We are all aware that there is more and more regulation on what you can and cannot do on the farm and I thought that it might be of interest to review the some of the issues surrounding hedgerows and trees abutting the highway.
Until the 1970s the government was subsidising the removal of hedgerows; a situation that has subsequently been reversed.
The Hedgerow Regulations 1997 is a slightly odd code designed to protect hedges that are important from a historical or natural point of view. The unauthorised removal of a hedgerow is an offence that can be tried in the Magistrates Court or the Crown Court. It is punishable by a maximum fine of £5000 in the Magistrates Court and an unlimited fine in the Crown Court. Land managers should take note.
The legislation unhelpfully fails to define a hedgerow. The concise Oxford Dictionary defines “hedge” as “a row of bushes forming a barrier or boundary” and “hedgerow” as “bushes forming a hedge” so it is best to take a commonsense view.
Under the code, all occupiers proposing to remove a hedgerow must notify the Council which must then determine whether the hedgerow is an “important” one .To be “important” the hedgerow must be home to certain plant or animal species or of historical importance, eg a parish boundary.
If the hedge is important the Council must issue a hedgerow retention notice; if not, the Council must permit the hedge to be removed .The key is to advise the Council of what you are proposing to do. Removal of an unimportant hedgerow without giving the Council the opportunity to assess the position is still an offence.
I am aware of a recent Council prosecution of a farmer who removed four hedgerows without notifying them. His defence was they were “windbreaks”. The County Council’s expert said that, from the rubble and stubble remaining, hedgerows had been removed and whist they may have served as windbreaks they had been hedgerows, two important and two unimportant.
The Court fined the defendant £800 and asked for £4000 towards the prosecution costs - as well as having to pay his own legal costs. His failure to consult the Council proved an expensive oversight.
It must also be appreciated that compliance with the Hedgerow Regulations is part of GAEC 15 under cross-compliance and so if the RPA finds out about the above prosecution, the farmer’s SPS will be at risk too.
Trees! If you have trees abutting the highway you need to be aware of a recent case which has highlighted your responsibility for ensuring that they are structurally sound. In the case of Poll v Viscount and Viscountess Asquith, a motorist driving on the highway collided with a tree that had fallen from the defendants land because it had suffered from a structural, and undetected, fungal defect. The defendants had employed an independent forestry consultant to conduct a drive-by inspection of all their trees and he had failed to spot these defects. It was argued that a competent inspector would have spotted the structural defect and thus recommended a further, more detailed inspection that, in turn, would have revealed the fungal defect.
The case is important because it reinforces the principle that land managers owe a duty of care in respect of their trees but it also highlights the importance of landowners conducting a regular inspection of their trees, carrying out risk assessments and ensuring that management plans are in place. It also emphasises the necessity of employing a competent and suitably qualified arboriculturist to carry out the inspection.
I could envisage a case where a substantial “hedge” abutting a highway that needed to be managed was at odds with the Hedgerow Regulations. Perhaps this is for another article?
In the meantime if you are thinking about “managing” hedgerows think about what you are doing and, in the first instance, consult NFU Callfirst. If you have trees abutting the highway, be aware that you have to manage them.
