Hedgerow Protection

Prayers – in the House of Commons am 12:59 pm ar 26 Chwefror 1997.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Mr Peter Hardy Mr Peter Hardy , Wentworth 12:59, 26 Chwefror 1997

The House will probably agree that, through the generations, the English landscape has brought pleasure and inspiration to many thousands of people. Our literature and our art have benefited from it and the quality of life of many millions of people has been enhanced. The hedgerow is an important part of that landscape and, given the confusion that exists and has existed for some time, it is reasonable that the House should consider the matter carefully.

I first became interested in hedgerows long ago, but in the early years of my parliamentary service, I took a particular interest in the protection of species. I then began to realise that it was no good protecting species if the habitat was destroyed. For almost 10 years, I served as chairman of a committee concerned with the natural environment in Europe and I played a part in setting up the Berne convention, which most civilised countries in Europe have signed and begun to implement, and which the Government ratified quickly and implemented through the Wildlife and Countryside Act 1981.

During the deliberations on that Act, my hon. Friends the Members for Denton and Reddish (Mr. Bennett) and for Linlithgow (Mr. Dalyell) and I sought hard to persuade the Government to ensure that hedgerow protection was included in the measure, but they declined. Just before then, I had made one attempt to secure hedgerow protection, by urging the Government to extend tree preservation orders, for what they are worth, to cover important and significant hedgerows. The Government declined. [Interruption.] I am pleased that my hon. Friend the Member for Linlithgow has just returned. I mentioned him a moment ago.

After the 1981 Act, I secured and prepared a Bill with the assistance of the Royal Society for the Protection of Birds to protect some hedgerows—those that we felt were significant. It had all-party support; frequently, such initiatives have not been of a partisan nature. Only the Government have been obstructive. That Bill would have provided a sensible framework for protection, but it was rebuffed by the Government. It would have protected the skeleton of hedgerows that we needed to safeguard—all hedgerows by highways, footpaths and bridleways, and hedgerows that were boundaries of farm and of parish—but the Government said that the problem had ended, that the destruction of hedgerows had virtually ceased and that there was no need for legislation. Destruction went ahead. Thousands and thousands of miles of hedgerow have gone since then.

At about that time, Mr. Colin Seymour was conducting research in west Yorkshire and I did some in south Yorkshire. I then realised, as did he and other people, that the pre-1840 Inclosure Acts were significant and important and had been foolishly disregarded. If one assumes that the average area in each of the 4,000 parishes was 1,500 acres, that means that there were almost certainly 45 miles or so of hedgerow in those inclosed fields, formed from the commons. The invariable requirement in those Acts was that the fields formed from the common land and given to local landowners—fields taken from the people—were to be surrounded by thorn fences or hedgerows, and protected from then on and for ever.

Obviously, changes have been required, but Parliament allowed those Acts to be neglected. When I first raised the matter in the House, a junior Minister with responsibility for agriculture said that those old Acts no longer applied, but they do, because only that which Parliament says can be taken away can be taken from that which Parliament gives. Some time later, I asked the Minister to declare locus standi or to issue a statement to clarify the matter, because people should not be left in confusion.

I said to one of the Ministers responsible for agriculture at the time—Earl Ferrers, who is now a Minister in the Department of the Environment—"I suspect that, in the 20 or 30 years until now—from the time of the Agriculture Act 1947, I think—it is highly likely that taxpayers' money has been given to people to grub out inclosure hedgerow, which the law says should be protected." The Minister was quick on his feet and replied, "Yes, but it is not our fault. It is the applicant's fault. The applicant for such a grant should be satisfied that he is entitled to remove the hedge." I suspect that many of them received grant when they were not entitled to it. One should be a little more careful with public money.

The laudable scheme to give people grant to replant hedgerows may have been used to remove them, when they had been protected by the House—the protection was given a long time ago, but it is still valid. I hoped that the Government would see sense and come to an arrangement with the conservation bodies and hon. Members on both sides of the House who were concerned about the matter.

