HEDGES ADJACENT TO A HIGHWAY OR PUBLIC RIGHT OF WAY

HEDGES ADJACENT TO A HIGHWAY OR PUBLIC RIGHT OF WAY

Postby JOHN IVES » Mon Aug 23, 2010 5:43 pm

I am trying to establish whetehr any legislation exists which restricts the height of hedges as above.

A friend tells me that Planning permission is required for any fence or wall over 6 feet in height but no permission is required for hedges

Is he right ?
Last edited by JOHN IVES on Mon Aug 23, 2010 5:55 pm, edited 1 time in total.
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Postby Treeman » Mon Aug 23, 2010 5:52 pm

Yes
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Postby JOHN IVES » Mon Aug 23, 2010 6:01 pm

As a part of a diversion application for a public footpath a landowner seeks to plant a hedge between his house and the new route which will block off the view of his property.

This will effectively leave an enclosed tunnel. Now if there is nothing illegal about this then I suppose that the only objection can be as it relates to the effect on public enjoyment (loss of view).

Is there any precedent to entering into an agreement with the landowner which restricts the height ?
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Postby ukmicky » Mon Aug 23, 2010 8:26 pm

A covenant (personal contract )can restrict the height of the hedge but future owners will not be bound by it. I however cant see why he would want to enter into one when he does not need to.

If the hedge is on his land he dosent even need PP to plant it.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Postby catapult1 » Wed Aug 25, 2010 10:35 am

JOHN IVES wrote:landowner seeks to plant a hedge between his house and the new route which will block off the view of his property.

This will effectively leave an enclosed tunnel. Now if there is nothing illegal about this then I suppose that the only objection can be as it relates to the effect on public enjoyment (loss of view).


What?

Are you saying the public has a right to view his property? If so how is this permissable? and if it is then surely no one would be allowed hedges or fences ect!
My answers are not of a legal nature, only what I consider to be common sense.
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Postby JOHN IVES » Wed Aug 25, 2010 10:51 am

No what I am saying is that any existing public right of way is agreed in law and remains in perpetuity unless legally extinguished. Also no legal right exists for any landowner to apply to divert a public right of way.

The process which exists to change any PROW is through an optional power of Highway Authority's viz HA 1980 S119. Any application received through this route (if accepted by the HA) is then subject to certain legal tests and anyone can object on that basis.

One must remember that any landowner is not exrecising any right whatsover he is in fact asking the public to give up their rights. My question is if all of a sudden a pleasant walk through a farmyard setting is replaced by a walk through a tunnel with 15 foot trees either side then the public can reasonably say that their views are being worsened and object accordingly.
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Postby mr sheen » Wed Aug 25, 2010 11:05 am

You can object but whether the basis of your objection is reasonable will be taken into consideration alongside the reasons for the request for diversion. In some cases a request for diversion is made on the basis of public safety or to protect the PF where it's current position relies on a decaying bridge etc in which case it is often in the interest of the LA to divert.

What constitues a 'pleasant' environment for a walk is very subjective and some people may prefer a walk through a tree-lined 'tunnel' and hence consider this extremely pleasant and an improvement.
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Postby JOHN IVES » Wed Aug 25, 2010 11:14 am

Having said that experience dicates that in order to discourage ongoing usage landowners simply let a hedge grow unmaintained and this then encroaches into the legal width.

Having said that each case must be dealt with on its merits
Last edited by JOHN IVES on Thu Aug 26, 2010 9:47 am, edited 1 time in total.
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Postby mr sheen » Wed Aug 25, 2010 11:26 am

Where a hedge interferes with the passing and repassing along a PF, one can report it to LA who can require landowner to cut it back or sometimes they cut it back themselves. Hedges do not close PF's.
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Postby JOHN IVES » Wed Aug 25, 2010 1:38 pm

I do not know what your experiences are but HAs have powers and duties but often have neither the staff nor the political will to do either.

So it all comes back to if the landowner is seeking the public's blessing in diverting their path then they should have a say in the alternative being offered.
I suspect however with all the cuts about to descend on HAs that the optional powers to divert might become harder and certainly more expensive to achieve.
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Postby mr sheen » Wed Aug 25, 2010 2:21 pm

I don't understand the point you are trying to make nor what you are trying to achieve from this discussion. You seem to want to stop the diversion of a PF but your argument revolves around you wanting to retain a view of the landowners property, not wanting to walk between trees and hedges and expecting the LA to gain your 'blessing' for any proposed change.

PROW arose due to the need to get from one place to another. In general LA's now try to work in partnership with landowners to ensure that the public can continue to get from A to B with the support as oppose to antagonism of the landowners. It has been proven that trying to force people to do things is often counterproductive (and expensive) and a partnership approach with give-and-take based on what is reasonable gets better cost-effective results and gets people 'on-board' with your cause.
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Postby JOHN IVES » Wed Aug 25, 2010 3:13 pm

I could not agree with you more in that in an ideal world if you had reasonable landowners, reasonable campaigners and a Highway Authority who sought to broker an acceptable compromise , then everyone would be happy. Unfortunately in many areas life is not like that.
The initial acceptance procedure by the HA usually goes through with minimal examination to the extent that we are now seemingly getting "diversion on demand" which cannot be the intention of the legislation.
Once an order is made it is very difficult to get it not confirmed. The point is that unless "the public" make Councillors aware of what their views are then they are guided by their officers who by and large have little or no interest in the public interest.
It should remembered that there is no right to privacy as it relates to the proximity to PROWs and I believe that to create enclosed footpaths where one previously had uninterupted views is the thin end of the wedge. In this case it is the ability to plant a hedge with no height limit which causes the problem
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Postby mr sheen » Wed Aug 25, 2010 4:51 pm

Yes - no right to privacy for a PROW; no height limit for a hedge that does not come within the remit of the High Hedge Legislation and no right to a view.

Also, the only right for a member of the public on a PROW is to pass and repass.
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Postby JOHN IVES » Wed Aug 25, 2010 5:00 pm

Agreed no right to a view but there again the commonly used criteria for measuring public enjoyment includes

Criterion 4 - Landscape Character. The proposed new route should not result in lower quality or diversity of views for the path user

The whole point is that possession in nine tenths of the law. If you have a legally agreed view why should you have to give it up because the landowner wants to change an agreemnt made previously.

I admit however that this is only one small aspect of the big picture.
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Postby JOHN IVES » Wed Aug 25, 2010 8:57 pm

Incidentally the public have the right to

Pass and re-pass on a Public Right of Way;
Stop to look at the view, take a photograph, sit down to rest and so on;
Take a pram, pushchair, wheelchair, but expect to encounter stiles on some footpaths and bridleways;
Take a dog, but always under close control;
Remove an illegal obstacle sufficiently to get past.

And dont forget the HA has duty to assert and protect the rights of the public to the use and enjoyment of any highway
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