Tree Preservation Orders Q & A DCP Section 4.38

Detailed here are the discretionary legislative powers enabling local authorities to make and enforce Tree Preservation Orders (TPOs). In addition the introduction of the Hedgerow Regulations 1997 has provided a further level of protection, as discussed at (4.386). The protection given to Historic Parks and Gardens is considered at (27.4). Although the reverse of tree preservation, the legislation related to the remedying of High Hedges is also noted.

Q & A    4.38/10

Following notification under Sec. 211 of the Town and Country Planning Act 1990, a local authority has confirmed that it has no objection to the proposed removal of two trees in a conservation area that are damaging a nearby drain. But it has reminded the landowner that there is an enforceable duty under Sec. 213 to plant a replacement and has asked for confirmation of the choice of species and their position within 28 days. It adds that a suitable replacement should be of "standard" size, between 2.5m and 3m in height. However, Government guidance clearly states that in such circumstances an authority cannot do this. Do you agree that the authority's approach is incorrect?.

The ODPM guide Tree Preservation Orders: A Guide to the Law and Good Practice explains that under Sec. 211 anyone proposing to cut down or carry out work on a tree in a conservation area is required to give the planning authority six weeks’ notice to enable it to consider whether the tree should be made the subject of a preservation order. The guide advises that the authority can deal with a Sec. 211 notice in one of three ways:

•    It can make a preservation order if justified in the interests of amenity.

•    It can decide not to make an order and allow the six-week period to expire, after which the proposed work may go ahead as long as it is carried out within two years from the date of the notice.

•    It can decide not to make an order and inform the applicant that the work can go ahead.

The guide explains that the authority cannot refuse or grant consent subject to terms "such as a condition requiring the planting of a replacement tree". This is because a Sec. 211 notice is not, and should not be treated as, an application for consent under a tree preservation order. The duty to plant a replacement applies only when a tree is removed in the circumstances referred to in Sec. 198(6) of the Act because these are exempt from the need to notify the authority. So the authority's approach is incorrect.

Since it is a criminal offence in most cases to cut down or prune protected trees without consent and related investigations are subject to a code of practice, where does an authority stand on requiring names and addresses to be given at the scene of a breach of control? It appears that authorities have no planning powers to require such information to verify that the furnished details are true. So should the police be called and asked to verify details and could they be used to seize relevant evidence? AD.

The government publication Tree Preservation Orders: A Guide to the Law and Good Practice offers no advice on this. It explains that under section 67(9) of the Police and Criminal Evidence Act 1984, people other than police officers responsible for investigating offences or charging offenders must have regard to the government's code of practice on detention, treatment and questioning by police officers. Although the code apparently sets out when it is necessary to caution people suspected of committing an offence and how a caution should be given, I am not familiar with its contents. I can find no express power in planning legislation that allows investigating officers to require furnished information to be verified. Neither am I aware of provisions for involving the police and their powers in such matters. Can any reader help? PM.

The interpretation of class A3, part 31, schedule 2 of the General Permitted Development Order 1995 explains that for the purposes of this class "excluded demolition" includes demolition on land subject to a planning permission for its redevelopment. However, an authority claims that I cannot exercise this right and demolish two dwellings on a site with permission to develop flats until certain pre-conditions have been discharged, even though none restricts demolition. Since there is no qualification in class A3 that the discharge of pre-conditions of an express permission is a prerequisite of exercising demolition rights under the Order, the authority's advice appears wrong. Do you agree?

Unless such rights have been expressly removed, for example by way of an Article 4 direction, I see no reason why the dwellings cannot be demolished. I can only assume that since the demolition of a building is a material operation for the purposes of the commencement of development in accordance with section 56(4) of the Town and Country Planning Act 1990, the planning authority believes that the pre-conditions override the provisions in the Order on demolition rights. However, these impose no requirement that any demolition must be carried out as an integral part of the implementation of the permission. They may therefore proceed as a separate action. Where dwellings fall within a conservation area, it would be necessary to seek conservation area consent for any demolition unless explicitly required by a condition of the permission. In my view, the planning authority's stance is incorrect.

