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THE EFFECTIVENESS OF TREE PRESERVATION ORDERS IN SCOTLAND

EXECUTIVE SUMMARY

INTRODUCTION

1. This report was commissioned to examine the effectiveness of the current Tree Preservation Order (TPO) system in Scotland and to recommend steps that could be taken to improve the existing procedural, technical and legal framework. A priority was to be accorded to any recommendations that emerged from the 6 month review.

2. The method of study included a series of interviews with 8 councils (4 urban and 4 rural) across Scotland; 6 agencies and official bodies; 6 consultants; one legal firm; 4 private companies; and 9 individuals. In addition, 3 written submissions were received. Details of these points of contact are set out in appendix 1 at the rear of this report. Various site inspections were undertaken of trees with a high amenity value in areas covered by TPOs, in conservation areas and in other urban/rural situations.

THE EFFECTIVENESS OF TPOs

3. As there has been no previous study of TPOs across Scotland, there is no base point from which to measure performance in this sector. My investigations have shown that formal measures to protect trees with a high amenity value started well before the Second World War (some 40 Orders exist for Glasgow in the era prior to the 1947 Act). Since that date, the number of TPOs has risen steadily in a series of independent surges in different parts of Scotland. In all instances, the use of TPO powers has coincided with a rise in development pressure within and around urban areas. In Edinburgh, this phase peaked in the 1970's when up to 30 TPOs per year were initiated. Currently, Aberdeen, Dundee and the Borders are the centres of high activity.

4. The issue of TPOs has to be set in the wider context of a growing public interest in the environment. This trend is reflected most directly by the steady increase in the number of enquiries relating to protected trees. In Edinburgh for example, the arboricultural officer receives 3,200 written and phone enquiries each year (a figure that compares with the 5,000 planning applications per year). In parallel with the expansion of TPO related work, there is a steady growth across Scotland in the number of amenity societies; in the number of nurseries and other commercial companies promoting tree planting; and in the concern for trees among the development orientated professions (planners, architects, landscape architects, surveyors and engineers). Whilst there has been no objective analysis of these trends, journeys through and around Scottish towns indicate that the extent of the tree cover has been rising steadily in recent decades despite parallel trends towards higher densities.

5. Whilst the overall position for trees outlined above is positive, there are a number of negative features. First, at a local scale, the on-going management of many TPO sites has been either non-existent or to a very low standard. This situation arises through a combination of a lack of knowledge, finance and commitment to the maintenance of protected trees. In addition, many buildings, under ground utilities and parking areas have encroached so close to TPO trees that long term damage to root systems and branches has occurred. Similarly, in many cases, replacement trees have not been planted to preserve the original standard of amenity of the protected trees. Overall, these negative elements have contributed to such a loss of amenity in a significant minority of TPOs (particularly those approved pre 1970) that either amendment or revocation of the original Order is needed.

6. With regard to procedures and technical standards, there is a distinct lack of up-to-date government advice on TPOs. This situation contrasts markedly with England where 'Tree Preservation Orders: A Guide to the Law and Good Practice', produced by DETR in 2000, provides a very effective coverage of the key issues. This document, also referred to as the 'Blue Book', updates a previous publication produced in 1988, and is in constant use in Scottish councils despite its provisions (notably the legal issues) not being wholly relevant to the situation north of the Border.

7. The lack of an accurate council database means that there is no complete, consistent picture of the extent and the nature of TPOs across Scotland. The level of inaccuracy is such that all councils need to update their records with a view to either amending or revoking a substantial number of the earlier TPOs.

8. Other problems identified with the existing TPO framework include an uneven pattern in the way that the provisions of the 1997 Act and the linked regulations are applied by different councils; the lack of a viable, objective monitoring system that would permit systematic updating to occur; the limited use of GIS technology to assist in creating a modern procedural and legal framework for TPOs; an uneven and very limited record of local authorities pursuing the prosecution of alleged breaches of the provisions of TPOs; and an uneven record among councils in producing pamphlets to guide residents in the procedural, technical and legal provisions that apply in their area.

