Cornish Hedge

Cornish Hedge

Postby Archimart » Mon Apr 25, 2016 11:41 am

My home in Cornwall is part of a new development (2003) on a brownfield site and backs onto a road separated by a Cornish Hedge. Documents we were issued by the developer when we originally purchased, and lodged with Land Registry, show that our land extends to and stops on our side of this Cornish Hedge. The original planning approval site plan drawing for the development also notes that the Hedge is outside the site boundary. We recently had need to clarify the maintenance of this Hedge with Cornwall Council who are stating that their records indicate the extent of the Council Highway only reaches the toe of the hedge (ceases at the edge of the carriageway). They also state that they would anticipate, as the adjacent landowner, I am therefore responsible for the maintenance of the hedge. The council have however, been maintaining the highway side of the Hedge with their hedge trimmers for several years and I cut back any overgrown plants and saplings on my side to keep the hedge tidy. I am concerned that should a vehicle on the highway cause damage to the wall, or it generally becomes unstable, I would become responsible for the rebuilding at great cost. Can anybody advise on my course of action to sort out this problem.
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Re: Cornish Hedge

Postby cleo5 » Mon Apr 25, 2016 2:08 pm

They can anticipate all they want but if the hedge is not on your deeds then it's theirs and up to them to maintain it and you can trim your side. Since you have seen the original planning you know it is not yours.
Are there trees or a hedge on top of it?

Usually the hedge belongs to the farmer or householder whose land it borders.

CCC does its own thing - so don't take what they say as gospel unless they can prove it.
Was your house built on land formerly owned by the council ?
Meantime don't worry about the stone hedge taking a knock as they can withstand quite a bit and since it is not on your deeds you don't have to maintain it.
Perhaps take out a bit of extra insurance on boundary/fences/walls etc just in case as they can be quite expensive to repair- unless you do it yourself.
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Re: Cornish Hedge

Postby arborlad » Mon Apr 25, 2016 3:49 pm

Archimart wrote: We recently had need to clarify the maintenance of this Hedge with Cornwall Council who are stating that their records indicate the extent of the Council Highway only reaches the toe of the hedge (ceases at the edge of the carriageway). They also state that they would anticipate, as the adjacent landowner, I am therefore responsible for the maintenance (and ownership) of the hedge.



That has always been my understanding.
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Re: Cornish Hedge

Postby Collaborate » Mon Apr 25, 2016 5:01 pm

It all depends on the detail in the plan attached to the transfer deed, and any description of the land in the wording of the deed.

If it clearly excludes the hedge, then it's not your responsibility. It will therefore either still be owned by the developer, or will always have belonged to the LA.

Assuming that it was registered land that you took a part of, you may have to look at earlier deeds to find out whether your title includes the hedge.
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Re: Cornish Hedge

Postby arborlad » Mon Apr 25, 2016 11:21 pm

Collaborate wrote:If it clearly excludes the hedge, then it's not your responsibility. It will therefore either still be owned by the developer, or will always have belonged to the LA.



I think that's highly unlikely - the developer would have to be shown as an intervening landowner between the OP and the LA.
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Re: Cornish Hedge

Postby Collaborate » Tue Apr 26, 2016 7:20 am

I agree in normal circumstances it would be unlikely. However Archimart says in their original post
show that our land extends to and stops on our side of this Cornish Hedge


We can't claim to know better at this stage, and have insufficient information to say which of the 2 own the hedge. As far as OP is concerned, all that they need to know is whether or not they actually own it.
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Re: Cornish Hedge

Postby Archimart » Wed Apr 27, 2016 12:15 pm

Thank you for your comments. CC have sent me another email with the following

"The Highway Authority is rarely responsible for adjacent boundary walls or hedges. Having checked the historic plans (1875 – 1901 OS maps) for the area, I can confirm that, prior to the building of the estate, the hedge line existed in its current position and served as a field boundary. Thus, would not be Cornwall Council’s.
If you refer to the Land registry website, whether shown on Land registry plans or not, there is a presumption that landowners adjacent to the Highway actually own to the centre of the highway (unless the highway is registered). Consequently, I believe as the adjacent landowner you are responsible for the hedge along your curtilage."

Our house is in a development that replaced a disused British Rail station. On the 1875 OS map it shows the site in question as open with a single rail track running through it along one side but no station. I believe the main part of the site was a market garden at the time. It would appear that the rail company took over the remainder of the site to build the station platform and lay sidings. The site was sold to the developer by British Rail. As I pointed out, our purchase documents show the red line around our plot to the inside of the Cornish Hedge. Perhaps in law the developer still owns the Hedge although the developer's company used to build the houses has been dissolved?
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Re: Cornish Hedge

Postby Collaborate » Wed Apr 27, 2016 12:37 pm

A presumption is just that - a presumption: it is therefore capable of being rebutted.

Those whose legal knowledge is more rooted in property law (unlike my own family law background) may correct me, but I believe the presumption developed to deal with conveyances where the dimensions of the plot sold were uncertain, perhaps due to there being no clear plan.

