Alwyn Thomas, property law specialist at Harding Evans Solicitors peers through the branches of the Anti-Social Behaviour Act 2003

As a property lawyer for the last 24 years I have come across numerous examples of neighbours falling out with each other over the alleged nuisance caused by high hedges and trees.

New controls on high hedges will come into force later this year when part 8 of the Anti-Social Behaviour Act 2003 is enacted.

Until now, if your neighbour had an unduly high hedge you were left to wrestle with the difficult legal concepts of interference with the right to light or perhaps trespass to land in cases where branches and roots interfered with your property.

Now under the new legislation, any owner or occupier of domestic property (not commercial property) will be able to make a complaint to the Council that the “reasonable enjoyment” of their property has been adversely affected by the height of a hedge growing on neighbouring land.

The Council will then have to consider all relevant factors such as the views of the owner of the hedge and the effect of the hedge on the wider amenity of the area.

The Council will have the power to issue a Remedial Notice requiring the owner of the hedge to carry out works within a certain timescale to reduce the height of the hedge. If the owner does not carry out these works then the Council has the power to do the work themselves and recover the costs from the owner of the hedge.

The Council are likely to act in these circumstances only as a last resort. They will expect there to have been reasonable attempts to resolve the problem by negotiation and, in any event, the Council will not become involved unless the hedge is at least 2 metres high.

A hedge is defined in the legislation as comprising two or more evergreen or semi-evergreen shrubs – so the legislation will not apply to a single tall tree.

Just how willing the Council will be to get involved in neighbour disputes of this nature remains to be seen. Councils may well view this extra responsibility as a further unwanted burden at a time when they are bombarded with fresh legislation from government on a regular basis. However the Act should provide recourse for you if your neighbours’ conifers now resemble a tropical rain forest.

Another topical cause of nuisance today is flooding. What happens if another land owner builds flood defences which then cause your land to be flooded? Do you have a remedy against that other landowner – or can he be selfish in protecting his property and at the same time flooding yours?

In a recent case a Council removed some slagheaps and deposited the spoil on a sports field that had previously been liable to flooding. By raising the height of the field the Council solved its flooding problem – but created a new flooding problem for householders further down the valley because floodwaters that would previously have gone onto the sports field now had nowhere else to escape. Those affected householders sued the Council for nuisance because of the flooding.

Surprisingly, the householders lost because the Court of Appeal applied an ancient legal doctrine of “common enemy”. This says that a landowner may erect such defences for his land leaving it to others to protect themselves from the “common enemy”. In order words, one landowner can erect flood defences even though that will result in other landowners being flooded!

This is a surprisingly harsh decision when you bear in mind that the householders have no way of protecting themselves but this is currently the law. It is therefore prudent to make enquiries concerning potential flooding prior to purchasing any property.