Hedging its bets

Campaigners for legal controls on "neighbour nuisance" high hedges went to lobby MSPs this week in an attempt to get some long-awaited action on the subject.

Their impatience is understandable. Almost 10 years ago the then Scottish Executive, in the early months of the Parliament, issued a consultation, following which it concluded that the best way forward might be a member's bill, which it indicated it would support. Scott Barrie took this up and between 2002 and 2007 made three attempts to bring in a bill; each fell by the wayside for different reasons.

Now, a decade after the cycle started, the Scottish Government has published... another consultation. (It says it does not have access to the responses to Mr Barrie's exercise, and especially as a minority administration, needs to evaluate the current situation for itself.) Meanwhile England & Wales, where admittedly the problem seems to have been more widespread, has had legislation since 2003.

One can detect from our minister's paper a certain lack of enthusiasm for taking action. Doing nothing "could be the default position" unless the Government is persuaded that there are serious cases requiring action. Anything requiring legislation, we are warned, might have to wait a long time to find a place in the queue. And it realy does not wish to place extra burdens on hard pressed local authorities (fair enough), or "already stretched" sheriff courts (doubtful, given the number of likely cases, and not a consideration that has held the Parliament from legislating in most other areas).

But for those who do find themselves without a remedy for what may be malicious actions by neighbours, I could well understand if they feel the need to sound off to MSPs after all this time. We can certainly hope that it will not take a legislative sledgehammer to crack this particular nut, but can we not come up with something reasonably straightforward?

Since we are essentially talking about a property dispute between neighbours, it should not take an elaborate mechanism of local authority powers to provide a solution. The consultation paper indeed appears to perfer a private remedy, and encourages solicitors to think in terms of title conditions when drawing up new deeds; but that will be little help with existing titles or disputes. What about a statutory deemed condition? The English law prohibits interference with a neighbour's reasonable enjoyment of their own property. That would seem a good starting point, and guidelines could be drawn up while leaving the final decision, if enforcement action is needed, to the sheriff or Lands Tribunal.

At the recent Devolution Conference organised by the Law Society of Scotland, the politicians present congratulated themselves that the Holyrood Parliament is much closer to the people than its Westminster counterpart was or is. A pity then that it has taken them so long to address a short, sharp issue such as this: a solution should not be beyond the wit even of a small committee to devise.