QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF PELLING||Claimant|
|NEWHAM LONDON BOROUGH COUNCIL||Defendant|
|CHRISTINE MARGARET HODGSON||Interested Party|
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Mr A Goudie (Instructed by Newham London Borough Council) appeared on behalf of the Defendant
The Interested Party did not appear and was not represented
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MR JUSTICE BLAKE:
"(1) This Part applies to a complaint which —
(a) is made for the purposes of this Part by an owner or occupier of a domestic property; and
(b) 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."
"High hedge" is defined in section 66. I need not read the definition in this section. It is common ground that the privet hedge that exists is a high hedge, although it now has the appearance of a tree since its height is something in the region of 6 metres (20 feet) or so, according to photographs taken in August 2011.
"(1) This section has effect where a complaint to which this Part applies —
(a) is made to the relevant authority; and
(b) is accompanied by such fee (if any) as the authority may determine.
(2) If the authority consider -
(a) that the complainant has not taken all reasonable steps to resolve the matters complained of without proceeding by way of such a complaint to the authority, or
(b) that the complaint is frivolous or vexatious, the authority may decide that the complaint should not be proceeded with.
(3) If the authority do not so decide, they must decide —
(a) whether the height of the high hedge specified in the complaint is adversely affecting the complainant's reasonable enjoyment of the domestic property so specified; and
(b) if so, what action (if any) should be taken in relation to that hedge, in pursuance of a remedial notice under section 69, with a view to remedying the adverse effect or preventing its recurrence."
"An appeal under section 71(1) of the Act against the issue of a remedial notice may be made on any of the following grounds —
(a) that the height of the high hedge specified in the remedial notice is not adversely affecting the complainant's reasonable enjoyment of the domestic property so specified;
(b)that the remedial action or preventative action, or both (as the case may be) specified in the remedial notice is insufficient to remedy the adverse effect of the high hedge on the complainant's reasonable enjoyment of the domestic property so specified or to prevent its recurrence;
(c)that the remedial action or preventative action, or both (as the case may be) specified in the remedial notice exceeds what is necessary or appropriate to remedy the adverse effect of the high hedge or to prevent its recurrence;
(d)that the period specified in the remedial notice for taking the initial action so specified falls short of what should reasonably be allowed."
"Should the hedge exceed the legal limit of 2 metres, the officers will seek to resolve this matter initially through mediation. However, should this not be possible, a Remedial Notice may be served upon you under section 69 ..."
However, the letter also said:
"As part of the investigation that the Council must undertake to comply with its statutory duty, officers from the Crime and Anti-Social Behaviour Service accompanied by a Planning Enforcement officer will visit your premises on 14 January 2009 ... to view the high hedge complained of, and its surroundings, to establish whether the hedge adversely affects the reasonable enjoyment of neighbouring premises."
"The officers confirmed that hedge is overgrown ... This overgrowth may be adversely affecting the reasonable enjoyment of [the neighbour's property]."
The council offered mediation but said:
"I should advise if we are unable to pursue this route the Council will not have any choice other than to make arrangements to formally assess and measure the hedge. The outcome of this action could be to serve a formal notice on you requiring steps to be taken to reduce the height of the hedge to an acceptable level."
"In response to your observations ... the council would disclose all relevant documents if or when it decided to take the legal route in resolving this long standing issue, offering you the opportunity for full representation.
"The term 'overgrown' used in my letter comes from the officer's observation describing the current state of the hedge."
The legal route is to be understood as the alternative to mediation and the route that would lead to a notice under part 8 of the Anti-social Behaviour Act.
"Following this I can inform you that we are now assessing this complaint. It is for us to decide whether this hedge is adversely affecting the reasonable enjoyment of your neighbour's property and, if so, what action -- if any -- should be taken to remedy the situation or prevent it happening again. The council have to weigh up all relevant information before reaching a fair and balanced decision. Collecting evidence from you and your neighbour may be required as too will a site visit. This will make sure the Council have the information they need to make the right decision.
"There is no set deadline for the Council to decide your complaint, but I would hope that we will be able to get an answer to you by at least the end of June 2009."
(i) The council is bound to investigate the complaint.