Only you know how definitive your plan is. You could either upload it to the site, or to an external site and post a link.
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Re: Cornish Hedge

Postby MacadamB53 » Wed Apr 27, 2016 2:20 pm

Archimart,

our purchase documents show the red line around our plot to the inside of the Cornish Hedge.

as you've already been correctly told by the CC the law has it that - unless evidence proves otherwise - a property which abuts a highway includes that part of the highway which it abuts (to the centre of that highway).

that is the case whether it's maintained at public expense (aka "registered", as the CC put it) or otherwise - the only difference being that the top two spits of land have been given over to the HA to maintain.

the "purchase document" you refer to is undoubtedly the title plan for your property.

the red line has been marked onto an OS so that anybody wishing to know where that property described in the register might be can more easily find it.

what you must understand is that the title plan cannot be used as evidence to rebut the above legal presumption

this is because it is standard HMLR practice to exclude any land which appears to be a highway when creating a title plan even when they are presented with irrefutable evidence that it should be included.

Kind regards, Mac
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Re: Cornish Hedge

Postby Collaborate » Wed Apr 27, 2016 2:55 pm

MacadamB53 wrote:what you must understand is that the title plan cannot be used as evidence to rebut the above legal presumption

this is because it is standard HMLR practice to exclude any land which appears to be a highway when creating a title plan even when they are presented with irrefutable evidence that it should be included.

Kind regards, Mac


Mac

Do you have an authority to back that up? Any evidence can be used to rebut a presumption. A clearly drawn boundary in a plan can do just that, particularly if it is drawn on the house side of a boundary feature, as in this case.
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Re: Cornish Hedge

Postby arborlad » Wed Apr 27, 2016 3:01 pm

Archimart wrote:My home in Cornwall is part of a new development (2003) on a brownfield site and backs onto a road separated by a Cornish Hedge. .



Do you have neighbours on either side of you with the same Cornish hedge, what is their understanding of the situation.

I can't ever remember a situation where the councils assumption isn't correct in these circumstances.
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Re: Cornish Hedge

Postby cleo5 » Wed Apr 27, 2016 3:16 pm

That is much clearer now.
The land was originally farmland. The railway went through a bit of it.
The stone hedge it would seem was included in the parcel sold off for building or whatever and so your boundary bit is now yours.
We have similar things all round here. The stone hedges that border the highway are owned by the householders or by the farmers where the bits of land in between are still used agriculturally.

I think if the council say the hedge is yours then go with that.
The deeds should have said "up to and including the stone wall."
If anyone knocks into your wall then they will have to pay to repair it. Only a bad accident would cause it to need substantial repair and then the vehicle owners insurers would have to pay. Put up CCTV if you are worried and then relax. Check your insurance for cover just for added peace of mind.

keep any trees/ hedge atop the wall at a manageable height.
In 38 years I have only seen one small bit of Cornish hedge demolished by a car which then bounced back into the road and the owner was shaken but unhurt.
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Re: Cornish Hedge

Postby Collaborate » Wed Apr 27, 2016 4:30 pm

Do excuse me if I'm being a bit thick, but what we have here is apparently a developer who owns land up to the edge of a road.

That land is built on, and the plots all sold.

If that developer carefully plots the boundaries of each sale, such that the boundary is on the side of the stone wall internal to the garden, leaving unsold the wall & hedge and the land between that and the road, then there is no way on earth that OP owns the stone wall and hedge.

No matter what the LA says about it.

The LA is not endowed with special power to make binding pronouncements. It is in their interest to declaim responsibility for the wall, and that OP, and not the now dissolved developer, is responsible.

The question here is what did the developer sell - unless OP comes back and posts a copy of the plan, we cannot start to guess.
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Re: Cornish Hedge

Postby cleo5 » Wed Apr 27, 2016 4:59 pm

Collaborate,
I agree with you but it seems really strange that the developer would sell the land for the house down to and not incl the hedge especially with the road abutting- thus leaving the stone hedge in no man's land?
It seems to make no sense- unless the developer sold it to the council? and it seems that didn't happen.
If the op has neighbours who each have a bit of the hedge bordering their property then maybe one of them knows whether or not they own theirs. It's worth asking.
In the contract the developer might have said including the stone hedge rather than to the stone hedge. One little word that makes all the difference.
Only the developer knows if it has not been made clear on the deeds.
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Re: Cornish Hedge

Postby arborlad » Wed Apr 27, 2016 5:20 pm

Collaborate wrote:Do excuse me if I'm being a bit thick, but what we have here is apparently a developer who owns land up to the edge of a road..............



.............including the Cornish hedge, which has a significant footprint compared to a domestic fence.

I don't believe the LA ever had an interest in the hedge.

If the developer wished to retain ownership of the hedge whilst disposing of everything else, then irrespective of 'general boundary rule', 'limitation of scale', etc., then the developer would appear as an intervening landowner between the OP and the LA.

There are a few million other examples where a boundary feature on land that abuts the highway is in the ownership of that landowner.
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