Offences

Failure to comply with the requirements of a retention notice or apply retrospectively is an offence punishable, on conviction in the magistrates’ court, to a level 3 fine (up to £1,000). The court might then – in addition to, or in place of, a fine – issue an order for the offender to carry out the required work within a set period of time. Failure to comply with the court order would be another offence, liable to a level 3 fine. From this point, the court would also be able to set a daily fine of up to one twentieth of a level 3 fine for every day that the work remained outstanding.

This means that offences are committed:

• Where someone does not complete the initial one-off action specified in the remedial notice within the time specified; and
• Where any continuing maintenance works are not carried out in accordance with the requirements set out in the notice.

A separate action may be brought against each contravention of a remedial notice. For Example, someone could be prosecuted for failure to carry out the initial action specified in the remedial notice. They might then cut the hedge but subsequently fail to maintain it as required. This would be a separate offence for which they could also be prosecuted. Equally, if they then trimmed the hedge but did not do so again, as specified in the remedial notice, a new offence would be committed.

Where the requirements of a remedial notice are breached, whoever is the owner or occupier of the land where the hedge is situated at the time when the offence takes place could be liable to prosecution. This includes not only the owner and occupiers of the site who originally received copies of the remedial notice but also their successors (but see the section below on Defences).

Where there is both an owner and an occupier (e.g. landlord and tenant), Councils should initially direct enforcement action at the person who has legal responsibility for managing the hedge. However, general provisions in the Public Health Act 1936 (relating to the power of the courts to require an occupier to permit work to be done by an owner) apply so as to give the owner the right to comply with a remedial notice. They can do this even though, under the terms of their contract, the occupier might have sole responsibility for maintaining the hedge. Ultimately, therefore, the landowner is responsible for ensuring the requirements of a remedial notice are implemented.

If, after reasonable enquiry, the Council are unable to trace the owner or occupier of the land where the hedge is situated, they effectively have no-one who can be charged with an offence, or against whom enforcement action can be taken. In these circumstances, Councils might wish to consider using their power to enter the land and carry out the works specified in the remedial notice, in default of the owner or occupier (see the section below on Council intervention). Where offences are committed by bodies corporate, proceedings can, in certain circumstances, be taken against individual officers as well as the body corporate.

Defences

A person will be able to defend themselves against prosecution under the Act if they can show that:

• They did all that could be expected of them to meet the requirements of a remedial notice.

This is relevant where there is both an owner and an occupier of the land in question and a prosecution is brought against the person who does not have control of the hedge; and/or they were not aware of the existence of the remedial notice at the time that the offence took place. This last defence can be used only where the person was not sent a copy of the original remedial notice and could not be expected to know about it. Someone would normally be expected to know about the remedial notice if they own the site and the notice is registered as a local land charge. These defences provide important safeguards against wrongful prosecution. But if allegations of any contravention of the Act are fully investigated before the case is brought to court and if any prosecution is focused on the person who has responsibility for the hedge, it should not be necessary for people to have to resort to them.

Other mitigating factors or explanation put forward by the person allegedly responsible for the offence (e.g. lack of financial or physical resources to carry out the works to the hedge, existence of restrictive covenant) would need to be taken into account in determining whether prosecution would be appropriate. Ultimately, it is for the person accused of the offence to prove their case to the court. As noted in paragraph 5.100, it is possible that, where a covenant gives rise to a clear nuisance, the courts might attach little weight to it.

Enforcement Procedures

It is for each Council to determine their policy and approach to enforcing remedial notices, depending on available resources. Most enforcement activity is, however, likely to be reactive mainly responding to neighbours’ complaints of alleged failure to comply with the requirements of a remedial notice.

Enforcement action is nearly always labour-intensive. Even if Councils adopt a reactive approach, it would still be necessary to consider establishing a set of priorities to help them manage these cases effectively. The degree of harm caused by the alleged failure might be one criterion that could be used. For example, failing to carry out the initial one-off works, necessary to remedy the adverse effect of the hedge, within the time allowed might be considered more serious than allowing the hedge to grow just above the specified height between annual trims.

