Is a hedge an enclosure?

Is a hedge an enclosure?

Postby Pimpernell » Fri Apr 13, 2012 4:37 pm

Hello. Please confirm if the folowing clause would include a low hedge: "no gates,walls, fence or other means of enclosure shall be erected or constructed". Many thanks, P
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Re: Is a hedge an enclosure?

Postby despair » Fri Apr 13, 2012 5:52 pm

i would think a low hedge also equals an enclosure
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Re: Is a hedge an enclosure?

Postby Geometer » Fri Apr 13, 2012 11:34 pm

I think more information is required. In what context does this clause occur, and what exactly do you mean by "low hedge"? The phrase is very open to interpretation; it could mean anything from a lavender hedge, to a clipped Box hedge around a Tudor-style knot garden, to an unkempt Hawthorn hedge you can see over.

despair wrote:i would think a low hedge also equals an enclosure

Forgive my pedantry, despair, but a hedge is not an enclosure, it is a means of enclosure; and an area of land surrounded by a hedge is not necessarily "enclosed" if it's low enough to step over.
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Re: Is a hedge an enclosure?

Postby Roblewis » Fri Apr 13, 2012 11:48 pm

In its original meaning enclosures had to be fenced or walled and with closed secured gates to exclude non owners. Strictly also hedges are grown not constructed or erected so I would thus argue in strict legal terms a hedge cannot form an enclosure but a wall, railings or fence can provided the access is normally secured.
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Re: Is a hedge an enclosure?

Postby despair » Sat Apr 14, 2012 7:54 am

Obviously much hinges on the exact reasons for the OPs question as to the context of enclosure in his case
but Halesbury's Law of England said

"a hedge is but another form of fence "
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Re: Is a hedge an enclosure?

Postby Roblewis » Sat Apr 14, 2012 9:32 pm

Despair

But the covenant talks of erected or constructed - It actually seems likely that someone was too clever by half when it was drawn up and they have ended up excluding any planting arrangement
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Re: Is a hedge an enclosure?

Postby Conveyancer » Tue Apr 17, 2012 10:11 am

Roblewis wrote:But the covenant talks of erected or constructed - It actually seems likely that someone was too clever by half when it was drawn up and they have ended up excluding any planting arrangement


Certainly an argument. The argument against it is that the intention is found in the words: no gates,walls, fence or other means of enclosure and the question is whether erected or constructed cuts them down simply because one does not generally talk about erecting or constructing a hedge.

Is the wording quoted preceded or followed by other wording to the effect that the land is to be left open plan?
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Re: Is a hedge an enclosure?

Postby Roblewis » Wed Apr 18, 2012 12:49 am

The rules on interpretation rquire the plain english meaning to be followed regardless of the intention of the drafter. The clause erected or constructed is certainly an added description of fences etc and one has to read the words in their entirety. It is what is written that is the answer not the hidden mind of the writer. Yes a statement re open plan would negate this approach though. But how often are such covenants ignored - Se the Highest Hedge in England posting. Only the original builder has the power to act in most open plan covenants I have seen. The covenant is with them not the othr owners. Builders are not bothered once they have sold the estate. Why waste money enforcing something for no tangible benefit to the company - waste of shareholders money!!!
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Re: Is a hedge an enclosure?

Postby Conveyancer » Wed Apr 18, 2012 10:34 am

The problem here is though that the words are not clear as evidenced by the fact that we are having to ask what they mean without any possible interpretation advanced straining the meaning of the words.
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Re: Is a hedge an enclosure?

Postby trumpet » Wed Apr 18, 2012 6:35 pm

This covenant sounds the same as ours. Intended to ensure an open plan layout. That is, no fences , hedges, walls etc in front of the build line.
Ours reads " not to erect or plant any fence,wall or hedge"
The wording here is different and it looks to me that they have tried to cover a possible loophole where someone could erect some kind barrier not covered by "fence or wall".
A hedge is clearly a means of enclosure.
Surely they have covered it by banning any means of enclosure.
In our case they banned hedges but this could leave an opening to plant any type of high vegetation planted in a row which may not be described as a hedge. eg Large perennials etc.

