked from the upstairs windows of [No.42].
From the upstairs windows of [No. 42] it is possible to see into our sitting room,
dining kitchen and very importantly our bedroom as well as our bbq/patio area
and garden.
The bank is not covered in a continuous screening of shrubbery either in the
summer months or in the winter.
My wife and I are prepared to comply with the remedial notice as issued and
revised and notified to us by letter dated 16th August 2011.
Should the trees and bushes be treated in the [manner] proposed by Mr. and Mrs.
Boardman my property would be completely exposed to them from their higher
position, the trees would probably die as they would be cut to such an extent as
to kill them and we would be faced with totally having to replant the bank to at
least give us some outlook.”
Discussion and Resolution of Issues
58. As to the need for a single action height, I agree with Mr. Bennett that, from the
point of view of enforcement, setting a single action height for the hedge and trees
at two metres above the crest of the bank has advantages. I have noted that
unfortunately there does appear to be some animosity on both sides with Mr. Horrox
involving the police regarding the unlawful cutting of his trees and shrubs prior to
January 2011 and the lack of face to face contact between the parties. This hedge
may continue to be a source of conflict between the neighbours in the future and
therefore the simpler and clearer that the requirements are, in terms of the content
of a remedial notice, the better. Ambiguity in itself could lead to further conflict. In
reaching the decision in respect of this case I do accept the point that a remedial
notice requires clarity. However in my view the situation is not such that a uniform
action height is the only way to proceed to provide that clarity.
59. I accept that any landowner should have the freedom to landscape their property in
the way that they choose. Such principle obviously is subject to reasonableness and
the damaging affect of light loss through the positioning of a high hedge is clearly
something that Tynwald has chosen to legislate against. As Mr. Parker indicated the
matter is a question of balance. Not every person would agree that a uniform hedge
height is aesthetically pleasing. The remedial notice needs to reflect the choice of
the landowner to have plants at different heights so long as that does not
unreasonably interfere with the enjoyment derived by the neighbour in respect light
levels to their property.
60. In my view the compromise suggested by the Commissioners in setting three zones
at progressive distances from the boundary down that the earth bank allows scope
for a variety of tree heights and provides visual amenity value to the hedge. I noted
what Mr. Bennett said about ambiguities such as which stem was in zone I. or zone
II..However commonsense must also come into play and micromanagement of a
hedge to individual twigs is something that I would hope both Mr. Boardman and Mr.
Horrox would not demand or expect. Life really is too short to be concerned on such
matters. My impression of Mr. Parker as the representative of the enforcing
14 authority indicated that he appeared to be a man who would view the situation
practically, pragmatically but also robustly where the need arose.
61. In the notice of appeal the Appellants suggested that there had beena number of
calculations carried out by the Commissioners which had then been corrected. One
in particular related to the relative heights of the lawn area of No.42 above the land
at the top of the lawnat No.5. The Appellants submitted that in reality this was only
about 0.5metres. The Appellants in their written notice of appeal specifically referred
to the BRE document and alleged that the Commissioners had incorrectly calculated
action hedge heights using the measurements of the trees in the hedge furthest from
the boundary. Such submissions were not pursued at the appeal hearing in light of
Mr. Bennett’s evidence that using the BRE document was not comparing like with
like. Although I have looked at the BRE document, I accept that point. Subject to
the creation of gaps I do not conclude that the action heights set in the remedial
notice are erroneous or create a hedge which is out of proportion with its setting.
My observation of the locality of Tromode Woods was that it containslow density
housing in a semi rural setting which could be described as being “pleasantly leafy”.
Hedges and trees of various heights were evident throughout the locality. I noted the
close proximity of No. 42 to the small area of woodland to the north. I certainly did
not consider that the hedge that I viewed on the site visit was out of proportion to
the neighbourhood or dominating to the property at No.42.