The general steps to be taken in evaluating and determining enforcement action should be:

• acknowledge the complaint of the alleged failure to comply with the requirements of a remedial notice;
• investigate the current facts and the case history;
• prepare a situation report, including any legal advice on issues raised by the investigation;
• submit to the relevant decision-maker within the Council a considered recommendation on the enforcement action to be taken;
• record and implement this decision;
• report the outcome to the person who brought the matter to the Council’s attention;
• monitor the practical effect of implementing the decision;
• review the need for possible further enforcement action.

Documenting the Case

Throughout the enforcement process it is essential to maintain a complete, accurate and up to date record of all investigation carried out and assessment of the results. This is important even in those cases where the initial decision is not to take formal enforcement action. If it is necessary to return to the case in the future, officers dealing with it will be able quickly to establish the relevant facts and history.

The case record should contain the following information:

• the alleged contravention of a remedial notice, as notified to the Council;
• the date of this first notification;
• the identity of the person making the claim;
• the address of the land where the hedge is situated;
• the identity of the owner and any separate occupier of the land in question;
• brief description of the hedge, including any relevant photographs;
• the alleged contravention, as established by the Council’s officers following initial investigations;
• summary of the factual evidence;
• summary of the case history;
• summary of recommendations on enforcement action;
• details of implementation of the Council’s decision. These will vary according to the circumstances but – where they fall short of prosecution – might include:
• date that the owner and occupier of the land where the hedge is situated are notified of the Council’s decision;
• summary of required steps;
• time limit set for compliance;
• result of the action taken by the Council;
• legal action;
• exercise of default powers;
• recovery of costs;
• summary of any subsequent monitoring of the situation.

Investigations

On receiving a complaint that the actions required under a remedial notice have not been carried out, the Council should investigate the allegations. They may wish to visit the site to collect and verify information.

If the results of these initial investigations suggest that an offence has occurred, the Council should contact the owner and occupier of the land where the hedge is situated, inform them of the alleged breach and seek their comments.

Under the Police and Criminal Evidence Act 1984, any officers – not just the police – who are responsible for investigating offences or charging offenders must have regard to the code of practice issued under the Act. The code sets out when it is necessary to caution people suspected of committing an offence, and how a caution should be given. The Council’s legal department should be able to advise officers how the code should be applied in practice to possible offences under this Act.

A complete documentary record of all investigations is essential (see the section above on Documenting the Case). Wherever possible, it should include photographic records which are signed and dated by the person taking the photographs. All photographic records should be accompanied by a location plan showing where each photograph was taken from. It is good practice for Councils to inform the person who made the complaint what, if any, action they are taking to enforce the requirements of the remedial notice and the reasons for their decision.

Enforcement Action

What enforcement action, or combination of actions, Councils pursue will depend on the particular circumstances of the case. The main aim of any enforcement action should be to put right the harm that has been caused. This means identifying the measures most likely to ensure that the owner or occupier of the land in question carries out the required works to the hedge.

Informal Action

In some cases, Councils might wish to hold an informal interview with the person to encourage them to comply with the remedial notice; or send them a formal warning letter of the consequences of their continuing failure to act. Where investigations show that the owner or occupier was unaware of the existence of a remedial notice, the Council should provide them with a copy and should normally give them more time to comply. 

Prosecutions

The decision to prosecute an individual is a serious step. And each case must be considered on its facts and merits. The Code for Crown Prosecutors (issued by the Director of Public Prosecutions under section 10 of the Prosecution of Offences Act 1985) sets out a two stage test for use in deciding whether to mount a prosecution. The first stage involves consideration of the evidence, involving an evaluation of the strengths and weaknesses of the cases of both the prosecution and defence, to determine whether there is a realistic prospect of conviction. If this test is satisfied, the next stage is to look at whether a prosecution would be in the public interest. The Code identifies some common public interest factors both in favour of, and against, prosecution.

