Select Committee on Environment, Transport and Regional Affairs Minutes of Evidence

Supplementary Memorandum by the Department of the Environment, Transport and the Regions (FB 7(a))


  1. This memorandum is submitted in response to a request from the Sub-Committee for further information on the extent to which legislation designed for other purposes (e.g., preserving archaeological sites, protecting Sites of Special Scientific Interest, enclosing common land) might indirectly protect field boundaries, drawing on relevant case law. It supplements paragraphs 17 to 24 of the Department's memorandum of May 1998.

  2. Although the Department is aware that legislation (other than the Hedgerows Regulations 1997) may exert control over possible changes to boundary features, information is not normally collected centrally on the degree to which field boundaries are covered by these provisions. For example, some trees in hedgerows will be the subject of Tree Preservation Orders because of their amenity value, generally requiring local authority consent to works on them, but the Department does not hold data on how many. Similarly, we have no information on how often operations on field boundaries are specified as potentially damaging to the nature conservation value of Sites of Special Scientific Interest, thereby requiring the consent of English Nature or the Countryside Council for Wales.

  3. However, attached are three examples of "scheduled" ancient monuments in England, considered to be of National Importance:

    —  Derbyshire—a site where dry-stone walls have been specifically excluded from the scheduling of a Roman and medieval field system; [20]

    —  Bedfordshire—a site where hedges are included in a scheduled area designed primarily to protect medieval ridge and furrow. [21]

  These examples demonstrate that the scheduling of field boundaries is related to the particular interest of the site and that the designations do not necessarily include all field boundaries in the system. As a result, scheduled field boundaries are rare. Where they do occur, works affecting them would normally require the prior written consent of the Secretary of State for Culture, Media and Sports or the Secretary of State for Wales.

  4. Also attached is a table of some walls which are "listed" for their special architectural or historic interest.[22] These focus mainly on walls related to buildings, property boundary walls, or to specific features such as wool walls. The consent of the local planning authority would be required for any works which affected the character of these listed features.

  5. As regards the Inclosure Acts, in 1996 Mr Colin Seymour and the Yorkshire Wildlife Trust brought a case against Flamborough Parish Council to prevent the removal of a hedgerow created under a local Inclosure Act and Award, which dated back to the 18th century. As this was regarded by the applicants as a test case, to establish the relevance of the Inclosure Acts for the protection of field boundaries—and represents the sum of recent case law on this matter—the remainder of this supplementary memorandum concentrates on the Flamborough case. It:

    —  explains the background to the Inclosure Acts;

    —  outlines the main points of the Flamborough judgment;

    —  discuses the wider implications of the judgment for the protection of hedgerows and other field boundaries created during the inclosure period.


  6. Inclosure was the mechanism whereby land formerly subject to rights of common was transferred to individuals, corresponding to the value of their interests, in such a way as to extinguish common rights.

  7. According to the report of the Royal Commission on Common Land in 1958, between 1700 and 1845 there were 4,804 private Inclosure Acts. These Acts generally had associated with them "Awards", which set out the detailed arrangements for the division and enclosure of the land. Each of these 4,804 Acts, and their associated Awards, were not necessarily expressed in identical terms.

  8. The Inclosure (Consolidation) Act 1801 was passed to bring together the provisions most commonly found in local Inclosure Acts. It provided, in section 10:

  9. The 1801 Act was replaced by the Inclosure Act 1845 (and other legislation which amended that Act). Section 83 of the 1845 Act provides:

    " . . . the several allotments to made, except the . . . allotments for public purposes, shall be inclosed, ditched and fenced at the expense of the respective persons to whom the same shall be allotted, in such manner and within such times as the valuer shall direct; and the fences so to be made shall for ever afterwards be repaired and maintained by such persons as the valuer shall direct . . . ".

  10. In the 1980s, the use of inclosure conditions as a means of protecting hedgerows from removal attracted interest. A 1984 research paper by Mr Colin Seymour drew attention to the potential importance of the statutory protection afforced to hedges and other field boundaries by the Inclosure Acts. However, there had been no court case to establish the principle beyond doubt, until Mr Seymour's Parish Council sought in 1994 to remove an inclosure hedge.