(ii) The authority to deal with high hedge complaints is delegated to the Crime and Anti-social Behaviour Service.
(iii) As to disclosure,
"The current complaint is subject to prescribed procedures by statute which incorporate an appeal process should a Remedial Notice be served. Significant time has elapsed since the complaint dated 2006 was received by the Council. However, I will pass your letters ... to the Council's Information Governance Team [in respect of] the Freedom of Information Act."
(iv) The procedures are prescribed by statute which incorporate an appeal process and are Article 6 compliant.
"A complaint has been made to the Council regarding a high hedge comprised within the land at 3 Avenue Road, Forest Gate [Dr Pelling's premises].
"The council has determined that the hedge in question is adversely affecting the complainant's reasonable enjoyment of the property at 5 Avenue Road ... and that remedial work is necessary to remedy the adverse effect and preventing its recurrence.
"As a consequence, the enclosed remedial notice requires you to take the action as specified in the notice.
"You have the right of appeal against the remedial notice, details of which are stated in the notice."
The remedial notice was attached requiring things to be done within four months and then further things to be done within ten months.
"5.34 The Act does not specify the procedure that Councils must follow in determining complaints. But they should take into account all relevant factors and should assess each case on its particular merits. They will need, therefore, to gather information about the hedge and its effect on both the complainant and the person occupying the land where the hedge is situated. It is suggested that the necessary information is collected through an exchange of representations and a visit to the site.
"5.37 The Act requires all these people to be notified of the decision on a complaint, and so they should all play an equal part in the process leading to that decision. References to the main parties in the rest of this and subsequent Chapters include all the above. In particular, it is important that the main parties are given copies of all submissions made to the Council so that the process is open and transparent.
"5.39 Having satisfied themselves that the complaint is one they can deal with, the Council should normally send a letter of acknowledgement to the complainant giving the name and contact details of the officer dealing with the case. The letter should also explain briefly the procedure that the Council will follow. In particular, it should make clear that comments will be sought from the owner and occupier of the land where the hedge is situated and that the Council intends to visit the site. A sample letter is in the Appendix.
"5.40 The Council should then write to everyone who owns and occupies the land where the hedge is situated, notifying them formally that the Council are considering a complaint about their hedge. The complainant should have sent them a copy of the complaint at the same time as it was submitted to the Council and so the approach from the Council should not come as a surprise.
"5.41 The letter should explain briefly the procedure that the Council will follow, including that the Council intends to visit the site. In particular, it should invite the owner and occupier of the land where the hedge is situated to comment on the points raised by the complainant and to provide any additional information that they wish the Council to consider. Copies of these papers should be sent to the complainant at the same time as they are submitted to the Council. The Council might wish to seek confirmation this has been done.
"5.86 Factors that might be taken into account include how close the hedge is to buildings; the height and length of the hedge; its bulk and mass; and the area that it covers compared with that of the garden. The immediate surroundings, especially what else borders the property, and the general characteristics of the area might also be relevant. For example, the presence of other hedges and their impact; other buildings or features which, without the hedge, might be visually intrusive; whether the area is characterised by a sense of openness. Just because trees in the hedge are taller than neighbouring buildings will not necessarily be material.
"5.87 The importance of these factors, and their effect on the reasonable enjoyment of the property will vary according to the circumstances. As a general rule, however, it is not reasonable for someone to expect to see beyond the hedge to a particular landscape, seascape or object, such as an attractive building. On the other hand, it might be reasonable to expect that a property should not suffer serious visual intrusion, which has an oppressive effect on living conditions. Equally, if the surrounding development is characterised by openness, it might be reasonable to expect that the property should not be unduly enclosed by a high hedge.
"5.88 When assessing these or other factors, the effect of any gaps in the hedge should – where relevant – be taken into account. The extent of any gaps and their position in the hedge could be material. In some cases, the depth of the hedge might mean that gaps have little appreciable effect. In others, especially where the canopy is raised, the impact could be significant.
