As part of the transition to a new domestic agriculture policy in England following the UK exiting the EU, Defra is looking at the environmental safeguards that need to be in place following the ending of cross compliance in 2023 and where those safeguards do not exist in existing domestic legislation.
One area that Defra is looking to ensure measures remain in place is around the management of hedges which currently only exist in cross compliance.
Defra's consultation explained
Defra have two options that they pose in the consultation on how to regulate hedgerows post cross compliance, these being:
Option 1: rollover existing cross compliance rules
Initially rollover existing cross compliance rules, looking at the definition of important hedges, followed by a second stage of broader protections.
Defra state that it could simply replicate the existing cross compliance requirements in domestic law, by making changes to the Hedgerows Regulations 1997 to include hedgerow management measures that would sit alongside existing provisions relating to removal of hedgerows in England.
Timescale: This could be introduced in Summer 2024 as a minimum level of protection. It is said to be the quickest way to ensure that basic hedgerow management actions become legal requirements and would provide a set of measures that would be familiar to the majority of farmers and land managers.
The measures Defra could replicate are set out below:
1. Maintaining the current GAEC 7a requirement to ensure green cover on land 2 metres from the centre of a hedgerow (on all fields over 2 hectares). Cross compliance requires that green cover be maintained on land around a hedgerow. This means that cultivation on this strip of land is prohibited.
2. Maintaining the current GAEC 7a requirement not to spray pesticide or fertiliser on land within 2 metres of the base of a hedgerow (on all fields over 2 hectares).
3. Ensuring that hedge cutting and management takes account of wildlife within hedgerows and supports biodiversity. Under cross compliance, cutting hedgerows is prohibited between 1 March and 31 August to protect nesting birds and their food source.
4. Introducing a new definition of an ‘important’ hedgerow in addition to the existing definition in the Hedgerows Regulations 1997. Hedgerows are currently defined as ‘important’ if they have existed for 30 years or more and they meet one or more of the criteria set out in Schedule 1 of the Hedgerows Regulations 1997 (for example, if they contain species of wildlife). If a hedgerow meets this criterion, there are provisions in place to prohibit its removal. This definition with regards to the removal of hedgerows will remain the same.
5. Exemptions to the regulations. Currently, under cross compliance, you can apply to cut or trim hedgerows for the purposes of sowing oilseed rape or temporary grassland during the month of August. At present, you must apply to the RPA explaining why you wish to cut or trim a hedgerow and the land parcel it will affect. Hedges can also be cut without a derogation via exemptions to manage a hedge which overhangs a highway, road or footpath over which there is a public or private right of way. There are also exemptions around out hedge-laying or coppicing during the period 1 March to 30 April (inclusive) and trimming a newly laid hedge by hand, within 6 months of it being laid.
Farmers are also exempt from keeping green cover on land within 2 metres of the centre of a hedgerow if the land parcel is 2 hectares or less, or if a hedgerow is less than 5 years old. Defra are seeking views on whether they should also replicate these exemptions.
Who could be affected by these proposals in this option and how could they be avoided?
For farmers who were not receiving payments under BPS, have a Rural Development (RD), Countryside Stewardship (CS) or Environmental Stewardship (ES) agreement where it is a requirement to adhere to cross compliance rules (including the rules applicable to managing hedgerows), these would be new requirements. To minimise any additional burden from these requirements, Defra is considering an additional exemption for farms under 5 hectares, to mirror the BPS eligible land.
Option 2: alternative approach
Rather than simply replicate the existing requirements as soon as possible, Defra states it could look to develop new legal protections for hedgerows.
This could give Defra more flexibility to shape its hedgerow policy to help achieve environmental and net zero outcomes. It could also allow scope for considering applying protections to a broader range of hedgerows, beyond just those on agricultural land.
Defra is interested in views on what requirements would be the most effective at preventing environmental harm without unnecessary burdens on farmers or others with hedgerows on their land.
Timescale: If Defra needs primary legislation, this could begin no sooner than Autumn 2024. This would mean measures coming into force late 2025 at the earliest.
Who will be affected by these proposals?
Defra states that amending the Hedgerows Regulations 1997 to include management measures would impact on all farmers and land managers in England who have hedgerows on their agricultural land, aside from those covered by various exemptions.
Those who are already governed by cross compliance requirements would not be subject to any additional burden because of these proposals.
Civil sanctions
Defra is also looking at how hedges are currently regulated, the sanction regime which could be applied and what would be the best approach going forward.
Defra states that it is not proposing any changes regarding the removal of hedgerows at this time.
Depending on the outcome of the consultation, it envisages the RPA being the regulator looking after the management of hedges.
Defra is proposing to introduce civil sanctions; this would ensure there are a range of measures to suit individual circumstances.
An example of a harmful activity would be spraying herbicides too close to a hedge destroying it as both a landscape feature and wildlife habitat. In this example, the harm could have been an accidental oversight or a deliberate action. The areas damaged could vary in size and would therefore need to be addressed in very different ways.
The sanctions Defra propose to make available to the regulator will be:
Stop notices: these would prohibit a person or company from performing a harmful activity, until mitigation measures have been put in place. The regulator must justifiably believe that the activity will cause or present a significant risk of causing serious harm to the environment, and that without the stop notice the person committing harm will continue.
Compliance notices: these would require a person to take specific or measured steps in a fixed time frame to prevent harm from continuing or reoccurring. This can be seen as a sanction for the increased severity of harm, with guidance given to try and rectify harms to the environment.
Restoration notices: A restoration notice carries the requirement to rectify damage resulting from non-compliance.
Fixed monetary penalties: Fixed Monetary Penalty (FMP) is a financial tool to penalise non-compliance. The regulator must be satisfied beyond reasonable doubt that the person or company has committed the offence. Unlike a VMP where there is discretion for the regulator to set the amount of penalty, the value of an FMP is determined using specific criteria or is specified in a Ministerial Order.
Variable monetary penalties: A Variable Monetary Penalty (VMP) requires a financial penalty to be paid to the regulator, with the value at the determination of the regulatory body. Although the regulator can determine the value of the penalty, guidance will be published directly from the regulator setting out the matters likely to be considered when determining the amount. VMPs may be used in conjunction with other sanctions.
Defra states that a process of appeal will be introduced for anyone who believes any applied sanctions were unfair, unreasonable or based on an error (either of law or facts).