In my experience, when authorities allow protected trees to be felled, they do not usually care whether the stump is removed afterwards. The word "felling" seems to mean only the cutting down of the tree trunk and does not include removal of the stump. So in theory, because any remaining stump and roots would still be protected, there could be situations where if a tree is felled unlawfully the authority wishes to ensure that they are not removed. What is your advice?

I cannot find any relevant precedents or discussion of this matter in the government's Tree Preservation Orders: A Guide to the Law and Good Practice or in other guidance. The term "felling" is not defined in planning legislation, although section 35 of the Forestry Act 1967 makes clear that it includes "wilfully destroying by any means". In such circumstances, the courts have held that it is necessary to rely on the term's ordinary meaning. The Concise Oxford English Dictionary supports your view that in the context of trees, the word "fell" means "to cut down". It can thus be distinguished from the term "uproot", which also appears in ministerial guidance. Your query underlines the need for precision when dealing with protected trees and, where appropriate, to make it clear whether the uprooting of a tree is expressly authorised or not. But given the root spread of most trees and the practical difficulties and consequences of uprooting them, it is unlikely that there will be many instances where this will be an issue.

If planning permission is granted to fell a protected tree and it is then felled, to misquote Monty Python "the tree is no more". So how can the stump or root stock still be protected? Surely the same applies if a tree is felled without consent. The offence is felling the tree. How will a magistrate respond if someone is then prosecuted for digging up the stump? Can that be damage to a tree that has already been "wilfully destroyed"?

These are reasonable points. Trees are protected for their amenity value. Once they have been felled their amenity value will be lost, together with both the purpose behind the preservation Order and its effect. I cannot foresee many instances where it would be desirable to expressly retain a tree stump, unless the tree had some special historical significance and retention of its remains would serve as a reminder.

Stumps of many tree species have the capacity to regenerate and form new canopies so replacing the lost amenity. Paragraph 3.3.2 of the government’s Tree Preservation Orders: A Guide to the Law and Good Practice 2000 points out that amenity potential is a consideration when assessing tree preservation Orders. The principle that tree species will regenerate from cut stumps has underpinned British silviculture for most of the last 2000 years and is true of most common broadleaved trees such as Ash and Oak, and even a few conifers. EH.

Response

After the tree has been felled, its stump is still alive and consequently continues to be subject to a tree preservation Order. In my experience, many preservation Orders are made to prevent development. They will remain in force and are therefore effectively able to prevent a development unless the regenerative argument can be successfully used in a planning appeal. It is too easy to make the mistake of thinking that preservation Orders are made because of the amenity value of a tree, when too often they are not. JD.

We are considering an application to carry out maintenance works to trees in woodland protected by a tree preservation order (TPO) and are basing our assessment on the visual amenity and the health and safety of the trees. However, local residents say the woodland is of considerable biodiversity interest and provides feeding grounds and roosts for bats. They claim that the application must be determined having regard to the duty under section 40 of the Natural Environment and Rural Communities Act 2006 to take biodiversity into account. Their view is that if there is an adverse affect on biodiversity, we should refuse permission. Our view is that the criteria for determining applications to trees covered by TPOs are well established and that there are controls over protected species in other legislation. Which view do you think is correct? BC.

Section 40 of the act states: "Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity." This duty is widely drawn and therefore the impact on bats should be taken into account in assessing this application. JH.

Section 6.14 of the "Tree Preservation Orders: A Guide to the Law and Good Practice" states consent is not required for cutting down or carrying out work on trees if required to implement a full planning permission.  Section 6.15 then says the exemption does not extend to outline planning permissions which is based on the Model Order in the Town and Country Planning (Trees) Regulations1999.  We have a site where outline permission and subsequent reserved matters approval have been granted.  Our legal team advises that, regardless of this, separate consent for works to the protected trees is required as the permission still relates to an outline planning permission.  Whilst this appears anomalous, having read the guidance, it does appear to be the position.  Do you agree? JM.

The wording of the Model Order permits works to trees, "to implement a planning permission (other than an outline planning permission)". In that context I would presume the phrase "an outline permission" means an outline where reserved matters have not subsequently been approved. If this interpretation is not applied, the outcome, as you point out, would be somewhat anomalous and I do not believe this would have been Parliament’s intention. JH.


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