"5.105 Councils are advised to keep a clear record of how they reach their decision, to inform the decision letter and for use in any subsequent appeal. They might wish to prepare a report, in a standard format, which could be appended to the decision letter. This would help to provide assurance to the main parties that their representations and other information provided have been fully considered and demonstrate how they have been assessed. Such a report might include the following:
- A description of the hedge and its surroundings;
- Relevant policies or other legislation that might apply (eg tree preservation order, conservation area, local Biodiversity Action Plan);
- Case for the complainant;
- Case for the owner or occupier of the land where the hedge is situated;
- Representations received from anyone else and the results of any consultations carried out;
- Appraisal of the evidence;
- Conclusions and recommendation."
" Section 68 of the 2003 Act prescribes the procedure that must be complied with where a complaint is received...
" Part 8 of the 2003 Act does not require a local authority to provide the claimant to an opportunity to make representations or be afforded a hearing before a decision is made to serve a remedial notice as soon as is reasonably practicable...
" The 2003 Act provides the recipient of a remedial notice with a right of appeal under section 71.
" The appeal against a remedial notice is to the planning inspectorate and independent of the local authority that issues the notice and therefore is compliant with the Human Rights Act 1998 and Article 6."
I therefore conclude that the full panoply of the Article 6 civil fair hearing rights contained in cases such as Albert and Le Compte are inapplicable to a decision of this sort that remains a public law administrative decision, albeit upon complaint. I do not accept that this was a quasi judicial decision by a local authority of a private law dispute between neighbours. It is not a form of proceeding equivalent to a nuisance action heard in the County Court. Although I recognise that there are a number of aspects of the public law procedure that are similar to matters which might be the subject of a private law claim for damages and an injunction.
(i) Some information as to why it is said that the hedge in question is adversely interfering with the neighbour's enjoyment of land;
(ii) Affording the person on whose land the disputed hedge is located the opportunity to address those matters, supply any relevant information, and submit further evidence, possibly even including an expert's assessment of the matter, to the decision maker before a decision is made to issue enforcement action.
(iii) The council should explain why they have reached the decision that they have, so that the person concerned can know whether there is a case to appeal and, if so, what the appeal should concern.
MR GOUDIE: Just for the avoidance of doubt, the order made by King J is discharged. I know that it was renewed -- the interim order.
MR JUSTICE BLAKE: I thought Mitting J discharged it.
THE CLAIMANT: He did. No, it wasn't reinstated.
MR GOUDIE: My apologies.
MR JUSTICE BLAKE: He discharged it. You have held your hand since July simply because it was sensible to do so, rather than because you were ordered to do so.
THE CLAIMANT: In fact, they wrote a letter saying that they would (Inaudible), so that was sufficient. So no need for continuation --
MR JUSTICE BLAKE: No, if you can agree things, it is much better to agree them rather than come to this court.
THE CLAIMANT: My Lord, I am going to ask for leave to appeal. I'm not necessarily going to appeal, it's just to reserve my position.
MR JUSTICE BLAKE: Of course, yes, you may certainly ask for permission to appeal and I will refuse you such permission on the basis that it would be disproportionate and I do not consider that it has reasonable prospects of success. I will fill out a form.
THE CLAIMANT: Yes, there is a form.
MR JUSTICE BLAKE: It will be filled out in due course.
THE CLAIMANT: That is leave to appeal, and then of course there is the question of costs.
MR JUSTICE BLAKE: Yes, you have put in a schedule of your costs but before we get down to that, what should the costs be in principle? You have succeeded in part, but not in whole, hence your application for appeal.
THE CLAIMANT: That is correct, my Lord, but I would point out that if I had not brought this judicial review then I would not have got anything at all. The council's stance really was extreme, as I think your Lordship is clearly accepting in your judgment --
MR JUSTICE BLAKE: It is a little difficult to speculate, Dr Pelling. If you had never written your letter before action, they might have plodded on with what they said they were going to do in May, rather than, as it were, tighten up in response to your challenge and then we have a head-to-head. I do not know, but I appreciate we have gone through this history. I appreciate what happened in July was extremely unfortunate.
THE CLAIMANT: Yes, and they made their position plain in the acknowledgement of service.
MR JUSTICE BLAKE: Quite, but of course if you had not applied for judicial review there would not have been an acknowledgement of service.
