Defra Consultation on Protecting Hedgerows: The Tree Council and partners respond

The deadline for submissions is September 20...

As Chair and co-ordinator of Hedgelink, the partnership that brings together organisations and individuals who have an interest in hedgerows, The Tree Council welcomes the opportunity to comment on the Defra Hedgerow Consultation. 

This document provides a draft summary of Hedgelink and The Tree Council’s responses, formulated through discussion with partner organisations, but still subject to receiving final comments from several key partners.  

Buffer strips 

The Tree Council (TTC) supports proposals which continue to include a buffer strip 2m from the centre of the hedge. Buffer strips are an important protective measure for hedgerows, and farmers are accustomed to this requirement, so it should be maintained. 

Hedgerows provide crucial ecosystem services regardless of the field size, benefiting farmers and landowners as well as nature, landscapes, and local communities. Protections should be maintained for hedges in smaller fields. 

While young hedgerows are establishing, they require care and management; however, this should be covered through agreements between funders/delivery agents and landowners, rather than regulation. It is considered appropriate that hedgerows become protected five years after planting. 

No-cutting period 

The Tree Council strongly supports that a ‘no-cutting period’ is maintained to protect birds and other wildlife. This period should not be brought forward. Future discussions around extending the scope of this beyond bird species would be supported, however this should not delay the transition to the new regulatory system. 

At this point, TTC supports the retention of the current ‘no-cutting period’ – i.e. ‘Remain 1 March to 31 August’. This is to ensure that any regulatory gap is minimised, while retaining equivalent protections.  

However, there are worthwhile discussions to be had regarding regional variation in bird nesting season, and the impacts of climate change, which may extend or alter the nesting season. Extending the no-cutting period may also be beneficial to invertebrates and biodiversity more broadly. Changing these dates may prove complex and present practical difficulties for farmers, and so should be underpinned by discussions with key stakeholders and review of available evidence.  

Exemptions  

There is no justification for an exemption for farms under 5 hectares and this would result in a significant quantity of hedgerows becoming vulnerable to poor management practice. These hedgerows, and the wildlife dependent upon them, are just as important as those on larger farms. 

Enforcement  

The Tree Council has the following concerns regarding the enforcement of the legislation. 

We would urge Defra to create guidance on how the legislation would identify who is responsible for the management of a hedge. The present cross-compliance system identifies that the responsible party is the claimant of the BPS (Basic Payment Scheme). However, without clear guidance as to who is responsible, there is concern that hedges which lie between boundaries of landowners, managed by contractors or are under tenancy agreements could result in situations where it is not clear who the enforcement should be directed too.  

Whilst The Tree Council welcomes cooperation between the RPA (Rural Payments Agency) and farmers to ensure positive management outcomes, there are concerns that enforcement may be weakened by an ‘advice and guidance first’, response approach.  

Further to this, members are concerned that the involvement of two regulators may risk confusion and lack of clarity regarding which one is responsible for breaches. Poor management can lead to total degradation and loss of a hedgerow, so under the current proposals both the local planning authority and the Rural Payments Agency may have overlapping regulatory roles. 

Therefore, there must be clear, publicly accessible guidance on the roles of each regulator, and the steps that members of the public should take if they notice breaches of the rules. 

Both regulatory authorities must have adequate resources to carry out their statutory duties in a timely manner, and to work together to coordinate responses most effectively, and share relevant information and evidence. 

The proposed hierarchy or chain of enforcement responses is more complex than the current system. We support, in principle, the availability of a suite of different enforcement options, to be used in combination when needed, but there must be clarity and consistency over their use. There may be difficulties in determining whether non-compliance is wilful or accidental. Seemingly minor acts of non-compliance can be highly damaging to hedgerows when repeated, and there should be clarity over the proposed regulatory response to this.  

We appreciate that this enforcement approach is used by other regulators, e.g. the Environment Agency; we urge Defra to ensure that any key learnings are sought and acted on if it is to be used for hedgerow protection. Importantly, we emphasise the need for sufficient resourcing (both financial, systems, and skills) to deliver the new approach. 

This approach requires the provision of clear and transparent guidance for all stakeholders, including regulators, farmers/landowners, the public, sector organisations etc. We are concerned that this may result in further delays. 

The level of the fine, will need to be enough of a deterrent to mitigate against financial gains from breaching legislation, whilst still be in proportion to the damage caused. We would like to see more clarity on how this will be calculated and applied. 

Legislation gap 

Whilst unavoidable, The Tree Council is concerned by the gap in legislation following the end of cross compliance and new legislation coming into force. We would urge Defra to ensure this gap is as short as possible and include a communications plan with the farming community to encourage ‘normal practice’ during the regulation gap. 

Hedgerow definition 

TTC have several concerns around this proposed additional definition of an important hedgerow, as follows: 

1. There is no definition of hedgerows, which is a clear weakness. A definition should be included that covers hedgerows of different types, for example: Any boundary line of trees and/or shrubs less than 5m wide between major woody stems at the base, however short or tall. Any bank, wall, ditch or tree within 2m of the centre of the hedge is part of the hedge, as is any basal and marginal herbaceous vegetation. 

2. The inclusion of two separate definitions of ‘important hedgerows’ within one set of regulations risks confusion and misapplication. It is suggested that either different terminology is used to avoid confusion, or a single definition of importance is agreed. A definition that could be adopted is: Hedgerows that meet the requirements to be Section 41 Priority habitat – that is have at least 80% cover of native woody species. This would align the regulations with the NERC Act. Alternatively, it may be simpler to use a different word, avoiding confusion with the existing definition of ‘important hedgerows’. 

Future policy wish list 

We are pleased to see this question in the consultation and to hear that Defra is building a hedgerows policy team to increase the weight given to these crucial habitats and landscape features. 

• Protecting hedgerows in urban settings, and where there are land-use changes due to development in rural areas. 

• Improved communication with the farming community to encourage hedgerow gapping-up and establishment. 

• Encouraging holistic management for wildlife and climate mitigation. 

• Protection and establishment of hedgerow trees. 

• Improved sharing of information on hedgerows, e.g. publish a map of important hedgerows/designations, and compliance. 

• Improved links between regulatory authorities, farming community, and the public, so that efforts are more joined-up and collegiate. 

• Encouraging and incentivising rejuvenation by traditional and new methods. 

• Protection for hedgerows as important landscape and historic features. 

• Policies to improve the structural condition of hedgerows. 

We would encourage a gap analysis to be undertaken to identify which hedgerow types and in which settings there are insufficient protections. Understanding the levels of protection in place and identifying weaknesses would support the delivery of Defra’s hedgerow target and wider ambitions for the nation’s treescapes. All landowners and businesses should be encouraged to care for their hedgerows, not just farmers. 

• To contribute to Defra’s Consultation on Protecting Hedgerows, please visit www.consult.defra.gov.uk/legal-standards/consultation-on-protecting-hedgerows/ The deadline for submissions is September 20.

Jess Allan is The Tree Council’s Science & Research Action Manager; Annie Heslop is The Tree Council’s Life on the Hedge Project Manager. Find out more about the Life on the Hedge programme here

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