Craig McCann | Trainee Solicitor

When you can’t see the wood for the trees

A recent case considered the position that if there were a number of rows of  trees planted – could it be considered to be an area of woodland as opposed to a ‘high hedge’? Brian Rizza petitioned for judicial review of the High Hedge Notice served on him by Highland Council.

The Reporter for Highland Council had found that there were 17 trees planted within Mr Rizza’s property at the boundary with his neighbour’s property. There were 4 rows of trees, a group of trees and 2 outliers. The height of the trees ranged from 15 to 22 metres. The Reporter found that the trees were overshadowing the neighbour’s garden and also rooms to the rear of the neighbour’s property.

In terms of the High Hedges (Scotland) Act 2013 a ‘high hedge’ is defined as ‘a hedge which (a) is formed wholly or mainly by a row of 2 or more trees or shrubs, (b) rises to a height of more than 2 metres above ground level, and (c) forms a barrier to light.’

Mr Rizza sought to argue that the 2013 Act would only apply to a single row of trees and that if it were to apply to multiple rows then that would lead to an absurd result that a hedge would be indistinguishable from woodland.

The Judge found that the Reporter had not erred in law by finding that a collection of trees in 4 identifiable rows was a ‘high hedge’ and that it would be perverse and absurd if the owner of a hedge were able to avoid a finding that it was a high hedge because he had planted more than one row of trees or shrubs so as to achieve a more dense and effective screen.  Accordingly the Notice to restrict the height of the trees to 2 metres was upheld.

Craig McCann

Craig McCann

Dispute Resolution Team

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