Hedgerow Replacement Notice confirmed by Inspector

We were instructed by the Dedham Vale Society in relation to the removal of an agricultural hedgerow within the AONB/ National Landscape without prior notice, in contravention of the Hedgerow Regulations 1997. Following our contact, the Council issued a Hedgerow Replacement Notice, requiring the restocking of the hedgerow by the landowner at her expense. This was confirmed by a Planning Inspector on appeal.

The Law

The Hedgerow Regulations 1997 (‘the Regulations’) provide the legal protection of hedgerows within England & Wales. Although it has been criticized by environmental NGOs for not going far enough, it does set out the requirement for the landowner to seek permission from the Local Planning Authority for the removal of hedgerows more than 20m agricultural, common, land used for livestock and if it runs alongside a SSSI or Local Nature Reserves.

Furthermore, a distinction is made for ‘important’ hedgerows. An ‘important’ hedgerow under the Regulations is one that must be (i) at least 30 years old and (ii) meet at least of one of the eight criteria set out in the Regulations; i.e:

1. Marks a pre-1850 parish or town boundary;
2. Incorporates an archaeological feature;
3. Is part of, or associated with, an archaeological site;
4. Marks the boundary of, or is associated with, a pre-1600 estate or manor;
5. Forms an integral part of a pre-Parliamentary enclosure field system
6. Contains certain categories of species of birds, animals or plants listed in the Wildlife & Countryside Act 1981 or Joint Nature Conservation Committee
7. Includes varying numbers of specific woody species (listed within the Act) and/or associated features (including; a bank or wall support, less than 10% gaps, a ditch on average at least one tree per 50m etc)
8. Runs alongside a bridleway, footpath, restricted byway or Byway Open to All Traffic (BOAT) and includes at least 4 woody species in a 30m length and 2 associated features (see above).

If the hedgerow meets the ‘important’ criteria, the strong presumption is that the hedgerow will be protected. Unless satisfied that the removal is justified, the Council must refuse permission and issue ‘a hedgerow retention notice’. It is a criminal offence to deliberately remove a hedgerow without permission. With a £5k fine if tried in a Magistrates Court; the fine is unlimited in a Crown Court.

If a hedgerow is removed without permission the authority, as happened here, the local authority has the power to ensure the hedgerow is replanted. Any replanted hedgerow is ‘important’ for 30 years after it has been planted.

The Dedham Hedgerow

Although our client had informed the Council that the hedgerow had been removed without notice it was unknown whether a Hedgerow Replacement Notice had been issued following landowner representations that the land was not ‘agricultural’. With the statutory definition of ‘agricultural land’, evidence of Rural Payment Agency payments (only provided for agricultural land), google maps and statements this quickly undermined the landowner’s position. Our research and subsequent representations further established that, had permission been sought, there would have been a strong presumption for refusal as the hedgerow was ‘important’ due to its age, statements on number of species and historic and cultural setting, supported by researched documentary evidence. On this basis the Hedgerow Replacement Notice was retained.

Appeal to the Planning Inspectorate

The landowner was persistent and appealed, as one can, to the Planning Inspectorate, decision letter below. On what is likely any unusual topic for Inspectors, there is a careful review of the evidence we submitted on behalf of our client establishing the status of agricultural land, the presence and ecological make up of the hedge which provided sufficient evidence to establish a hedge existed. Although no comment is made on the ‘importance’ of the hedgerow, it did not matter as, absent notice, the Council can issue a Replacement Notice, with associated enforcement provisions.