Hedges have received legal protection in some form since the Enclosure Acts dating back to the early 17th century. Since then, rules surrounding hedges have gathered increasing complexity. With the current political focus on environmental concerns – especially discussion surrounding “natural capital” – this trend appears likely to continue, and hedgerows properly managed may be a valuable source of future support payments.
Definition of hedgerows and “important” hedgerows
The Hedgerow Regulations 1997 apply to any hedgerow growing in or adjacent to any common land, protected land or land used for agriculture or forestry that either has a continuous length exceeding 20m or that has a continuous length of less than 20m and at each end meets one of either an intersection or junction of another hedgerow. Regulations for hedgerows do not normally apply to hedges which form or make part of the boundary or curtilage of a dwelling house. A gap must exceed 20m to be seen as a gap under the Regulations and therefore anything less than 20m is considered to be part of the hedge.
An ‘important hedge’ is defined as a hedge which has existed for over 30 years and satisfies at least one of the criteria in part 2 of Schedule 1 of the Hedgerow Regulations 1997.
Removal of hedgerows
The Hedgerow Regulations 1997 state that hedgerows can only be removed under two circumstances:
- When one of the exemptions specified in part 6 of the Regulations applies, such as making a new opening in a hedge while gapping up the existing one within eight months of the removal, as part of works for which planning permission has been granted, or for preventing the spread of pest species;
- When an application has been made to a local authority for a hedgerow removal notice and either the authority has replied positively within 42 days or the applicant has not received a response. This decision period can be extended with agreement from the applicant.
If the council believes that a hedgerow is ‘important’, it will respond to a removal notice with a Hedgerow Retention Notice. This is formal confirmation that the hedgerow is not to be removed, and doing so would constitute an offence under the Hedgerow Regulations 1997.
It is a criminal offence to deliberately remove a hedge without the appropriate permission. If found guilty by a Magistrate’s Court, a fine of up to £5,000 can be imposed and if it is passed to the Crown Court an unlimited fine and also a criminal conviction can be imposed. A Hedgerow Replacement Notice, compelling someone who has removed a hedge illegally to replace it or face further penalty, may also be issued. Therefore, although part 6 of the Regulations contains numerous exemptions for which a hedgerow can be removed without notification to a local authority, the penalty for removing a hedge without the correct exemption or permission is significant enough that it may be prudent to seek professional advice and/or notify the local planning authority of your intentions.
Cutting and trimming hedges
While there is no law that prevents hedges being cut or removed at any point during the year, there are a number of regulatory factors to consider when undertaking hedgerow trimming. For example, if you claim BPS, Cross Compliance prohibits the cutting of hedges betwen the 1st March and the 1st September, with coppicing and laying prohibited between 30th April and 1st September.
When trimming hedgerows, wildlife must also be considered. For example, disturbing or destroying a bird’s nest which is in use or being built is a criminal offence under the Wildlife and Countryside Act 1981. Cross Compliance rules were designed to allow hedge cutting around the bird nesting season, but this rule applies whether within the allowed cutting period for Cross Compliance or not. In addition, it is illegal under the Act to disturb the nests of several key species at any time whether in use or not. However, the three species in question – golden eagles, white-tailed eagles and ospreys – are unlikely to occur in hedges in the West Country.
Other ecological legislation which can affect work on hedgerows includes the Protection of Badgers Act (1992), which prohibits damage to or destruction of badger setts. Additionally, the Conservation of Habitats and Species Regulations 2017 requires that you have a licence when undertaking works affecting a number of key species, such as dormice, various reptiles and a wide variety of rare plant species. Offences under either legislation can result in an unlimited fine or a prison sentence of up to six months.
When both trimming and removing hedges, another matter to consider is the removal of trees within a hedgerow. Generally this requires a felling licence, if more than 5m3 of timber is to be removed from a holding. While there are exemptions in which trees can be felled without a licence, found in the Forestry Act of 1967, the Forestry Commission recommends always seeking their advice before felling based on an exemption. The fine for unlawful felling is usually capped at £20,000, but is unlimited in the worst cases.
Earth and stone-faced banks
Another aspect of boundaries to consider is earth banks and stone-faced earth banks. In general, under Cross Compliance, the rules for stone walls, earth banks and stone-faced banks apply if the boundary has a continuous length of at least 10 metres, or if less than 10 metres in length either meets another boundary at each end or forms an enclosure.
Under Cross Compliance you are not allowed to remove stone walls, earth banks and stone banks unless to widen an existing gateway, although no gateway may be made wider than 10m. Stone or earth may not be removed to repair another stone wall, earth bank or stone-faced earth bank on the holding which is in a better condition than that from which it was removed.
Banks of earth construction with or without stone which may or may not have a hedgerow growing on top – are not specifically mentioned in the Hedgerow Regulations 1997, but it is not clear whether they fall under them. This deficiency in the Regulations has been known almost since their inception. In 1998 the Environment Select Committee made recommendations for new legislation covering the issue, as well as helping to protect other historic boundaries such as the iconic dry stone walls of Wales and Yorkshire, but parliamentary action was not taken. Since then, Cornwall Council has reported a planning appeal case in which the Inspectorate argued any bank capable of supporting a hedgerow should be treated as a hedgerow for purposes of the Regulations. However various organisations such as the Cornwall Wildlife Trust suggest that Cornish hedges remain unprotected by the Regulations unless there is actually a hedgerow growing on them. This is very much a “grey area”, and may not be clarified soon. To be sure you are protected against non-compliance, contacting your local planning authority before removing or significantly altering any historic boundary, living or otherwise, would seem to be the only answer.
Not all works relating to hedgerow management are necessarily covered by the Hedgerow Regulations 1997. For example, widening access to a hedgerow up to 10m is exempt under the Regulations, but if this work also requires movement of an earth bank, you may need to complete a prior notification form. If the work is sufficiently close to a classified road, full planning permission may be required. Likewise, if the works involve the obstruction of a public right of way, you may need to apply to your local authority for a temporary closure. If the works affect land under an agri-environmental scheme, a derogation or other adjustment to the agreement may be necessary.
Commercial effect of mismanagement of hedgerows
Whilst the better known hedgerow and wildlife regulations need to be considered on a hedge, it is important to understand the wider compliance issues which also apply.
As now with Cross Compliance, not understanding how to manage your hedgerows may expose you to loss of the Basic Payment and Stewardship payments and could jeopardise further support payments under the proposed New Environmental Land Management Scheme (NELMS).
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