Hedges, the Law, rules and Regulations
A series of questions and answers based around the question ‘When can I trim, cut, lay or coppice a hedge?’. Covering Basic Payment Scheme (BPS) cross-compliance, Wildlife & Countryside Act 1981 (as amended) and agri-environment schemes. Also includes advice regarding felling licences and Tree Preservation Order (TPO) consents and the Hedgerows Regulations.
The relationship between Environmental Stewardship (ES) and Basic Payment Scheme (BPS) derogations to undertake hedge trimming between 1st March and 31st August.
See the Hedges and the Law document (PDF, 378k).
Please note that this document refers to England only. Other UK countries have different provisions.
The Hedgerows Regulations 1997
The Hedgerows Regulations 1997 were made under Section 97 of the Environment Act 1995 and came into operation in England and Wales on 1 June 1997. They provide important protection by prohibiting the removal of most countryside hedgerows (or parts of them) without first notifying the local planning authority (LPA). â€™Removalâ€™ includes acts which could result in the destruction of a hedgerow.
If the hedgerow is ‘important’ according to criteria set out in the Regulations, the LPA may prohibit its removal by issuing a retention notice within 42 calendar days from receipt of notification. The LPA can also require replacement of a hedgerow removed in contravention of the Regulations. Unsuccessful applicants can appeal to the Secretary of State within 28 days of receipt of the LPA decision. The Planning Inspectorate deals with appeals on behalf of the Secretary of State.
Contravention of the Regulations is a criminal offence, punishable in some cases in the Magistrates’ Court by a fine of up to Â£5,000. For anyone convicted on indictment in the Crown Court the fine is unlimited.
Here you can download a guide to the Hedgerow Regulations (PDF 4.4MB), covering both legal considerations and good practice. You can also download a short summary of the Regulations (PDF 0.5MB). Please note there was an amendment to the importance criteria 5(a), Part II, Schedule 1 in 2002.
The Regulations set out criteria for the LPA to use in assessing whether a hedgerow is ‘important’. The criteria relate to the value of the hedgerows from an archaeological, historical, landscape or wildlife perspective. Hedgerows less than 30 years old are excluded , but if a hedgerow is at least 30 years old and qualifies under any one of the criteria it is deemed to be important. There is considerable local variation, but research suggests that, nationally, over 70% of hedgerows are estimated to be ‘important’ if assessed according to the criteria in the Regulations.
Review of the Regulations
Between 1984 and 1990 it was estimated that the length of hedgerows in Great Britain had declined by approx. 23%. When the 1997 Regulations were introduced, Ministers were advised that only 20% of hedgerows were likely to be protected under these criteria and undertook to review the Regulations within a few years. However, subsequent ADAS research indicated that over 70% of hedgerows might be protected, and the results of the Countryside Survey 2000 indicated that by 1998 the decline in the length of hedgerows as reported in the 1980s had been halted.
A public consultation on the Regulations took place in 2003 which included proposals for simplification, updating and improvement as well as inviting views on wider issues of boundary conservation. In 2004, there were two further limited consultations on subsequently arising issues (possible abuse of the existing ‘proper management’ exemption, and provision for an exemption enabling highways authorities to make improvements etc. to rights of way). Implementation of changes arising from these reviews was put on hold pending a further consultation, in the spring of 2006, on new Environmental Impact Assessment (Agriculture) (England) Regulations, which would also apply to hedgerows. Stakeholders were asked for their views on
a) whether the controls in the 1997 Regulations should be subsumed into the new EIA regulations or whether they should continue to stand alone ;and
b) whether enforcement should be carried out by Natural England or remain with Local Planning Authorities.
Any changes to the Regulations arising as a result of these consultations are currently on hold. In the meantime, Ministers remain committed to maintaining the current level of hedgerows protection, even if risks of removal are extremely low. Stakeholders are also of the view that hedgerows protection should remain undiminished. Retention of the Regulations in their present form ensures that this remains the case.
Tree Preservation Orders (TPO)
On 6 April 2012, the Town and Country Planning (Tree Preservation)(England) Regulations 2012 put all tree preservation orders (â€™ordersâ€™) onto the same footing and consolidated existing legislation into one new set of regulations. For more details see Main changes to the tree preservation order system in England from 6 April 2012. The Order is made for the ‘amenity’ of the tree or woodland, which can include its nature conservation value, but more often means its visual amenity
TPOs prohibit the cutting down, uprooting, topping, lopping, wilful destruction or damage of trees without LPA consent. Not all trees are protected, and no particular species or size of tree are protected. Orders can be made very quickly and where necessary, councils can make an emergency TPO in less than 24 hours in cases of immediate danger. Where a TPO has been made, the landowner remains responsible for the tree condition and any damage.
To be protected a tree must meet one of three conditions:
- A Tree Preservation Order (TPO) has been made at some time to cover that tree.
- A planning condition has been made at some time to cover the tree – these are normally applied when planning applications affect existing trees. They are normally temporary (for up to two years), but may last longer and some have no time limit.
- The tree is in a conservation area.
- TPOs can be placed on any trees including woodland and hedgerow trees, but not hedgerows themselves. In practice, TPOs tend to be most commonly used in urban or semi-urban settings e.g. gardens and parkland.
There are four TPO types although they can contain any number of items or a combination of types:
- Individual: applied to an individual tree.
- Group: applied to a group of individual trees which, together, make up a feature of amenity value, but which separately might not.
- Area: Covers all trees in a defined area at the time the Order was made. This sort of TPO is not commonly used now .
- Woodland: Covers all trees within a woodland area regardless of how old they are.
Under the tree preservation order regulations that have been replaced, there were several circumstances where consent from the local planning authority was not required to carry out work to protected trees. This included trees that were dying, dead or had become dangerous. The broad scope of this exemption presented some uncertainty for those wanting to carry out what they believed to be exempt work. The new regulations omit â€œdyingâ€ from the exceptions. They also introduce an exemption for removing dead branches from a living tree.
The following are exempt from TPOs and cannot be protected under an Order, even if one has been made:
- Works approved by the Forestry Commission under a felling licence or other approved scheme.
- Felling or working on a dead or dangerous tree.
- Where there is an obligation under an Act of Parliament.
- Works at the request of certain agencies or organisations which are specified in an Order.
- Works where there is a direct need to work on the tree to allow development for which detailed planning permission has been obtained.
- Works to fruit trees cultivated in the course of a fruit production business, as long as the work is in the interests of that business. Fruit trees are not automatically exempt unless they are actively being used for a business.
- Works to prevent or control a nuisance (in the legal sense only).
- Works to remove dead branches from a living tree.
- It is unusual for trees on land controlled by a local authority or the Crown to have TPOs.
Details of Orders, applications for work, and decisions are kept by the local authority and should be available for public inspection.