Jersey Unreported Judgments

[2009]JRC146

royal court

(Samedi Division)

28^th July 2009

Before     :

F. C. Hamon, Esq., O.B.E. Commissioner and Jurats Le Brocq and Liddiard.

 

Mrs Hobbs represented herself and her husband.

Advocate C. R. Dutôt for the Minister.

judgment

the commissioner:

1.        This is an appeal (the first of its kind) under the High Hedges (Jersey) Law 2008.  The Minister considered this particular case to be marginal, in that the hedge, comprising two large cedar trees, only just fell within the legal definition of a high hedge.  That is not so.  Article 4 of the Law says at 4(1)(a) and (b):-

"4.(1)  In this Law "high hedge" means so much of a barrier to light as (a) is formed wholly or predominately by a line of 2 or more evergreens and

(b) has a height of more than 2 metres above ground level."

2.        We have visited the site (Mrs Hobbs, her husband is unwell, had thought that the action started at 2.30 p.m. when it was due to start at 10.00 a.m. she was at home when we visited).  We were only able to see the hedge and not the loss of light of which the appellants complain, that occurring in the afternoon.  The Court also went down to the Sir Winston Churchill Park to see the trees in question.  They can be seen, but only very slightly, over the roof of the house.  The owner no longer lives at the property and the appellants do not know who occupies the property.  The owner, Mr de la Cloche, has not replied to the letters sent by the appellants and has played no part in this appeal.  He merely wishes to know the outcome.

3.        Mrs Hobbs wrote this letter (in part) on 21^st March, 2005, to Mr de la Cloche:-

"As you know we have been having a very good spell of fine weather lately and I am wondering if you have given any more thought to the trees which are shading our house.

I have always regarded the garden as an extension of our house and make continual use of it during the fine weather.  As I have mentioned, this use is now seriously curtailed because the sitting out part where we have had our meals is now completed shaded from early afternoon and the living rooms of the house are no longer sunny.  I was pleased that Melanie appreciated the position and advised me that the tree nearest the house was going to come down and that the other would be lopped or thinned out".

4.        Mr de la Cloche was approached by letter in 2004, 2005, 2006 and 2008, as was Mr de la Cloche's sister, Melanie, but no reply was received and when the appellant tried to discuss the problem face to face she was advised that Mr de la Cloche was too busy to discuss the matter.

5.        The Minister has based his decision as follows:-

"Taking all the relevant factors into account, the Minister considered that there was no justification to require the management of the trees because he considered this particular case to be marginal in that the hedge, comprising two large cedar trees, only just fell within the legal definition of a high hedge; they had some amenity value, that their impact was not that of a dense impenetrable screen to light;  and that to manage them led to some degree of risk from disease and loss."

6.        The Environment Division of the Howard Davis Farm (the Principal Ecologist) wrote to the Minister's Department as follows:-

"Wildlife value: The two trees (cedrus-atlantica-glauca) have little or no wildlife value;

The potential for reduction of height: There is not really any potential for height reduction, since it would completely ruin the look of the trees.  These trees grow very big and it won't be long before the property owner will need to remove them before they shade the whole garden where they grow as well as next door.

Implications of reduction for wildlife value: None

Other comments: Advice from a tree surgeon might be useful - the trees are already unbalanced by bad pruning."

7.        At a meeting to discuss the Arboricultural issues which was attended by Mr Kevin Pilley and Mr Nick Armstrong, the Arboricultural Officer, Mr Armstrong stated that "these two blue cedars were of high visual amenity value".  That is not understood.  The hedge cannot be seen from the road and can only be seen fragmentally from St Brelade's Bay.

8.        The Arboricultural Officer went on to say:-

"The preferred course of action, which would reduce the loss of light to the complainant whilst maintaining the amenity value of the trees would be:-

Crown thin by 25%.

Remove deadwood.

Reduce lower branches away from the neighbouring property."

9.        The High Hedge Report which the Minister considered was that Mr de la Cloche's hedge, comprising of two blue cedars was over 11 metres in height and they are now some 30-40 years old.  The appellants purchased their property some 16 years ago and we were told by Mrs Hobbs that the shade from the trees then was minimal.  As the law clearly states "if the complainant alleges that the reasonable use of all or any part of the property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person...." (our underlining).

10.      The test on appeal has been well stated in Token Ltd v Planning and Environment Committee [2001] JLR 698 at 703 by Bailhache, Bailiff:-

"The Solicitor General submitted that the decision in Fairview Farm did not entitle the Court to find that the Committee's decision was unreasonable but quash it because the Court had reached an equally reasonable but different decision.  We agree.  The Court might think that a committee's decision is mistaken, but that does not of itself entitle the Court to substitute its own decision.  The Court must form its own view of the merits, but it must reach the conclusion that the Committee's decision is not only mistaken but also unreasonable before it can intervene. To put it another way, there is a margin of appreciation before a decision which the Court thinks to be mistaken, becomes so wrong that it is, in the view of the Court, unreasonable."

11.      The Planning and Environment Department in its report says that:-

"Any hedge above a height of 3.48 metres is likely to block too much light from the complainant's dwelling and that any hedge above a height of 3.48 metres is likely to block too much light from the complainant's garden."

12.      This hedge is over 11 metres in height and the closest window on the south elevation of the property is approximately 4 metres from the boundary.

13.      Of course, the Minister cannot order the hedge to be removed but we do feel that the Minister's decision was both mistaken and unreasonable.  By Article 12 we feel that we must order the Minister to issue a remedial notice that orders Mr de la Cloche to thin the crown of the blue cedars by 25%, to remove the deadwood and reduce the lower branches away from the neighbouring property.  There should also be an annual inspection of the hedge by a qualified tree surgeon who will be able to recommend periodic pruning depending on the vigour of the trees.

Authorities

High Hedges (Jersey) Law 2008.

Token Ltd v Planning and Environment Committee [2001] JLR 698.