Tree preservation Q & A DCP Section 29.1

This section is primarily concerned with the practice issues raised by determination of applications for consent to remove or lop/top trees which are the subject of Tree Preservation Orders (TPOs). Practice issues are also included here where proposals for development arise which may affect the viability of protected or other trees. The removal of hedges under the Hedgerows Regulations 1997 is detailed at (29.2).

Q & A    29.1/10

A tree preservation order (TPO) has been placed on a group of rhododendrons in the large garden of my client's house, which lies in a semi-rural area. I do not consider that these shrubs are "trees", although they have grown to a substantial height, and argue that they cannot be the subject of a TPO. However, the local authority insists otherwise. Can it be correct?

The Government publication Tree Preservation Orders: A Guide to the Law and Good Practice explains that a TPO protects "trees and woodlands". It adds that the term "tree" is not defined in the Town and Country Planning Act 1990 and explains that this does not limit the application of TPOs to trees of a minimum size. The guide goes on to say that for the purposes of the legislation, the High Court has held that a tree is anything that one would ordinarily call a tree. This is a reference to the ruling in Bullock v Secretary of State for the Environment [1980], where the judge opined that scrub, bushes and shrubs would not fall within the meaning of the term. The guide notes that the dictionary defines a tree as "a perennial plant with a self-supporting woody main stem, usually developing woody branches at some distance from the ground and growing to a considerable height and size". While most varieties of rhododendron are generally considered to be shrubs, some are evidently small trees. It is therefore possible that a TPO could be placed on a group of such trees, but only where this would be expedient in the interests of public amenity. Chapter 3 of the guide sets out the circumstances where this would be the case.

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