62. I accept the evidence of Mr. Parker that a fundamental provision within the Notice is
the creation and maintenance of gaps at regular intervals above the height of two
metres measured from the position of the boundary at the top of the bank. Mr
Parker’s vision of the result which would be brought about by compliance with the
Notice does appear to have been realised,despite the notice not being in force due to
the appeal. Nevertheless it seems to me that, bearing in mind the higher heights of
the trees which are set back from the boundary,clear steps need to beprescribed in
the Notice to ensure that a continuous and contiguous higher level canopy along the
entire length of the hedge is not allowed to develop. In my view such a canopy
would unreasonably obstruct both sunlight and daylight reaching No. 42. The
Appellants were concerned that the depth of the hedge might mean that the gaps
have little appreciable effect. The phased zoning as required by the current remedial
notice will have some effect upon the depth of hedge. I conclude that the
maintenance of three gaps of at least three metres in width will ensure adequate
access to daylight and sunlight to No.42.
63. In respect of measurements being taken from the top of the earth bank rather than
from the ground-level of the particular tree or shrub, it seems to me that in respect
of this location measuring from the top of the earth bank is a sensible mechanism to
adopt as it is a prominent and permanent feature and in assessing whether the
hedge is a high hedge measurement of the hedge at this point is the one that needs
to be considered in the first instance. The sloping nature of the bank and the
relative heights of the two properties mean that the crest of the bank is a good
measuring point. Indeed, from the perspective of No.42 it will be easier for the
Appellants to assess various heights of the hedge, if necessary, using such a datum
point. It appears that the real issue of the appeal here is that the height of the trees
allowed in the notice is allegedly too high. As stated above I am not of the view that
such heights are disproportionate provided there is the creation and maintenance of
adequate gaps between the groups of trees and higher shrubs above the height of
two metres measured at the boundary.
15 64. As to privacy, at the site visit it was clear that the first floor rooms to the rear of the
dwelling house at No. 42 do have a view into No.5. The hedge therefore provides
important screening. I have considered the guidance contained in the Standing
Orders and I do agree with Mr. Parker that the different height zones when travelling
away from the boundary will provide reasonable screening up to at least the level of
the eaves of number 42 when viewed from No.5. Of course the significant gaps may
mean that some amount of overlooking occurs, however there must always be a
compromise between privacy and levels of light.
65. Thankfully most neighbours are able to resolve such issues between themselves.
However where this cannot be achieved in terms of a high hedge, the Commissioners
have the power to intervene and in my view they have achieved an appropriate
balance in this case. I am confident that the Commissioners will continue to enforce
the matter in the future should the need arise.
66. The Appellants made clear that they did not wish to pursue issues regarding the lawn
suffering from shade and being waterlogged. In any event, the evidence from Mr.
Wood was that when he inspected he found no obvious amount of moss evident in
the grass and could not see that the trees, which were the subject of the complaint,
had any detrimental effect on the lawn. I accept this evidence.
67. The other matter such as the noise of the trees frightening the Appellants’ children is
not something that I need to consider.
68. I am satisfied that the Commissioners were fully justified in issuing the Notice. The
condition of the hedge at that stage was such that it was interfering with the
reasonable enjoyment by the Appellants of their dwellinghouse on the basis that the
amount of light entering No. 42 was being unreasonably restricted by the position
and size of the hedge. I can infer that in the late Autumn to early Spring the
lowness of the sun in the sky would have combined with the height and thickness of
the hedge to interfere with the amount of sunlight and daylight enjoyed at No. 42.
Of course as the trees are deciduous there would have been more light penetration
at that time of year but I do note that there are evergreen shrubs such as laurel
within the hedge which would have added to the problem. The Commissioners took
action upon the formal complaint made by issuing the remedial notice. Save for in
one respect, I do not share the opinion of the Appellants that the notice should have
gone further and provided a uniform action height of two metres above the
boundary. Having taken into consideration all relevant matters and in particular the
guidance contained in the Standing Orders, which seems to me to itself be based on
sound commonsense, I am satisfied that the negative effects of this high hedge as a
barrier to light can be extinguished by the creation and maintenance of at least three
gaps above the height of two metres from the top of the bank to create clear and
unobstructed corridors for skylight and sunlight to pass through. I agree with the
Commissioners that the zoning of different height levels in the hedge adds to the
privacy provided by the hedge. Therefore I am satisfied with the content of the
existing Notice save that I believe that the significant gaps, which according to Mr.