I was on the council of the RSPB when its centenary celebrations began at King's Cross station. British Rail had named a railway engine "The Avocet", the emblem of the society. The society inappropriately invited the then Prime Minister to be the guest speaker, and what a splendid speech she made. She called in clear and specific terms for us to recognise that we were the custodians of our natural heritage and that hedgerows should be protected as a matter of importance.

I was delighted because I was presenting my Bill again, amended to suit the wishes of the Country Landowners Association and the National Farmers Union, that very afternoon. I did not go off to the junket tea that followed the session at King's Cross station, but came to the House to present the Bill, with the words of the Prime Minister echoing in my ears. Conservative and Labour Members alike gave support. I am delighted to see the hon. Member for Warwick and Leamington (Sir D. Smith), who has been stalwart in defence of the proposal.

The Bill came up for Second Reading, and guess what happened? On the instructions of the Prime Minister, the Whips were instructed to block the Bill. Hon. Members may imagine that there was some acrimonious correspondence, and comments were made in Committee afterwards.

Therefore, hedgerow protection continued to be ignored. Destruction continued apace, with the Government's encouragement, and some ruthless landowners let their side down badly, but the Government recognised that their position was not particularly popular, so in 1992 they presented in their manifesto, as the Under-Secretary of State for the Environment will confirm, a clear pledge to introduce hedgerow protection. Nothing happened.

Then the hon. Member for East Surrey (Mr. Ainsworth) was drawn in the ballot. Although he did not secure all-party support and did not try, he presented a Bill. Unfortunately, some Conservative Members who are not here today savaged the Bill in Committee. The Bill was defended by my colleagues and me. It came back to the House and it was talked out by Conservative Members. I was accused of making a bad-tempered speech, and I did, because I did not like the way in which a few people were apparently defending their rights and privileges against the interests of the majority of this generation and past generations, and those to come, who should continue to have the uplifting of spirit that the hedgerow in Britain provides as part of our essential landscape.

In 1987, I tried again and presented a Bill, again with the support of hon. Members on both sides of the House. The Government were going to take a neutral position, but the Bill was blocked on two occasions by individual Conservative Members, one of whom—a Welsh Member and former Minister whose constituency I have forgotten—when challenged by conservationists in his constituency, said that my Bill would have stopped people trimming their garden hedges, which was completely untrue. I retaliated in Committee shortly afterwards, by objecting to his presence on the ground that he was illiterate.

Some years before those events, I invited conservation bodies to mount an inclosure hedgerow case, because the last relevant one was in the 1920s. It was Pratt v. Garrett and it confirmed our position. The national bodies did not embark on a test case, but Yorkshire wildlife trust, of which I am patron, assisted by Mr. Seymour, or the other way round, started an action to safeguard a clearly protected inclosure hedgerow in Flamborough. In July, the judge declared locus standi. Some time before that, the Government refused to make a declaration, which would have saved much money and bother. As I was sure that we would win the case, I asked the Government to consider the position if the judgment on the Flamborough hedge confirmed our view and whether draft regulations, which were being prepared, would take proper account of a favourable judgment. Unfortunately, they did not.

The judgment was delivered in December. The Minister is a barrister and must have respect for that judgment, which was a masterly piece of historical appraisal. It was superb in law and should be highly regarded. That distinguished judgment confirmed that 4,000 Inclosure Acts relating to 4,000 parishes invariably required that the common land be inclosed in fields and be perpetually surrounded by hedgerows, which should be properly maintained. Instead of properly respecting that judgment, the Government said that every case would have to be fought separately.

Does the Minister want 4,000 Flamboroughs before the courts? Unless the Government are reasonable, I shall encourage every county trust and every local naturalists group and conservation group to carry out some homework in their libraries. That is already happening because of the Government's inertia. Let us have 10,000 Flamborough judgments. The legal system does not want that and there is no need for it. The commonsense approach that I urged in 1982 should have been applied before and ought to be applied now.

Photo of Mr Dudley Smith Mr Dudley Smith , Warwick and Leamington

The hon. Gentleman is aware of my support for his general thesis. Is he aware that, although we have not reached the end of the second month of the year, in Warwickshire 3,500 m of hedgerows have been stripped away in a very short time, some of them in Sherbourne in my constituency? Warwickshire wildlife trust, an admirable body which works hard, thinks that some farmers and landowners are deliberately trying to pre-empt Government moves in the right direction.

