Hedgerow removal notices and appealing a retention notice

A hedgerow retention notice appeal goes to the Secretary of State and must be made within 28 days of the notice being served. The ground is not that you need the hedge gone. It is that the hedgerow does not meet the criteria that make it important under the Hedgerows Regulations 1997, or that the regulations do not apply to it at all.

That reframing decides most of these cases. Farmers appeal on the basis of field size, machinery access and economics, and lose, because none of that is what the regulations ask about.

What the notice procedure requires

The Regulations apply to hedgerows in England and Wales that are 20 metres or more in length, or shorter where they meet another hedgerow at each end, and that grow on or next to land used for agriculture, forestry, the keeping of horses, common land, a local nature reserve or a site of special scientific interest. Hedgerows within or marking the boundary of the curtilage of a dwelling house are outside the regulations.

Where they do apply, you serve a hedgerow removal notice on the local planning authority. It needs a plan identifying the hedgerow, a statement of the reason for removal, and evidence of the hedgerow's age where you have it.

Then you wait. The authority has 42 days from receipt. Within that period it can issue a hedgerow retention notice prohibiting removal, or it can tell you in writing that you may proceed. If it does neither and the 42 days expire, you may remove the hedgerow.

Three practical points. Serve the notice in writing and keep proof of the date, because the 42 days run from receipt. Identify the length precisely, since a notice covering more hedgerow than you need invites a retention notice over the whole of it. And do not start work on day 41.

How importance is assessed

A hedgerow is important only if it satisfies two things together. It must have existed for 30 years or more, and it must meet at least one of the criteria in Part II of Schedule 1 to the Regulations.

The criteria fall into two groups. The archaeology and history group covers hedgerows that mark the boundary of a parish or township existing before 1850, that incorporate a scheduled monument or other recorded archaeological feature, that mark the boundary of a pre-1600 estate or manor, or that form part of a field system pre-dating the Inclosure Acts or are associated with a pre-1845 field system.

The wildlife and landscape group counts woody species in a 30 metre length, with a threshold that falls where the hedgerow has associated features such as a bank, a ditch, a wall, a pond, standard trees or connections to other hedgerows and woodland. It also catches hedgerows containing species protected under the Wildlife and Countryside Act 1981 or listed in the Regulations' own schedules.

So the assessment is documentary and botanical rather than agricultural. The authority will have consulted historic maps, the Historic Environment Record and its own ecologist. You need to have done the same.

Grounds for challenging a retention notice

Four lines of attack, in rough order of how often they succeed.

1. The Regulations do not apply. The hedgerow is under 20 metres and does not meet another at both ends, or it marks the curtilage of a dwelling, or the land is not within the categories listed.
2. The hedgerow is less than 30 years old. Age is the gateway, and it is often the weakest part of the authority's case. Aerial photography and historic Ordnance Survey editions are the evidence.
3. The criterion relied on is not met. The authority has to specify which criterion applies, and the species count, the map evidence or the archaeological feature can all be tested.
4. Only part of the hedgerow qualifies. A retention notice can be contested in part, and agreeing removal of the sections that fail the criteria is often the realistic outcome.

Read the notice carefully for what it actually says, in the same methodical way you would break down a refusal, which is the exercise in reading a refusal notice and turning it into a plan. A notice that fails to specify the criterion is vulnerable on its own terms.

Where the appeal is heard

The appeal is made to the Secretary of State and administered by the Planning Inspectorate. It is normally dealt with by written representations, with a site visit, and an inspector decides.

Expect the authority to produce its ecologist's and conservation officer's evidence. Expect the appeal to turn on documents. And expect the inspector to visit in the growing season if the species count is in issue, because counting woody species in February is not a sensible exercise.

The 28 day deadline is the hard point. Diarise it from the date of service, and if you need an expert survey, instruct it in week one rather than week three.

Evidence on age, species and historic features

Build the file before you appeal, not during it.

• Historic Ordnance Survey mapping, which shows whether the hedgerow line existed at successive survey dates. County record offices and online map libraries hold the editions.
• Aerial photography, which settles the 30 year question more directly than anything else.
• Tithe and enclosure award maps where the pre-1845 field system criterion is in play.
• A botanical survey counting woody species in the prescribed 30 metre lengths, carried out between April and September by someone competent to identify them. Councils expect a suitably qualified author for ecological evidence and professional review is strongly advised.
• A record of associated features, because their presence lowers the species threshold, and their absence raises it.

Where the authority relies on an archaeological criterion, an Archaeological Desk-Based Assessment addressing the specific feature is the proportionate response. Where ecology is in issue, a Preliminary Ecological Appraisal gives the baseline, though the appeal needs the species count done to the method in the Regulations rather than a general habitat description.

Offences and penalties for removal

Removing an important hedgerow in contravention of the Regulations is a criminal offence, prosecuted in the magistrates' court and punishable by a fine. The authority can also serve a notice requiring you to plant a replacement hedgerow, and that obligation survives a change of ownership of the land.

The regulations do allow removal without notice in a short list of circumstances, including making a new opening in substitution for an existing one, obtaining temporary access in an emergency, work required by statutory powers, flood defence or drainage work, and the proper management of the hedgerow itself by coppicing or laying. Read regulation 6 before relying on any of them, because the exemptions are narrower than they sound.

Separate rules govern cutting and trimming on agricultural land, including a closed season through the bird nesting period, and those are enforced by the Rural Payments Agency rather than the council. Check the current rules, because they were revised recently.

Planning permission as an alternative route

This is the route most rural owners miss. Removal carried out in accordance with a planning permission is exempt from the notice procedure.

So where the hedgerow is being removed as part of a development, a new access, a farm building, a change of use, the hedgerow question is determined through the planning application rather than through a separate removal notice. That is usually the better forum. The authority weighs the loss against the benefits of the scheme in the planning balance, and mitigation planting can be secured by condition.

Deal with the hedgerow explicitly in the Planning Statement, with the species count and the age evidence attached. An application that treats a 200 year old species-rich hedgerow as an incidental boundary feature will attract an objection that could have been answered in advance.

This is general guidance rather than legal advice, and whether a hedgerow is important turns on survey and documentary evidence specific to the site, so check the position with your local planning authority or a qualified professional before relying on it.