Castelli, R (On the Application Of) v London Borough of Merton

Under Part 8 of the Anti-Social Behaviour Act 2003, the statutory definition of a high hedge governs. The decision-maker must assess the statutory concepts, including whether a barrier to light or access is formed wholly or predominantly by a line of at least two evergreens. Relevant considerations may include alignment, proximity, the relationship of the trees to other trees, and the barrier they present. The absence of foliage below two metres is not, by itself, a statutory disqualification or relevant factor. The definition does not automatically exclude a line of trees merely because it forms part of woodland. Applying those principles, the authority was entitled to conclude that the trees were not a line of trees constituting a high hedge.

The claimant sought judicial review of the London Borough of Merton’s decision, communicated on 19 April 2011, that four evergreen trees in Cannizaro Park did not constitute a high hedge under section 66 of the Anti-Social Behaviour Act 2003. The authority relied on the trees being separate trees forming the edge of woodland, the absence of growth in the lower two-metre zone, and the gap between the canopies and the claimant’s boundary.

Permission had initially been refused on the papers by Collins J, but was later granted after an oral hearing. The central issues were whether the authority had applied unlawful additional criteria and whether it was entitled, on the evidence, to conclude that the trees did not form a statutory line of trees or hedge.

1. Claim dismissed. The authority was entitled to conclude that the four trees did not constitute a high hedge within section 66 of the Anti-Social Behaviour Act 2003.
2. Section 66 supplies its own definition. It is therefore not enough simply to apply the ordinary meaning of “high hedge”. Nevertheless, ordinary language and common sense remain relevant because the statutory concept of a line of evergreens is intended to identify a hedge.
3. The statutory language contains evaluative concepts. In deciding whether there is a line of trees forming a barrier to light or access, the decision-maker may consider alignment, proximity, the relationship of the trees to other trees, and the degree of barrier presented. Precise alignment is unnecessary. A line of trees is not automatically excluded because further rows of trees or woodland lie behind it.
4. The authority’s reference to an “essential two metre zone” was legally wrong. Section 66 requires the growth to rise more than two metres above ground level; it does not require foliage below that height. The absence of lower foliage could not logically contribute to the statutory assessment.
5. The reasoning in the authority’s letter was less focused than would be expected from a judicial decision-maker, but it was an executive decision by a Trees Officer who was not required to be legally trained. The reference to individual trees forming an edge of woodland adequately recorded the conclusion that they did not form a statutory line of trees. The photographs supported a conclusion that the officer was plainly entitled to reach.
6. The court noted the procedural difficulty that section 68 does not expressly provide for rejecting a complaint because the growth is not a high hedge. The words “frivolous or vexatious” could, consistently with court rules, encompass a claim bound in law to fail for that reason. Costs were awarded to the defendant in the sum of £3,655. Permission to appeal was refused.

• High Court (Administrative Court): the claim for judicial review was dismissed.
• Permission had previously been refused on the papers by Collins J and later granted by Mr Vincent Fraser QC, sitting as a Deputy Judge of the Queen’s Bench Division. These were procedural steps in the same claim.