THE CLAIMANT: That's true, but the evidence is that they were progressing that hold. Their way of doing things was very quickly because they said we're going to -- well, going back to the 22 May letter, "We will forward all relevant documents to you, along with the results of our assessment, by the end of June 2009. May I ask you to wait for the council's decision on this complaint before sending any further correspondence on this matter."
MR JUSTICE BLAKE: All right. What do you say you should get by way of costs?
THE CLAIMANT: Well, I submit that I should be entitled to, in all the circumstances, because --
MR JUSTICE BLAKE: Entitled to the whole of your costs?
THE CLAIMANT: Yes.
MR JUSTICE BLAKE: I think that is the bit that was missing, if we add that. Anything else you want to say about --
THE CLAIMANT: Well, yes, I just want to say it's certainly not the case that because a claimant does not succeed on every aspect of his case that his costs are reduced. I say I have substantially succeeded. I have achieved a major ruling from your Lordship, the importance of common law fairness, and there is no evidence at all that the council was ever going to apply that in my case. And now at least I have achieved the security of these principles being applied by the council, and it really was necessary to bring this claim.
MR JUSTICE BLAKE: Okay. Let us try to keep it short.
MR GOUDIE: My Lord, in respect of the costs, the council do not dispute they have lost in respect of part of Dr Pelling's claim, but in our submission the bulk of the action has been further than that on which your Lordship has ruled, and particularly the submission with respect of Article 6 and Alconbury. In the circumstances, we would not object to being ordered to pay a third of the costs that are applied for in the terms that there are, as your Lordship made judgment, three effective applications or grounds that he has relied upon, and he has been successful in respect of one of them.
MR JUSTICE BLAKE: Okay. So if we take his figures, do you have his figures.
MR GOUDIE: £1,948 (As heard).
THE CLAIMANT: My Lord, that needs a slight adjustment because, as you can see, item 15 was predicated on an assumption of a half day, literally a half day. Well, it's unfortunately turned into a whole day.
MR JUSTICE BLAKE: Well, yes, I am not sure it is going to get much adjustment for that, because I think you might have taken a bit of time.
THE CLAIMANT: Can I just add, instead of finishing at 1.00 pm, we should add at least three hours to that. Also, can I just respond to the point about one-third.
MR JUSTICE BLAKE: Yes.
THE CLAIMANT: That is superficially attractive, because there were three --
MR JUSTICE BLAKE: Why is it, on more thorough consideration, not attractive?
THE CLAIMANT: Well, I think it's really, it splits into two. I mean, there was common law fairness and Article 6. My case was either way, whether there is administrative law or not, whether Alconbury is relevant or not, my case was still that Article 6 applies and it's all based on Article 6. So you could say I have lost on the human rights part, but I have succeeded at common law, so if there is to be a division I think the proportion I should have is at least 50 per cent.
MR JUSTICE BLAKE: Thank you, I think I have probably heard enough now. I am going to award you £900 by way of costs on the summary assessment. I do that having regard to the issue of proceedings and the point at which you have succeeded, but it seems to me that a great part of the hearing and certainly the reason why it lasted more than half a day was because of broader matters on which you have not been successful.
THE CLAIMANT: My Lord, making that decision, did you appreciate that disbursements, the court fees themselves, amounted to £265?
MR JUSTICE BLAKE: I am taking the sum that you -- yes, I did. Right. Thank you very much.
THE CLAIMANT: Well, it's not quite the --
MR JUSTICE BLAKE: Anything else?
THE CLAIMANT: The costs order. Could you order that be payable within, say, 14 days or something like that?
MR GOUDIE: Twenty-eight days.
THE CLAIMANT: I've got no objection to 28 days.
MR JUSTICE BLAKE: All right.
THE CLAIMANT: Would it be possible to have a transcript of judgment at public expense?
MR JUSTICE BLAKE: I think since Langstaff J thought there was some public interest in this, it may be that there are hedge growers all over the country wanting to know and I think there is probably a case for that.
THE CLAIMANT: Thank you, and could it be ordered to be provided with expedition in case I do want to refer to --
MR JUSTICE BLAKE: Well, I do not know how long it is going to take. It seems to be reasonable expedition. It is probably not the greatest priority.
THE CLAIMANT: Thank you very much.