Tuesday, 30 June 2009

HIGH HEDGES (including specimen letter of complaint to neighbour)

High hedges have been the source of much litigation. The main reason is that there is a clash of interests: one neighbour wants more privacy so grows his hedge height, the other neighbour wants light so wants to reduce the hedge height. The position in common law is that although you occasionally see an express right to light given in deeds, such a right is rarely implied in law, and where it is it is usually in a city environment where tall buildings are in close proximity and certainly not in your average domestic property context. You can take action in other situations which depend on the laws of nuisance or trespass e.g. if roots from a neighbour's tree cause subsidence you might claim damages and/or an injunction in nuisance, or if branches from a neighbour's tree overhang, they can be a trespass in your airspace and you can lop them off and put them over the fence. But at common law at least there is no general right to insist that your neighbour reduces the height of his hedge to give you more light to your property. However as a result of a number of fraught cases which might loosely be put under the heading of 'Battles of the Leylandii', the government enacted Part 8 of the Anti-Social Behaviour Act 2003 http://www.opsi.gov.uk/acts/acts2003/ukpga_20030038_en_1 . This gives Local Authorities powers to require the owner/occupier of premises to reduce the height of a High Hedge which adversely effects the reasonable enjoyment of a neighbour's property. The term High Hedge means a barrier to light and access formed wholly or predominantly by a line of 2 or more evergreens, and rises to a height of over 2 metres above ground level. If there are gaps in a hedge it may not qualify. If satisfied that there is a High Hedge as defined and that the neighbouring property is adversely affected, and upon completion of a complaint form and payment of the fee (currently £350, £175 for those on means-tested benefits), the Local Authority can issue a Remedial Notice requiring the owner to take steps to alleviate which usually means cutting the height of the hedge, although not to under the magic 2 metre threshold. Failure to abide by the Notice can result in a fine by the magistrates court, in effect making Leylandii abuse a criminal offence. However, the Council cannot accept a complaint unless parties have first tried, unsuccessfully, to settle a dispute without Council input. Evidence must be produced of such efforts. If you are the aggrieved person the kind of letter you might consider sending is as follows:

Dear Mr Hedges,

I enjoyed our talk the other day. I hope you enjoyed the lettuces from my patch!

I am sorry to write to you about what we spoke about then but I do need a response from you. I am only asking you please to discuss with me some lopping of your hedge by an agreed amount so as to allow some natural light to come into my living room, whilst preserving a height which will afford you all the privacy you reasonably require. Could we arrange another time to meet and discuss? I am advised that if we do not agree I can ask the Council to investigate which may result in their serving what is known as a Remedial Notice which would require you to reduce the height possibly as low as 2 metres. I do not want to invoke this procedure unless we absolutely cannot agree and I hope we can work together on this point.

Please give me a ring or email me. I look forward to hearing from you.

Yours truly,


Happy hedge trimming!

Tuesday, 16 June 2009

Travellers' evictions

I have just completed a trespass case arising out of travellers squatting on some open land owned by my clients. I tend to get a number of these cases in the summer as travelling communities move around, perhaps looking for new work.

There are whole sections of the Civil Procedure Rules (CPR) devoted to the procedure for these kind of cases. The procedure can be quite fiddly and needs to be followed to the letter. There is a uniqueness insofar as the action is usually against 'persons unknown' and this has the consequence that there are peculiar rules for service of the court process. As far as open land is concerned service must be 'on a part of the land so that it is clearly visible' or by placing stakes in the land for the purpose of attaching the court process to this end. The latter was not possible in my recent case as the car park was tarmaced but we were able to affix to a nearby perimeter fence. The are rules about clear days of service before the hearing: 2 days (excluding weekends) is required for open (i.e. non-residential) land.

Courts can usually be persuaded to list these cases for hearing quite quickly, although a good relationship with the local court always helps! If the judge is satisfied that the procedure has been properly followed, the usual order is 'possession forthwith' but that is not the end of it as the order then has to be executed. The court bailiff has to be instructed by issue of a warrant. He will then visit to give formal notice of the actual eviction date to the trespassers. Usually the site is vacated just before this as the travellers move on elsewhere. I did have one case a few years ago when the same travellers moved to another client's site so I had two cases in quick succession!

