Hedgerows – a seasonal reminder

Many farmers, landowners and others involved in agriculture, support the Farmers Weekly petition calling on DEFRA to repeal the ban on hedge cutting in August. The ban is from the beginning of March until the first September under the cross compliance conditions (unless there is a specific derogation from the RPA to sow oilseed rape or temporary grassland). The NFU have always said that it is preferable for hedge cutting machinery to be able to move around on stubble or uncultivated ground, while acknowledging the need to protect nesting birds from March to July (inclusive). A recent Farmers Weekly article quoted the National Association of Agricultural Contractors, who suggest that contractors are losing revenue because of the ban on cutting hedges until the beginning of September.

But what are landowners, their contractors and employees actually allowed to do to hedgerows on their land, and what are the implications of not complying with the regulations? We examine these questions in this article.

There are two main ways that hedgerows are protected – first under cross compliance conditions and second under the Hedgerow Regulations 1997. Hedgerows are also likely to be covered by any Entry Level or Higher Level Stewardship Schemes and any Countryside Stewardship Agreement, but this will not be explored in this article as each agreement is individual.

It is worth noting that the hedgerow regulations are part of English law and therefore should remain in place after Britain’s exit from the European Union. However the cross compliance conditions relate the basic payment scheme and are therefore unlikely to continue to exist in their current form. Farmers and landowners will expect environmental conditions and restrictions to remain following Brexit and hedgerow protection is no exception.

Cross-compliance

GAEC7 sets out the conditions relating to the protection of boundary features (including hedges). The definition of hedges for the purpose of this condition is:

Any hedge growing in, or adjacent, to any land which forms part of the agricultural area on your holding and which has one of the following:

• A continuous lengths of at least 20 metres or is part of any such length.
• A continuous length of less than 20 metres where it meets (at an intersection or junction) another hedge at each end.

Any gap of 20 metres or less and any gap resulting from a breach of the Hedgerow Regulations 1997 will be treated as part of such hedge.

Within two metres of the centre of the hedge there must be no cultivation or application of fertilizer or pesticides and all reasonable steps must be taken to keep the green cover on the land (there are some limited circumstances where this particular rule does not apply).

As already mentioned, hedges cannot be cut or trimmed between the 1 March and 31 August (inclusive) unless:

1. The hedge overhangs a highway or public or private right of way and it causes an obstruction or danger to drivers, pedestrians or horse riders.
2. The hedge is dead, diseased, damaged or insecurely rooted and because of its condition is likely to cause danger.
3. The work is hedge-laying or coppicing between 1 March and 30 April (inclusive).
4. The hedge has been in place for less than six months (it is sensible to keep evidence that this is the case).
5. Where written permission is received from the RPA for the purposes of sowing oilseed rape or temporary grassland in August.

Hedgerow Regulations 1997

The definition of a hedge under the Hedgerow Regulations is similar to that under the cross compliance conditions. The hedge is protected if it is on or next to agricultural land, horse paddocks, common land, village greens, public rights of way (and others).

Under the Hedgerow Regulations it is not permitted to remove all or part of the hedge unless exemptions apply or (under Regulation 6) if consent from their local planning authority has been requested and either received or there has been no reply within 42 days of the application. The local planning authority will refuse consent to remove what is classed as an “important hedgerow” which are those hedges that are at least 30 years old and are part of a field system or boundary of an estate or manor (among others).

In the application to the local authority, the applicant must identify the hedge to be removed on a plan that has a scale of 1:2500, provide evidence that that hedge is less than 30 years old, explain why they want to remove that hedge and state the capacity of the applicant (tenant, landowner or utility company for example).

As mentioned, the local planning authority then has 42 days to respond to the application. It can either issue permission to remove the hedge or a retention notice and is obliged to keep a record of all notices issued. If purchasing rural land, the appropriate question should always be raised in the search at the local authority.

There are some circumstances in which landowners do not have to apply for permission to remove a hedgerow (contained in regulation 6 of the Hedgerow Regulations 1997) – the most common being where the hedge is less than 20 metres long and does not meet another hedge at either end. Other exceptions include creating a temporary access point for emergencies, carrying out work for which planning permission has been granted or which is a permitted development, or preventing interference with overhead lines and apparatus (if required by law). Removing dead or diseased shrubs is permitted but it would be sensible to gather and keep evidence and if in doubt obtain permission from the local planning authority.

Potential penalties

If the event of a breach of the Hedgerow Regulations, fines of up to £5,000 can be imposed in the Magistrates Court and in the higher courts fines are unlimited.

If cross compliance conditions are breached then any claimant may have their BPS payments reduced – the level of the reduction depending on whether the breach is deemed to be negligent (ie, if the claimant did not know that they had not followed the rules properly) or intentional. This could be where there is a repetition of the same negligent breach or, according to the European Court of Justice, where, if a condition has been broken only once, “…a claimant seeks a state of non-compliance with the rules or without seeking such estate accepts the possibility that it might occur”. If the breach is deemed to be negligent then payments can be reduced by between 1% to 5% depending upon the extent, severity and permanence of the non-compliance. If the breach is intentional, payments will normally be reduced by 20 per cent but can be reduced from between 15 per cent to 100 per cent depending again on the extent of the severity and permanence of the non-compliance. In the most extreme cases, claimants may not receive BPS payments in the year following that in which the breach occurred.

What does this mean for landowners going forward

It is clear that the rules and regulations governing hedges are strict and the penalties for non-compliance can be severe. It is therefore essential for landowners and contractors to ensure that the rules are followed and that any necessary consents are obtained before works are undertaken.