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Lord Marlesford: My Lords, I apologise. I now refer to Amendments Nos. 239B to 239E. Amendment No. 239B of my noble friend Lord Stanley is extremely sensible because there should be a proper right of appeal for anyone who wishes to uproot hedges. As regards Amendment No. 239C, I do not believe that the idea of planting a hedgerow is enough to justify taking up a hedgerow. What we are really concerned about is the quality of the hedgerows and often their antiquity. Therefore, planting a hedgerow is not a substitute or an excuse for uprooting. That is why I am not very happy about Amendment No. 239C.

On Amendment No. 239D, I should have thought that the decision as to the importance of a hedgerow would be taken at the appeal stage, which is provided for in Amendment No. 239B. In other words, I regard Amendment No. 239D as an alternative to, and less good than, Amendment No. 239B because, if there is to be an appeal against the appropriate Minister's refusal of consent, it would be at that stage that any considerations such as those referred to in Amendment No. 239D would be appropriate.

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Amendment No. 239E, which stands in the name of the noble Earl, Lord Lytton, refers to the provision of a "management agreement". I am sure that we all recognise the need to provide financial support where hedges have to be maintained in the public interest, but I do not think that that should be achieved by a linkage under the Bill. I would expect that hedges which are regarded as sufficiently important to be subject to an order preventing their removal would also be seen as sufficiently important to receive some financial assistance under whatever other schemes already exist. We discussed that in Committee and it seems to me to be a much more sensible approach than direct linkage.

Perhaps I may use the analogy of listed buildings. A decision to list a building does not automatically mean that one gets a management grant or any other sort of grant in connection with it. One may be eligible for such a grant, but that is a separate point that is judged according to separate criteria. That is why I would not be happy if any direct linkage were provided under the Bill. Having said that, I beg to move Amendment No. 234A.

8.15 p.m.

The Earl of Lytton: My Lords, I rise to speak to Amendments Nos. 239B, 239C, 239D and 240A. I should like to speak to Amendment No. 239E at its point in the Marshalled List so I shall not be speaking to that amendment with this group of amendments, but after the group which starts with Amendment No. 239, which is where I believe that Amendment No. 239E logically stands. Having disaggregated Amendment No. 239E, I shall cover the other amendments in the order in which they appear in the Marshalled List.

The purpose of Amendment No. 239B is to provide for a right of appeal. I hope that that is clear. The rules of natural justice apply here and I feel strongly that there should be adequate safeguards for those who are affected by hedgerow protection orders. Many designations of one sort or another are capable of challenge at some stage. The designation of sites of special scientific interest may be challenged when one wishes to carry out certain types of work. There are similar provisions for listed building consents and for tree preservation orders. With respect to the noble Lord, Lord Marlesford, I believe that he thought that this was of necessity a right of appeal against a designation. I am seeking merely to ensure that there is some form of right of appeal in the regulations. It matters less to me at what point it appears than that it is there somewhere. I hope that that puts the noble Lord's mind at rest.

As drafted, Clause 79 provides no right of appeal, except possibly the normal default line through the heavy-handed and expensive route of judicial review which is available for many instances where there is thought to be an over-zealous use of power.

I have received today a copy of the project description for the identification of important hedgerows. It is obviously framed widely and does not of itself identify what might be described as "most important hedgerows"—nor does it set out how they might be identified. I hope that that is merely to leave the way clear for a free hand to be given to the contractor to

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investigate that side of the issue. I hope that the Minister can reassure me on that; otherwise, on the face of it, there appears to be a shift of emphasis. I hope that that is not intended. In my view, if there is such a shift of emphasis, a right of appeal is indispensable.

The purpose of Amendment No. 239C is to ensure that in considering whether to exercise its powers, an authority should have regard to the manner in which hedgerow management and restoration are already occurring on the holding in question. I believe that that would have the following effects. First, it would go some way towards procuring good conduct because land managers would realise that future treatment of any application that they might make to remove an important hedgerow might well depend on their past conduct. I see nothing wrong with that.

Secondly, it would ensure that an authority could not unreasonably penalise someone who was making a genuine effort on their holding and take a narrow view on a particular hedgerow without considering other factors. In many holdings, land management (from the land manager's standpoint) is very much a function that is integrated with all his other functions. The degree to which he is prepared to devote time and resources to good hedgerow management is derived directly from the nature of that basket of activities, which often includes diversification. I would hate to think that hedgerow protection would become another issue that stands in the way of an otherwise good scheme which, taken in the round, would be a net contributor to the environmental benefits that we all want to see.

I hope that what I have said answers some of the points that were raised by the noble Lord, Lord Marlesford. I do not think that it is a question simply of uprooting and substitution. That would be too simplistic a model. This is an important issue that needs to be taken in the round. That is the thought-process that I should like to encourage.

Amendment No. 239D would ensure that an authority would have to consider the effects on the business of the landowner or land manager of any exercise of its powers. That follows on from what I have just said. Clearly, it would be manifest bad practice if an authority was minded to deny the facility to do to a hedgerow something that was necessary regardless of its impact on the agricultural or business interest. To do that would be to put nature conservation in direct confrontation with the integrated approach to management and maintenance which land managers try to adopt. That would send a negative message, and must be avoided. My amendment would help to avoid what might turn into an entirely counterproductive response by land managers. It would enable the economic interest (which ultimately provides the resources for hedgerow maintenance) to be demonstrated as relevant. I take the point that was made by the noble Lord, Lord Marlesford, that it may be an appeal stage procedure. However, I feel that it should be built into the whole process and not necessarily attached to a specific element of it.

Amendment No. 240A probes the intended meaning of the word "protection". The amendment seeks to identify the nature of the owner's responsibility. I have

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assumed that the intention behind the whole concept of hedgerow protection is to protect from wilful and unlawful uprooting or destruction. I hope that I have got that right. However, I should like to be clear on that point and should be grateful if the Minister could indicate what is in his mind on that issue.

I want to ensure normal management by cutting and laying. That is something which has to be done and which may produce quite substantial changes in appearance, but it is part of an essential management process. I am hoping that that will not be circumscribed, and that is another aspect on which I should like to have some reassurance.

Those matters go to the heart of my wish to ensure that hedgerow protection orders are not seen as negative obstructions imposed by faceless bureaucrats but are measures that are relevant to land management, as well as other factors. Therefore, I commend the three amendments to the House.

Lord Moran: My Lords, I should like to support Amendment No. 234A. It is very important that we make reasonably rapid progress with this problem. It has been five years since the commitment to bring in legislation about hedgerows was made in 1990 in the White Paper on the Environment. The amendment is entirely right.

Amendment No. 239B concerning the right of appeal is fair and it is one that I support. However, I have some doubts about the other amendments. Amendment No. 239C requires an authority administering the regulations to take into account any planting and restoration of other hedgerows. That amendment comes up against the difficulty, as the Government acknowledged at Committee stage, that a new hedge is not of the same value as an important old hedge and, therefore, it is not compensated for. The real way to secure fairness is to have increased resources for management as is the case in environmentally sensitive areas.

Amendment No. 239D concerns the impact on business. It is right that the question of the economic effects of any decision to prevent the removal of a hedgerow should be taken into account. However, as the noble Lord, Lord Marlesford, said, it should be done on appeal. Again the answer is to provide proper resources for management and not to reduce statutory protection.

In regard to Amendment No. 240A, I should be interested to know what the Government think about defining protection. The wording in the amendment excludes damage which could significantly impair the quality of imported hedgerows. Therefore that amendment appears to be defective.


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