  11. The case concerned a hedge which ran along the boundary of a field that belonged to Flamborough Parish Council. It separated the field from a public road. All parties agreed that it was an inclosure hedge, planted under the provisions of the Flamborough Inclosure Act 1765 and subsequent Award.

  12. The Parish Council proposed to remove the hedge in order to provide a bowling green, of competition standard, on the site. Mr Colin Seymour, a resident of Flamborough, opposed the removal of the hedge on the grounds that the terms of the Inclosure Act and Award, under which the hedge was planted, required the Parish Council (as its owners) to maintain forever a living hedge on the site. He argued that, to destroy the hedge, would run counter to the Council's obligations under the Act and Award and sought a Declaratory Judgment to this effect. He was joined in the action by the Yorkshire Wildlife Trust.

  13. A Declaratory Judgment seeks an interpretation of the meaning of the law. The sole concern of the Court was whether the Parish Council remained bound by the terms of the 1765 Act and Award. Although it did not consider the merits of the proposed development, nevertheless the Court concluded that, if the Act and Award were found to be binding, it would retain discretion over whether or not to grant a formal declaration to this effect.

  14. The case was heard in Hull County Court by Judge Cracknell. After the initial hearing to determine whether Mr Seymour and the Wildlife Trust had sufficient interest (locus standi) to bring the case, the Parish Council withdrew because they were unable to fund the costs of the action. As a consequence:

    —  the Court heard only one side of the argument as to whether the law was applicable and whether the Court should exercise its discretion to grant a declaration, though Judge Cracknell indicated that he had tried to see both sides.

  15. The key points of the judgment, issued in January 1997, were:

    —  the Inclosure Award in question required the owner to "build and forever maintain a quickwood (or quickset) hedge" where it formed the boundary between the field and the road. "Quickwood" means a live hedge, as opposed to post and rails;

    —  the Flamborough Inclosure Act 1765, from which the Award derived its authority, had not been repealed. The statute, therefore, remained in force, even though it was old, and Flamborough Parish Council were caught by its provisions;

    —  as the hedge bounded a public highway, it was for the benefit not only of the owner of the field but also of the public generally. In these circumstances, the obligations imposed by the Act and Award were not exclusively private but affected the public interest and so could be enforced by aggrieved local inhabitants (e.g., Mr Seymour) or organisations with sufficient interest (e.g., Yorkshire Wildlife Trust), even though they would not suffer direct damage as a result of the Parish Council's proposed removal of the hedge;

    —  the Judge concluded that there were no strong reasons in public policy to deny the declaration sought. Indeed, the public interest suggested it was the duty of all local authorities to obey the law and the right of their constituents to have that duty declared in appropriate cases where no other substantive remedy exists;

    —  accordingly, he issued a declaration that Flamborough Parish Council was required by statute forever to maintain that portion of the quickset hedge in the ownership of the Council which formed the boundary between the parish allotments and the highway running from Flamborough to Bempton and known as the Bemptons Road.


  16. Judge Cracknell himself pointed out that the outcome in the Flamborough case depended on the wording of the particular Inclosure Act and Award, and that each one of over 4,000 such Acts might be expressed in different ways. He warned, therefore, that "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 to 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."

  17. However, the judgment illustrates that:

  18. As noted in paragraph 13 above, in any case, the Courts have discretion whether to enforce the obligations imposed by Inclosure Acts and Awards. The tests and arguments used by the Court, in deciding that Flamborough parish Council should continue to maintain the hedge, may be applied if other cases are brought to Court.

July 1998

19   English Heritage, National Monument Nos. 15205 and 15273. Back

20   English Heritage, National Monument Nos 29830 and 29831. Back

21   English Heritage, National Monument No. 29893. Back

22   Information supplied by English Heritage. Back

23   Whilst the Flamborough case established the possibility of enforcement of Inclosure Award provisions by somebody not directly affected, the possibility of enforcement by an adjoining owner (who is directly affected) has been recognised for many years. See Garnett v Pratt [1926] Ch 897, in which enforcement action by a neighbour succeeded. Back

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