Judge rules 22m high trees are a hedge - and must go

Brian Rizza took issue with a Scottish Government reporter who made the ruling after concluding the trees that made up the hedge were a barrier to light which adversely affected the enjoyment of a property at 24 Drummond Circus, in Inverness, owned by Roger and Catherine Niven.

He claimed that the trees did not meet the criteria for a high hedge laid down in Scottish parliament legislation and that a reporter appointed to decide an appeal had erred in law.

The reporter carried out a site visit and saw the trees at Brian Rizza's home at Blair Lomond, in Drummond Crescent, in Inverness.

She found that 11 of them were planted in four rows with a further six in the area.

Mr Rizza raised a judicial review at the Court of Session in Edinburgh after the reporter ruled that the majority of the trees, which were 15 to 22 metres high, should be cut back to two metres.

The statute referred to a row of trees in the singular and it was argued that applying other legislation which provided that words in Holyrood legislation in the singular include the plural would produce absurd results.

There was a risk that a hedge might be formed of an indefinite number or rows and would be indistinguishable from woodland.

But a judge has rejected the contention and said that if the assessment was carried out in a way that was reasonably open to the decision maker there should be no real risk that a wood or forest was found to be a hedge.

Lady Carmichael said: "It would, however, be perverse and absurd if the owner of a hedge were able to avoid a finding that it was a high hedge because he planted more than one row of trees or shrubs so as to achieve a more dense and effective screen."

"As use of the word 'row' includes the plural, it follows that the reporter did not err in law by reason of finding that a collection of trees in four identifiable rows was a high hedge," said the judge.

Lady Carmichael said the considerations that the reporter, appointed by the Scottish Government, founded on were ones she was entitled to take into account.

The reporter was criticised for taking into account the species of tree involved.

But the judge said: "It is a matter of public notoriety that leylandii are used to form hedges. While the circumstances that leylandii are planted will not be conclusive as to whether there is a hedge, it is a relevant consideration."

The judge said: "It may well be, as the petitioner (Mr Rizza) submitted, that woodland is sometimes planted in discernible rows."

"The pattern of the planting in rows was nonetheless a relevant consideration in discerning whether the trees were a hedge. Hedges are generally planted in a line of some sort," she said.

It was argued on behalf of Mr Rizza that the reporter was irrational in ordering the identified trees to be cut back to two metres without considering the effect of one row on another and in concluding that the height reduction would not significantly alter the privacy or outlook of the hedge owner.

But Lady Carmichael said: "The reporter was deciding what action was required to remedy the adverse effects of the height of the hedge on the enjoyment of 24 Drummond Circus that its occupant could reasonably expect to have."

"Having reached the conclusion she did as to the adverse effects, it was reasonably open to her to decide that the appropriate remedy was to require the whole hedge be reduced in height," said the judge.

Mr and Mrs Niven originally applied to Highland Council in 2017 seeking that a high hedges notice be issued.

Mr Rizza subsequently appealed to the Scottish Ministers who appointed the reporter and she gave her decision in December 2018.

The reporter concluded that the high hedge was a barrier to light which impacted on the garden and the windows of rooms at the rear of 24 Drummond Circus.

ENDS