Several of these principles might, depending on the circumstances of the particular case, be relevant to high hedges cases. For example:

• among the public interest factors in favour of prosecution:
• the defendant’s previous convictions or cautions are relevant to the present offence;
• there are grounds for believing that the offence is likely to be continued or repeated, eg by a history of recurring conduct;
• a prosecution would have a significant positive impact on maintaining community confidence;
• among the public interest factors militating against prosecution:
• the offence was committed as a result of a genuine mistake or misunderstanding;
• the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement;
• the defendant is elderly or is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is real possibility that it may be repeated;
• the defendant has put right the loss or harm that was caused.

Although the Code was written for Crown Prosecutors, Councils might wish to consider applying the same principles and approach to any potential prosecution under the Act. If the Council consider that prosecution is the most appropriate way to secure compliance with a remedial notice, they will need evidence to show “beyond reasonable doubt” – the criminal standard of proof – that a requirement in the notice has been, or is being, contravened and so an offence has occurred (see the sections above on Offences and Defences).

The magistrates’ courts are likely to have little practical experience of such cases and so it will be helpful for the Council’s prosecutor to explain fully to the court the context in which the alleged offence has occurred. Depending on the circumstances, the following approach might help the court to appreciate the strength of the prosecution’s case:

• explain that the provisions of section 77 of the Act make it an offence to contravene the requirements of a remedial notice;
• describe the nature of the particular offence, in factual terms;
• outline the actions taken by the Council to secure compliance with the remedial notice.

Council Intervention

Councils have the power to enter the land where the hedge is situated and carry out the works specified in the remedial notice, if the owner or occupier of the land fails to comply with its requirements. Unlike the owner or occupier of the site with the hedge, the Council cannot exceed the requirements set out in the remedial notice.

It is for Councils to consider whether they use these powers to carry out the works specified in the remedial notice; if so, when they employ them; and whether this is done instead of, or alongside, a prosecution. There is no requirement or obligation on Councils to intervene. As a result, there should not be a general expectation that Councils will step in, nor that they will do so immediately after a breach of a remedial notice occurs.

Where the Council decide to intervene, their action should be planned, organised and implemented with the utmost care. The owner or occupier of the land where the hedge is situated might strongly resent, and possibly try to prevent, the Council carrying out the necessary works. Anyone who wilfully obstructs an officer, or other person authorised by the Council, from entering the site in question and taking the necessary action is guilty of an offence. On conviction in the magistrates’ court, they could be liable to a level 3 fine (up to £1,000).

Among the practical matters that Councils would need to consider when preparing to intervene are:

• what exactly needs to be done in order to enforce the requirements of the remedial notice;
• what equipment will be needed;
• the physical characteristics and constraints of the site;
• the risks to operatives carrying out the work and how to ensure compliance with relevant health and safety regulations;
• whether a breach of the peace is expected and whether the co-operation of the local police should be sought;
• how long the work is likely to take and what is the best time of day to do it;
• who has the necessary skills – the Council’s own staff or a private contractor.

Councils are required to give 7 days’ notice of their intention to go in and do the necessary work. If they anticipate that the owner or occupier of the land where the hedge is situated might attempt to obstruct them, it is good practice for the Council to warn those concerned that they could face criminal prosecution.

Where necessary, the Council may also use a vehicle to enter the land. Otherwise, the general powers relating to entry to land apply.

The costs of this work can be recovered from the owner or occupier of the land. This includes the cost of dealing with any waste removed from the site at the owner or occupier’s request. Otherwise, waste may be left on the site, though Council operatives should ensure it is suitably stacked so that it does not present a hazard. Any unpaid expenses would (until recovered) be registered as a charge on the property. This means that the Council should get their money back when the property is sold, if not before.

Appendix 1

List of Hedgerow Woody Species from Schedule 3 of the Hedgerow Regulations 1997

• Alder (Alnus glutinosa)
• Apple, Crab (Malus sylvestris)
• Ash (Fraxinus excelsior)
• Aspen (Populus tremula)
• Beech (Fragus sylvatica)
• Birch, downy (Betula pubescens)
• Birch, Silver (Betula pendula)
• Black-poplar (Pupulus nigra sub-species)

Contact Details

If you need any further assistance, please do not hesitate to contact the Planning Enforcement Team by email: planning-enforcement@rother.gov.uk