Photo of Mr Peter Hardy Mr Peter Hardy , Wentworth

I think that that is the case. The Government made their promise in 1992 and have not done anything about it other than to offer the recent proposals. As a result, much of what the hon. Gentleman mentions has been going on. I am glad that he referred to his county trust. I hope that it is checking to see whether any of the hedgerows that he mentions are inclosure hedgerows. If they are, legal action of the type that I mentioned could be taken.

The Government thought long and hard and it took them years to produce draft regulations. I am worried about them because, for example, they give local authorities 28 days to decide whether a hedgerow is worth having. It seems to have escaped the Government's notice that local authorities do not have much fat. By and large, they are leaner and more efficient than the Department of the Environment, but their officers are not able to drop everything and spend up to 28 days checking hedgerows. What on earth are those officers to do when there is snow on the ground? How can they carry out an ecological assessment and check the plant species in a hedgerow when they cannot see them? Has it escaped the notice of the Department of the Environment that many plants die down in winter and cannot be counted?

As I said, council officers are supposed to carry out an ecological assessment, to see whether a hedgerow and the number of species in it are sufficient to meet the requirements, but there are other silly requirements. Tree species in hedgerows have to be pure bred. The Minister knows south Yorkshire and has made some unsuccessful political forays into it in his time. In that area, the hedgerow oaks tend to be hybrids of pendulate and sessile oaks. Although they are hybrid, they are natural to our area. Unfortunately, I cannot find any pure-bred oaks in my constituency. I walk the footpaths regularly and I think that the oaks there are hybrid.

Sycamore cannot be included, but that species has been growing in Britain for many years. I think that chestnuts are also excluded. Some imported plants can be counted, but not native brooms or currants. It is absurd that we have waited so long for regulations, which are defective and which place local authorities in an impossible position. I pay tribute to my local authority. I understand that it met Yorkshire wildlife trust a few days ago, when it recognised the law and appreciated that it has a responsibility to comply with it. I hope that local authorities in Yorkshire and elsewhere will draw up lists of inclosure hedgerows within their metropolitan or county boroughs. Such action would be useful and responsible, and it would assist and provide guidance for future generations.

Although I am not a conservation scientist, I urge the Minister to have detailed conversations with the learned and expert conservation bodies, to ensure that some of the farcical measures in the draft regulations are put right. The Government have days—it should be hours—until the election, to act sensibly and at least seek to fulfil their 1992 promise. In the five years since then, hedgerow destruction has proceeded apace, and perhaps illegal action, to which the Government have turned a blind eye, has been taken. We do not want any more blind eyes: far too much damage has been caused to the British landscape over the past 40 or 50 years, and the Government bear a heavy responsibility for much of it. I hope that in their last few days they will act in a way that will allow us to breathe at least a slow sigh of relief.

Photo of James Clappison James Clappison Parliamentary Under-Secretary (Department of Environment), Shadow Spokesperson (Home Affairs) 1:16, 26 Chwefror 1997

I welcome the opportunity to respond to this debate, on an important subject. I appreciate the long-standing interest and experience of the hon. Member for Wentworth (Mr. Hardy) in the subject.

I am grateful for the chance to outline the stage that the Government have reached on the regulations to protect important hedgerows. I shall deal first with inclosure hedgerows and the case involving Mr. Colin Seymour. The hon. Gentleman spoke about the recent court case over an inclosure hedgerow in Flamborough, which sparked some public interest and involved Mr. Seymour as a plaintiff.

I understand that the Flamborough hedgerow was widely acknowledged to be of little value as a wildlife habitat and in poor condition. His Honour Judge Cracknell, to whom the hon. Gentleman paid generous and accurate tribute and who is a distinguished judge, described the hedgerow as "a singularly undistinguished hedge". Nevertheless, Mr. Seymour obtained the judgment that he sought, that Flamborough parish council remains bound by the terms of the Flamborough Inclosure Act 1765 and the subsequent award to maintain the hedge for ever.

