Pelling, R (on the application of) v Newham London Borough Council & Anor

The statutory high-hedges procedure is a public law administrative process, not an adjudication of a private nuisance claim. The full civil fair-hearing requirements under Article 6 therefore do not apply. Common law fairness nevertheless supplements the statutory scheme. Before enforcement action is taken, the affected landowner should normally receive information about the alleged adverse effect, an opportunity to respond and provide evidence, and reasons for the decision. A local authority need not provide an oral hearing, cross-examination or full civil-procedure disclosure. A written appeal to a planning inspector, together with judicial review, may provide sufficient independent scrutiny. The procedure should remain focused, comparatively brief and proportionate to the straightforward planning or environmental assessment involved.

The claimant challenged Newham London Borough Council’s proposed handling of a complaint about a high hedge under Part 8 of the Anti-social Behaviour Act 2003. The council had previously issued, and then withdrawn, a remedial notice, after issuing it in breach of an interim order and without the investigation and representations it had indicated would occur.

The claimant argued that Article 6 required a procedure resembling a civil nuisance action, including an oral hearing, cross-examination and full disclosure. Alternatively, he argued that common law fairness required the statutory procedure to be supplemented. The court also considered the statutory appeal to a planning inspector and the non-statutory guidance on high-hedge complaints.

1. Nature of the decision. The decision whether to issue a remedial notice under Part 8 of the Anti-social Behaviour Act 2003 is a public law administrative judgment. It is not an adjudication of a private dispute equivalent to a nuisance claim in the County Court. The full civil fair-hearing requirements described in Albert and Le Compte v Belgium [1983] ECHR 10 therefore do not apply.
2. Common law fairness. Fairness must be read into the statutory procedure. In the ordinary case, the affected landowner should be told why the hedge is said to interfere adversely with the neighbour’s reasonable enjoyment, given an opportunity to address that case and provide relevant information or evidence, and given sufficient reasons for the decision to enable an appeal to be brought.
3. Extent of the procedure. The statutory scheme does not require an oral hearing, cross-examination, full disclosure or an open investigation before the local authority. A written appeal to the planning inspector, combined with judicial review on legal issues, can provide sufficient independence and protection. Following R (Alconbury Ltd) v Environment Secretary [2003] 2 AC 292, the degree of oral procedure is principally a matter for the rules and decision-maker, assessed with regard to proportionality, cost, speed and simplicity.
4. Application and disposition. The council’s approach was flawed because the remedial notice was issued without adequate investigation, representations or reasons, and its position that the statute and appeal alone supplied sufficient fairness was inadequate. The claimant therefore succeeded on the common-law fairness ground, but failed on the wider Article 6 case. No substantive relief was required because the notice had been withdrawn. The court awarded the claimant £900 in costs.

The judgment records that High Court (Administrative Court) permission was initially refused by Mitting J on the papers, but was granted on renewal by Langstaff J on 11 August 2011. The present judgment gives the first substantive determination of the judicial review claim.