Parker are already implied through his interpretation of the Notice, should be
specifically expressed so that there can be no doubt upon the matter for the future.
69. As to what is a gap which will significantly affect the overall effect of the hedge as a
barrier to light, I am satisfied that three gaps of a minimum width of three metres
each will nullify the effect of this high hedge. Three metres is the minimum width of
16 these gaps at the conclusion of the growing season. Therefore if annual pruning
takes place the gaps may have to be as wide as 4.5 to 5 metres immediately after
pruning to accommodate annual growth and still maintain the 3 metre minimum
width.
70. I am satisfied upon the evidence of Mr Kaneen that the maintenance of gaps is not
likely to kill or damage the trees involved.
71. Although Mr. Horrox has not taken an active part in this appeal I have considered his
written representations regarding his plans in respect of the hedge. I recognise that
the imposition of requirements with regard to maintaining gaps may make the
managing of this hedge more difficult for him. In that regard Mr. Horrox has a
choice, if he does not wish to be bothered by the maintenance of the gaps as set out
in the amended remedial notice that I shall issue, he can cut the hedge to a uniform
height so that notrunk,branch,stem or foliage throughout the entire width of the
hedge is more than two metres in height above the reference point being the crest of
the bank at the boundary. As Mr. Bennett indicated the maintenance regime that
would then occur would be on the basis of simple apical pruning rather than more
selective reduction of side foliage.
DECISION
72. For the reasons stated above I vary the terms of the remedial notice in that
paragraph number “3.” Shall read as follows:
“3. This notice requires the following steps to be taken in relation to the hedge and
trees before the end of the period specified in section 4 below
I.
II.
III.
IV.
The trees and shrubs situated directly adjacent to the boundary between 5
The Falls and 42 Hollin Bank and within one metre from the boundary (being
the top of the earth embankment (“the bank”) separating the said two
properties) should be reduced in height and maintained at two metres in
vertical height abovethe top of the bank at the boundary at a point closest to
such tree or shrub.
Shrubs and trees situated on the slope of the bank more than one metre from
the boundary fence should be reduced to five metres in vertical height above
the top of the bank at the boundary at a point closest to such tree or shrub
and must be pruned at least annually so as to create or maintain gaps (more
particularly defined in clause IV below) so as to prevent a continuous barrier
to light.
Shrubs and trees situated at the base of the bank being approximately five
metres or more from the boundary should be kept and maintained at a
height of 8.5 metres in vertical height above the top of the bank at the
boundary at a point closest to such tree or shruband pruned at least annually
to create or maintain gaps (more particularly defined in clause IV below) to
prevent a continuous barrier to light.
Gaps - There shall be at least three separate roughly parallel gaps devoid of
tree, shrub or foliage running on a bearing of 350°/170° created or
maintained in the hedge above the height of two metres (measured from the
top of the earth bank at a point closest to suchgap) creating an unimpeded
17 corridor for light with the width of each such gap being no narrower than 3
metres at any time of year and such gaps shall be created or maintained in or
around the positions indicated as “Gap 1”, “Gap 2” and “Gap 3” shown on
the photograph at Appendix A attached to this notice.
4.SPECIFIED PERIOD FOR THE WORK TO BE DONE
The works as set out in section 3 should be carried out before 31stDecember 2012
(this takes into account the period 1st February to 31st August when there is a risk of
injury or disturbance to wild birds).”
73. I am duty bound to send a copy of the varied notice to the various parties and intend
to serve the same by post upon the Appellants, and the Department of Environment,
Food and Agriculture and by coroner to the Mr and Mrs Horrox. I trust that Mr Parker
will liaise with Mr and Mrs Horrox as to the remaining work necessaryto be
completed by the end of the year for compliance with the Notice.
……………………………………
J. A. Needham
High Bailiff
June 2012
18 
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