There was a great deal of speculation at the time that the judgment confirmed that all inclosure hedgerows are protected. That is far from the case, according to a reading of the judgment. A number of factors must be taken into account. First, because the parish council withdrew from contesting the case, the judge heard only one side of the argument. Secondly, in the case, there was no disagreement between the plaintiffs and the parish council that the hedgerow was the subject of the Inclosure Act, nor was there argument over its location and ownership.

More significantly, although the judge made it clear that the obligation that was created by the Flamborough Inclosure Act 1765 and the subsequent award still existed, it is worth quoting from the closing words of his judgment: Can I, before granting this relief, express one word of caution. As I indicated, there are over 4,000 such Acts and each one may be expressed in subtly or seriously different ways. Whether a provision is binding as I find this one to be, has to be judged in each individual case. It would be wrong therefore to read too much into this case in terms of its significance for roadside hedgerows generally or for the ability of individuals or organisations to claim the support of the Courts for a particular hedgerow.

Photo of Mr Peter Hardy Mr Peter Hardy , Wentworth

I have examined many inclosure measures, and, although I accept that there could be individual variations, every single one that I have seen and every single one that I know about—over the years, many have been drawn to my attention—specifically and clearly contained the Flamborough conditions, which I mentioned. I would not dream of suggesting that every one of the 4,000 measures contains the conditions, but every one that I know of does.

Photo of James Clappison James Clappison Parliamentary Under-Secretary (Department of Environment), Shadow Spokesperson (Home Affairs)

I appreciate the hon. Gentleman's experience in those matters. However, the judgment demonstrates that obligations arising under Inclosure Acts and awards may still be enforceable and that, in appropriate circumstances, the court may find that a local resident has sufficient interest to challenge the failure of an owner to carry them out.

The hon. Gentleman also referred to hedgerow regulations. The Government's policy on hedgerow protection is based on the results of a survey of hedgerow changes in England and Wales between 1990 and 1993, which the Department of the Environment published in July 1994. The survey showed some welcome trends. The rate of hedgerow removal, for example, more than halved, to approximately 3,600 km per year, compared with 9,500 km per year between 1984 and 1990, which was the period covered by a previous survey. Furthermore, the rate of gain from new planting increased to 4,400 km per year, so that gains now more than balance losses from removal. The Government therefore wish to focus protection on the most important hedgerows, for which no new planting is a substitute, and which remain vulnerable to removal. One example is an ancient parish boundary hedge.

The Government therefore took powers, under section 97 of the Environment Act 1995, to introduce regulations for the protection of important hedgerows. The views of both environmental and conservation bodies and of those who would be subject to the regulations were considered, and research was commissioned to develop and field test a set of evaluation criteria that could be used in the scheme. Draft regulations were consequently published—on 21 October 1996—for consultation, with a closing date for responses of 2 December 1996. In announcing the publication, my right hon. Friend the Secretary of State for the Environment said that he considered that the proposals struck the right balance between providing effective environmental benefits and minimising the impact on farmers.

The proposal was for a notification system, under which landowners would be required to notify the local planning authority of their intention to remove a hedgerow. It would then be for the authority, using the set of evaluation criteria, either to give or to refuse consent to the removal. There were provisions for a right of appeal for the applicant against an authority's decision and for criminal offences relating to hedgerow removal in contravention of the regulations.

A fundamental component of the protection scheme is the set of criteria that authorities are to use in identifying hedgerows of significant historic, wildlife or landscape value. For the scheme to operate in as transparent a manner as possible, and to limit objections to any decisions made, it is important that the criteria be applicable on a national basis and not rely on local discretion. A degree of detail is necessary if those who will be affected by the regulations are to have confidence in them.

Concerns have been expressed over the percentage of hedgerows likely to be identified as important under the system. We have said that the figure is likely to be about 20 per cent., although I must acknowledge that that estimate is based on a limited field study. Therefore, a more realistic figure will become apparent only once the scheme has been established.

