Tree replacement notice found invalid

A council in Scotland failed in its attempt to enforce replacement of 207 trees alleged to have been felled in the wooded grounds of listed house in a city conservation area without prior notification.

The two hectare grounds lay in a conservation area characterised by large detached villas set in spacious landscaped garden plots with generous tree planting. The house had recently been deconverted back to a single residence and associated works within the grounds had been approved and were under way.

The appellant property developer company denied being the owner at the time the enforcement notice was served and unable to carry out the works required by the notice. The council stated that it had carried out an online title search but the reporter accepted the appellant’s response that the online records were not up to date due to a delay while titles were amalgamated. As the appellant had legally divested themselves of ownership of the site almost a year prior, the reporter held the notice had not been competently served.

In a second appeal, the appellant also challenged the validity of the notice as being served out of time and lacking specification of the trees removed. Taking into account the next available planting season after the felling had come to the attention of the council, the reporter accepted that the notice had been validly served within the two-year period following a failure to carry out replanting as required by section 174 of the Town and Country Planning (Scotland) Act 1997, and this had started the clock ticking rather than the felling. Despite this the reporter found the lack of specification of the precise numbers, location and species trees alleged to have been removed, in the context of a complex planning history and several changes of site ownership which made it impossible for the appellant to understand which trees had been felled without authorisation, rendered the notice invalid and he allowed the appeal, quashing the enforcement notice.

Reporter: Malcolm Mahony; Written representations

and 400-019-973

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