Hedges

Hedgerows, gardens and wildlife

Hedgerows are an important feature of the countryside, both for their wildlife value and for their landscape and historical importance. A number of laws and regulations protect hedgerow birds or the hedgerows themselves. This article explains the regulations and how they work.

Hedgerows have been an important feature of British countryside since the mid-18th century and the Enclosures Act, although there have been hedgerows as early as the Bronze Age.

Hedgerows were first used as stock enclosures and boundary markers, but also provided berries, nuts, firewood and other resources to the farmer. Their importance as nesting sites and a source of food to wild birds is well documented.

Since the Second World War there has been large-scale removal of hedgerows in a drive to increase food production, and in some parts of the country well over half of hedgerows have gone. Despite planting of new hedgerows, removal and neglect resulted in the loss of around 18,000km per year as recently as the early 1990s. Today, fewer hedgerows are lost, and neglect is the main reason for hedgerow loss.

Hedges and the Wildlife and Countryside Act 1981

Whilst the Wildlife and Countryside Act (as amended by Countryside and Rights of Way Act 2000) does not give protection to a hedgerow as such, it does give legal protection to all wild birds in Britain (in Northern Ireland this is by N I Wildlife Order 1985).

Nests in Hedgerows and the Law

Under Section 1 of the Act it is an offence to take, damage or destroy the nest of any wild bird intentionally while it is in use or being built. It would be an intentional act, for example, if contractors continue to cut or remove a hedge after they have been told that birds are nesting there. There is no offence, however, if it can be shown that the act was the incidental result of a lawful operation and could not be reasonably avoided, or if the person was genuinely unaware of the presence of the nest.

Schedule 1 Bird's Nests and the Law

If a Schedule 1 species, such as a Cirl Bunting or Hobby, is nesting in the hedge, even disturbance close to the nest is an offence. Disturbance would be considered a reckless act if the contractors had knowledge that a particular Schedule 1 species had nested in the location in the past and they had not made sufficient licensed checks to ascertain residence of the species before starting work.

If you are aware of hedge cutting or removal work going on during the breeding season, and you know birds are nesting in the hedge, you should inform the contractors of the presence of nesting birds. If work continues, immediately contact your nearest Police Wildlife Liaison Officer, who would have the powers to stop the work.

Since the legal protection is on the bird only, the indirect protection of the hedge (or a section of it) is only in operation whilst the nest is in use. Once the young fledge and the nest is no longer in use, there is no further protection for the hedgerow from the Wildlife and Countryside Act.

High Garden Hedges

What new legislation covers this issue?
The law giving Local Authorities powers to deal with complaints about high hedges is contained in Part 8 of the Anti-social Behaviour Act 2003, which came into effect on 1st June 2005.

What is classed as a 'High Hedge'?
A high hedge is defined in the Act as a barrier to light or access as is formed wholly or predominantly by a line of two or more evergreen or semi-evergreen trees and rises to a height of more than 2 metres about ground level.

Please note individual trees and shrubs are not covered by this legislation.

What can be done if the roots of the hedge are causing damage?
The Act does not cover complaints about the effects of roots of a high hedge. The Local Authority will not, therefore deal with complaints made under this legislation. This is normally a civil matter between yourself and your neighbour.

Who can complain?
A complaint can be brought under the Act by the owner or occupier of the property affected by the hedge. The property must be residential and the hedge must detract from the reasonable enjoyment of your home and garden.

Is there a fee for the Council to investigate?
Yes, a fee of £350 should accompany the application for investigation. This fee is non-refundable and no investigation will take place without receipt of cleared funds.

Is the Authority obliged to investigate all complaints about high hedges?
No. The Local Authority may decline to accept any complaint if it considers it to be frivolous or vexatious or if it considers that the complainant has failed to take all reasonable steps to resolve the issue prior to attempting to involve the Local Authority.

Remember: the Local Authority should be your last resort.

What reasonable steps need to have been taken before the Local Authority will investigate?
The Local Authority will require that the complainant has clearly demonstrated ways to try to resolve the matter, before contacting them. The complainant will need to provide written evidence that they have tried to mediate with their neighbour with regard to a reasonable height for the hedge, together with any responses or absence of response.

If the Local Authority agrees to investigate what first steps will they take?
Once the Local Authority have satisfied themselves that the complaint is one they can deal with, an exchange of representations and a site visit will take place.

The local Authority will decide whether or not the complaint is justified, in that the height of the hedge is indeed adversely affecting the complainants reasonable enjoyment of their property.

There will be no time limit within which the Local Authority must reach a decision. However, when a decision has been reached, all parties will be notified of the Local Authority's decision together with reasons for that decision.

If the Local Authority decides that the hedge is too high, what happens next?
If considered appropriate, the Local Authority will issue a 'remedial notice'. This will run with the land in question and is binding on whoever owns or occupies it. This includes not only whoever owns or occupies the land at the time of the notice issued, but also their successors. The remedial notice will set out what works should be carried out to the problem hedge, what preventative action needs to be taken to ensure that it is maintained to a reasonable height, and finally, the penalties they will incur if they fail to comply with the notice.

Does the Act give the Local Authority power to require the hedge owner to reduce the height of the hedge to less than 2 metres in height?
No. However, the height to which it will be appropriate to reduce specific hedges will depend on the circumstances of each case.

Does the hedge owner have a time limit to comply?
Yes. The notice will contain an 'issue date' and a date at least 28 days later will be cited as it 'operative date'. The notice will also cite a 'compliance period' which will be a reasonable period, which allows the hedge owner the opportunity to make arrangements for the work to be carried out.

It is recommended that hedge cutting does not take place between March and August, as disturbance of nesting birds may contravene the Wildlife and Countryside Act 1981. Only after the expiration of the compliance period, may the Local Authority commence proceedings with non-compliance with the notice.
Failure to comply with the Remedial Notice

Failure to comply with the requirements of the Remedial Notice is an offence. The hedge owner can be convicted by a Magistrates Court and can be fined up to £1,000. The Court may then issue an order for the offender to carry out the required work within a set period of time. Failure to comply with the Court Order would result in another fine of up to £1,000. From this point, the Court would be able to set a daily fine of up to £50 for every day the work remains outstanding. Furthermore, it is also an offence to obstruct an officer of the Local Authority exercising a power under this Act, and if it occurs, this too is punishable by a fine of up to £1,000.

What can the Local Authority do if the hedge owner still refuses to comply with a notice?
If the owner of the hedge still fails to comply (without reasonable excuse), the Local Authority may make arrangements to get the requisite work carried out and then charge the hedge owner for all costs involved. These costs would be registered as a local land charge on the property.

Is there a right to Appeal?
Yes. Any appeal by the hedge owner against a remedial notice must be made in writing. Appeals should be submitted on an official form provided by the Planning Inspectorate. The forms are available on the Planning Inspectorate website at www.planning-inspectorate.gov.uk or from:-