Development Management Answers: Is refusal over tree loss reasonable?

Q A developer has applied for planning permission for ten houses. Several trees on the site offer amenity value to the area but none is protected or in a conservation area. The council has refused permission as the development would result in removal of some of these trees. Is this unreasonable, given that the developer could remove the trees without consent at any time? JM

Yes, it is unreasonable. I would submit a landscaping scheme now if the application is still live, or resubmit it with a landscaping scheme if it has been withdrawn or refused. Another approach would be to fell the trees and then resubmit. This might be the easier option, as the planning authority may be considering serving a preservation order on the trees now that they are "under threat". If a preservation order is served, the whole process is going to be more difficult. Tom Tanner

A Whether the council has been unreasonable or not is not the issue. It should have preserved the trees when it refused the planning application. Otherwise, it leaves itself vulnerable as the trees could be felled at any time, although I would not wish to encourage pre-emptive felling. Having said that, an appeal for three new houses in Norfolk (DCS Number 400-019-064) was dismissed last year because of the impact on unprotected trees, although in that instance there was also another objection to the proposal. It is therefore possible that the authority might get away without preserving the trees, but I would not recommend this. Interestingly and illogically, section 197 of the Town and Country Planning Act 1990 imposes a duty on councils when granting permission to make adequate provision, by imposing conditions, for the preservation and planting of trees and to make tree preservation orders in connection with the permission if necessary. There is, however, no provision requiring a preservation order if an application is refused. This scenario suggests that councils ought sometimes to consider making a preservation order when refusing an application, but there is no stipulation in the legislation requiring this. John Harrison

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