Many of the bodies representing environmental and conservation interests have said that a higher percentage of hedgerows should be protected, or even that protection should be extended to all hedgerows. Conversely, bodies representing landowning interests have suggested that the percentage should be lower. It would be wrong to put a percentage on the number of hedgerows that we should like to be protected. The number will become apparent only once the scheme is in operation. We are far more concerned to ensure that the removal of important hedgerows is controlled.

More than 500 responses were received to the consultation, representing a wide range of views and raising a number of issues, which the Government have had to consider carefully. Differences of view were inevitable over the proposals, although we have been encouraged by the fact that most respondents supported the framework of the proposed notification system.

There are detailed matters to be considered, and we must take them into account when making any necessary amendments to the draft regulations. We are also mindful of the fact that the primary aim—to protect important hedgerows—should not be compromised. The effort to define the terms of protection for hedgerows, in a manner that is sufficiently precise to provide certainty for both landowners and local authorities, has proved significantly more difficult than expected. In the very near future, my right hon. Friend the Secretary of State hopes to make an announcement of our proposed way forward. Meanwhile, today's debate has made a positive contribution.

Photo of Mr Tam Dalyell Mr Tam Dalyell , Linlithgow

What is the difficulty with the definitions in the 1981 Act? My hon. Friend the Member for Wentworth (Mr. Hardy) and I were involved in that 100-hour Committee stage.

Photo of James Clappison James Clappison Parliamentary Under-Secretary (Department of Environment), Shadow Spokesperson (Home Affairs)

The responses that we received in the consultation period identified some important questions on detail in the regulations. It is necessary to examine the criteria very carefully, because a great deal rests on their detail. However, I am sure that, in its way, today's debate is an important contribution.

Photo of Mr Peter Hardy Mr Peter Hardy , Wentworth

I started my speech by mentioning the landscape. I should like to make a point that is concerned less with the landscape than with general ecology.

The Minister will be aware that a vast number of bird species—such as the song-thrush and, this week, the bullfinch—have been recorded as suffering enormous decline. Many of them are hedgerow species. The Government say that their measure might be relevant to only 17.5 per cent. of our hedgerows. If we are to concern ourselves with only 17.5 per cent. of our hedgerows, arresting the decline in species that were once common in England will not work, and there will be a continued decline and perhaps a disappearance of many species that our grandparents regarded as common, but which our children and grandchildren will never see.

Photo of James Clappison James Clappison Parliamentary Under-Secretary (Department of Environment), Shadow Spokesperson (Home Affairs)

The hon. Gentleman certainly makes his point on the wildlife conservation value of hedgerows. In framing the draft regulations, we believe that we have borne that value in mind.

Photo of Mr Dudley Smith Mr Dudley Smith , Warwick and Leamington

Will my hon. Friend bear in mind the point that I made about those who are trying to pre-empt the scheme? I very much welcome the scheme. Will he do something about those who wish to pre-empt it?

Photo of James Clappison James Clappison Parliamentary Under-Secretary (Department of Environment), Shadow Spokesperson (Home Affairs)

My hon. Friend again makes an important point. However, I think that he will agree that, on such an issue, it is important to get the details right. We have made it clear that, through the regulations, we aim to protect important hedgerows.

Photo of Mr Tam Dalyell Mr Tam Dalyell , Linlithgow

I tabled a question on songbirds to the Department of the Environment. Consequently, after limited publicity, I received letters from across the country. There is great public concern about the disappearance of familiar songbirds. Other than a lack of food—especially a lack of food before winter—and differences in stubble treatment, the vast increase in sparrowhawks seems to be a factor in their disappearance. Hedgerows give some protection against sparrowhawks.

Photo of James Clappison James Clappison Parliamentary Under-Secretary (Department of Environment), Shadow Spokesperson (Home Affairs)

The hon. Gentleman makes an important point. We are certainly concerned about the songbird population and are dealing with its decline in a number of ways. He will know that, on a wider plane, our biodiversity action programme embraces some songbird species. He will also know of the work that we are conducting through the pesticides forum, to give one example, to address that issue, which may affect songbirds.

We have had some well-informed contributions today, which have moved forward the debate on this important subject.