The way things go today I could see someone going to the European court of human rights to grow a hedge to a height which pleases them. Claiming their human rights are being taken away for not allowing them to grow the hedge of their choice.
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Re: Is a hedge an enclosure?

Postby Roblewis » Wed Apr 18, 2012 11:24 pm

Trumpet

Your deeds are explicit about hedges and this one is not I am afraid.The types of things prevented are those that are erected or constructed and without clear intention for open plan expressed the question of a hedge is open. Not that I think many of these covenants would be enforced by the builder in any case. I would make a start with a line of shrubs and take it from there.
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Re: Is a hedge an enclosure?

Postby Conveyancer » Thu Apr 19, 2012 12:58 pm

Whether the obligation is enforceable and if so by whom is not the question we are asked to answer; it is whether hedges are covered by:

"no gates,walls, fence or other means of enclosure shall be erected or constructed"

Let's look at it from different angles.

What is the first impression? It is that there is an intention to keep the boundary free of boundary features. If the officious bystander that lawyers like to conjure up had asked the draftsman when he was drafting: "So you're allowing fences then?" what would the draftsman have answered? If we think he would have answered testily: "Of course I'm not!" then we are a long way to getting the answer. Now of course, as Roblewis says, the starting point is that we have to take the words as we find them.

Let's suppose we had a clause which simply said:

"no hedge shall be erected or constructed"

It may not read quite right, but I think it would be difficult to argue that the clause is void because no meaning can be extracted. The meaning is surely clear.

We next suppose we have a clause which reads:

"no gates, walls, fence or hedge shall be erected or constructed"

It cannot be the case that the additional words change the position.

Finally, we suppose what is the case:

"no gates,walls, fence or other means of enclosure shall be erected or constructed"

"Other means of enclosure" must include a hedge. Accordingly the clause is equivalent to "no gates, walls, fence or hedge shall be erected or constructed" and no hedge may set on the boundary.

Next, we can consider whether hedges, not being specifically mentioned, ought to be excluded on the grounds that they cannot be erected. That involves considering the meaning of "erect". I think we are entitled to consult a dictionary and look at all meanings so long as they are not archaic or technical. Googling, I found one site which gives the following non-archaic, non-technical definitions:

To construct by assembling
To raise to a rigid or upright condition.
To fix in an upright position.
To set up; establish


Whilst we may have difficulty with the first three definitions, we surely do not with the last. A hedge can be erected.

We do not need to consider the meaning of "construct" because it is preceded by "or".
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Re: Is a hedge an enclosure?

Postby Roblewis » Thu Apr 19, 2012 6:46 pm

No wonder barristers charge a fortune :D :D :D :D It would have been much more precise to simply say the estate is open plan and no boundary features are permitted. All ambiguities would be avoided. Still as I said - ignore them as they are difficult to enforce by residents
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Re: Is a hedge an enclosure?

Postby TO » Thu Apr 19, 2012 8:14 pm

Hi

Roblewis wrote:No wonder barristers charge a fortune :D :D :D :D It would have been much more precise to simply say the estate is open plan and no boundary features are permitted. All ambiguities would be avoided. Still as I said - ignore them as they are difficult to enforce by residents
Define boundary feature. The grass/ paving/ soil, air, in fact anything around the boundary would be a boundary feature. Even a complete vacuum would be a feature. Unless you define which boundary features you want to exclude either by naming them explicitly, hedge, fence, etc or setting out what you want to achieve eg the gardens shall not be enclosed and will remain open plan, you will be just making more money for the lawyers.

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Re: Is a hedge an enclosure?

Postby Roblewis » Thu Apr 19, 2012 10:10 pm

Precisely barristers + fortune. Should have included 20 or 30 caveats methinks :D :D

Shows what a minefield these open plan estates are
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