R(Pelling) v Newham LBC  EWHC 3265 (Admin), 28.10.2011 (not on Bailii yet)
It’s fair to say that I have an unnatural (purely) academic interest in high hedges – my colleagues laugh every time I try to discuss it sensibly. I’ve always found it discursively significant that provisions about high hedges were included in the Anti-Social Behaviour Act 2003. Anyway, there are others who have a more practical interest in them too, as can be seen from the various television programmes which grace our screens about them (often in the vein of the “neighbours from hell”). Whether or not Dr Pelling has appeared in those programmes, I do not know, but he is (I gather) a professional McKenzie friend in certain proceedings. Whether or not he is the Dr Pelling who has gained a certain notoriety in family proceedings, again I do not know. But he will forever be known as the Dr Pelling who established that, when a local authority seeks to exercise its powers under the 2003 Act in relation to high hedges, it is required to do so fairly because it potentially engages the civil rights and obligations of land owners in a procedure which ultimately might lead to criminal law sanctions.
As any reader of the 2003 Act, Part 8 (which is concerned with high hedges), will know, it is sparsely furnished but contains provisions designed to deal with the adverse effects of the height of a high hedge on an owner/occupier of domestic property. The Act contains a procedure for dealing with such complaints and requiring action by the perpetrator who has rights of appeal. As I understand it, some people love their Leylandii and other high hedges so much they don’t want to chop them down or not by much (personally, I can’t stand them, but that’s because they’re prickly and unsightly). Now, without getting too complicated about the facts, the local authority did not acquit themselves particularly admirably. They issued a remedial notice on Dr Pelling in breach of a restraining order made by King J, without the further investigation they had previously promised, and di not explain why they had reached the conclusion of adverse effect on the neighbour. They then sought to defend their position (in their acknowledgement of service) in relation to the complaint by arguing in essence that there was no requirement on them to give Dr Pelling the right to make representations or to a hearing before the decision to serve a remedial notice (a position from which they rightly resiled at the hearing). Had they said that the application was premature and unnecessary, as Dr Pelling would have had an opportunity to present his case, that would have been the end of the matter, but that was not their position ().
Dr Pelling’s argument that Article 6 was engaged and should be applied in full Le Compte force was rejected as was his next submission that an oral investigation/submissions/cross-examination was required. As Blake J put it:
I am satisfied that Parliament, in this context, intended a reasonably simple, reasonably speedy and very focussed procedure to examine whether indeed hedges that were over two metres in height, and therefore falling within the definition of “high hedge”, adversely affect reasonable enjoyment of property by another. ()
However, the common law duty of fairness was relevant and should be read into the statutory procedure, not least because that was what the extra statutory guidance suggested (and now not disputed by the council. Although this (of course) is context specific, in this particular case, it was suggested that fairness involved: information as to why it was said that the hedge was adversely interfering with the neighbour’s enjoyment; giving him the opportunity to address those matters, supply any relevant information, submit further evidence (including an expert report!) before the decision to issue enforcement action is made; and explain why they reached the decision they did so that he would know whether there was a case to appeal (at ).