It is very difficult of course to secure open land (which is why it is called open!) so although security measures will minimise the risk to some extent for farmers, councils and other major landowners, these type of cases are (literally!) something of an occupational hazard from time to time. My advice to landowners is see your solicitor immediately to get things going even if the travellers have agreed to leave in a few days as these promises regrettably are not always kept and precious time is lost. It does not mean that you should not keep a channel of communication going: rarely are travellers violent or abusive (whatever you may think of the morality of their actions) but they tend to know a certain amount about the law and may exploit your lack of it and particular any delay. They will often go, in short, only just before they have to go by law without being thrown off.

Nor is there any point in relying on the police. Whilst you should inform them to 'avoid a breach of a peace' their powers are limited. They can usually only rely on powers of persuasion, which causes further time to be lost, either because they do not have the powers, or where they do have the powers they lack the immediate resources. Unless there is some disturbance or damage, clear powers only exist for the police to move in when there are 6 or more vehicles and usually the problem is with smaller groups than this. http://www.urban75.org/legal/cja.html takes you to a ravers/squatters site where the police powers are summarised reasonably accurately as far as I have read it!

If you are the landowner, at no point take the law into your own hands and attempt force to evict. You could well commit a criminal offence yourself just by so doing. Nor should you do anything to put yourself at risk. This is surely a job for the experts.

Tuesday, 2 June 2009

Treasure Trove

Have you ever wondered what is the law relating to who owns hidden treasure which is later discovered? This is always a live issue, particularly in the summer months as enthusiasts trace over beaches with their metal detectors.

The law on this goes back to the time of Edward the Confessor, so is originally very much part of the ancient common law. To be treasure in the first place, objects had to be more than 50% gold or silver content. Next there had to be something called animus revocandi meaning it was hidden with 'intention to recover' (I love it when I can introduce legal Latin phrases - such a shame that modern law discourages them: they are so precise!). If this condition was established the Crown i.e. the state was deemed to own the treasure. Conversely, this meant that if the treasure was merely lost or abandoned it could not be treasure trove. There was then complicated law as to who could claim it: the original owner would still have the first ('superior') claim but subject to this the finder might be able to claim if he was legitimately on the land, but otherwise the booty fell to the landowner. In the case of the Sutton Hoo finds in 1939, close to home, they were not deemed treasure trove as there was no animus revocandi: it being presumed that as it was a burial site the treasure were not meant to be recovered, at least in this life! So Mrs Pretty , the landowner (I believe from the family who founded our rival firm, Prettys) had the best claim available, although she played fair and bequested the treasure to the nation in 1942. Incidentally as the essence of animus revocandi is hiding with intention to recover, if they true owner ever showed he could of course claim even if it was deemed treasure trove but this never happens as a fortiori so to speak they were dead long ago.

The Crown would pay a reward representing market value to the deemed finder. If there was a dispute about whether treasure was indeed trove a coroner's court had jurisdiction.
I recall that my old partner, Michael Sinclair, had a treasure trove case once under the old common law about who was entitled to what but sadly it is so long ago I cannot recall the facts of the case and he has now sailed off on his boat round the world so unfortunately I have no way of prompting my memory which is a shame.

Common law of a thousand years was changed by the Treasure Act 1996. The definition of treasure itself is changed. The new definition is complicated (statutes always complicate things). The Act can be found at http://www.opsi.gov.uk/acts/acts1996/ukpga_19960024_en_1 if you wish to see it in full but suffice to say here that treasure is now not just works containing gold and silver but also some works designated by the Secretary of State as of outstanding historical, archaeological or cultural importance' (prehistoric finds have been so designated). Any hidden treasure so defined now - even if lost or abandoned with not intention to recover - belongs to the Crown if the true owner is not around. As before the coroner must be informed of finds - it's an offence not to do so - and has jurisdiction by inquest over treasure trove. The Secretary of State for Culture and Sport (more power to Andy Burnham) decides whether to transfer to the Crown i.e. put in a museum, and the reward, which can now, to reflect the sad demise of our old friend animus revocandi, be split between finder and landowner.