If you were asked to visualise the cause of an Anti-Social Behaviour Order, one of the last images you might think of would be the planting of few Cherry trees on a private property. However, you would be mistaken.
The final touch to the completion of the refurbishment of a fine Victorian House in Central London was the planting of four fine Cherry trees at the rear of the newly landscaped garden. Everyone was delighted with the effect, with the exception of an adjoining neighbour who complained that one of the trees blocked the window to his drawing room.
Initially, it seemed the potential claim was interference with the neighbour’s easement and “right to light.” However, this was not the case, as our client’s neighbour was basing his objection on Part 8 of the Anti-Social Behaviour Act 2003 (“the Act”), a piece of legislation (subtitled High Hedges) which was enacted in response to the growing number of problems associated with fast-growing plants, such as leylandii trees/hedges, which can be difficult to maintain and may become excessively large. This section of the Act gave local councils the power to handle complaints about such trees and high hedges and if necessary, require the owner to rectify the problem and prevent it from recurring.
Our advice to the client, in order to avoid receiving an ASBO as a result of their new planting, was to follow the provisions in the Act and take all reasonable steps to resolve the dispute before the neighbour involved the local council. The council can reject a complaint if they believe there has been little or no attempt at “self-resolution.” The council can also charge a fee for managing the complaint, so it is best to do everything one can to avoid an escalation. Official government guidance on how to settle differences in such matters without involving the local authority can be found on gov.uk.
If the matter did come before the council it would be necessary for the neighbour, as an owner of domestic property, to show the following:
If the council is satisfied that the application satisfies these criteria, and it has all the relevant information it needs to reach a fair and balanced conclusion, it will then decide whether the tree or hedge affects the reasonable enjoyment of the applicant’s home and/or garden.
A formal remedial notice would then need to be served detailing the action that must be taken and by what time. The council might further require the tree or hedge to be trimmed to a certain height. However, the council cannot order the removal of the tree or hedge or have it reduced to below two metres tall.
Failure to comply with this notice is an offence under the Anti-Social Behaviour Act which can incur a fine up to £1,000 and entitle the council to enter the property to carry out the work required.
Our client was lucky in that his trees (although over two metres in height) were deciduous and therefore would not cause a significant blockage of light for most of the year. Notwithstanding the terms of the Act and the likelihood of an ASBO being served on him was virtually nil, our advice to the client was to move the offending tree into another part of the garden as the price of good neighbourliness – and not risk the possibility of being considered “anti-social” now or in the future.