9. On balance, however, there is no doubt that the positive factors that apply to the protection of trees outweigh the negative influences outlined above. In particular, the total support from the parties consulted for the principles embodied in the existing TPO framework means that no radical re-working of the system in the immediate future is required. There are however a limited number of initiatives that need to be taken in the near future in order to fine tune the current framework. On this basis, if the high priorities that are set out under the main headings below (the 3 proposed initiatives for the Scottish Executive and the 4 proposed for the councils in particular) are implemented, these 7 measures would address all of the immediate concerns identified during this study. As both the 4 secondary priorities identified for the Executive and 3 for the councils would impart a long term balance to the system for the protection of trees, they should be considered as an integral part of the forward programmes for these organisations over the next 3 to 5 years.

10. The following 3 high priority and 4 secondary priority tasks are recommended to Scottish Ministers as being necessary to fine tune the current TPO system.

High Priority

11. Production of a Scottish version of 'Tree Preservation Orders: A Guide to the Law and Good Practice'. This task (which would involve following the same chapter headings, model forms and code of practice) would be most important initiative that can be undertaken currently by the Executive. The end product would address the great majority of the concerns raised by parties interviewed during this study.

12. Commission a study of the application of GIS technology to the recording and the monitoring of all data and maps relevant to TPOs in one urban council (Dundee or Aberdeen) and one rural council (Scottish Borders Council). The study would develop the initial experiments in this sector to the point where all relevant TPO data and maps could be found within one framework. The end product (which would speed up and improve all work relating to protected trees) could be applied directly to many other local authority responsibilities.

13. Provide a combined chairman/secretary for STOG (the Scottish Tree Officers Group) for a 2 year period so that this organisation can be resurrected from its current moribund state. This important initiative would require an initial, part time commitment by one member of the Executive's staff to act as the chairman/secretary for the 3 to 4 meetings held per year in various venues across Scotland.

Secondary Priorities

14. Prepare a planning advice note (PAN) on best practice in relation to TPOs within the planning system. The PAN would offer guidance on the most effective procedural, legal and operational methods for handling protected trees in both TPO sites and in conservation areas.

15. Run a series of Scottish Executive sponsored seminars in Victoria Quay in order to publicise the evolving framework that applies to protected trees. An initial target of 2 or 3 meetings run by a small team within the Executive would be realistic.

16. Prepare for the legislative changes that might be introduced in relation to protected trees in an update of the 1997 Planning Acts. Currently, it is recommended that issues that should be monitored are the concept of introducing a "stop TPO"; the definition of a tree, together with the technical terms of lopping, topping, uprooting, dead, dying, dangerous, destroyed, wilful damage and wilful destruction of trees; the simplification of the language in the Act; the need for councils to monitor TPOs on a regular basis (a consequence of the July 2002 Birmingham court decision); the introduction of a management plan for each new TPO; bringing historic trees within the scope of legislation; redefining the hierarchy of TPOs so that the area category is omitted; and clarifying the position of Crown land.

17. Ensure that the protection of trees (and TPOs in particular) is given due importance in the on-going workload of government. This recommendation reflects the growing interest in all sections of society in environmental issues. A specific initiative might be for Ministers to revive the traditional practice of planting a specimen tree when they visit a project (a positive image that always attracts media attention if attached to a popular slogan such as "plant a tree in 2003"). This approach would relate well to the many other environmental initiatives that the government is undertaking as part of the emerging agenda and priorities for the imminent Earth Summit in Johannesburg.

18. It is recommended that local authorities act upon the 4 high priority tasks and the 3 secondary priorities summarised below.

High Priority

19. Ensure that all TPOs in each council are up-to-date, statistically accurate and legally sound. Based upon the current position at the 8 local authorities visited, about half of all TPOs need to be re-surveyed; a decision made upon the revocation or the amendment of these Orders; and the necessary actions taken to implement a programme that would update all TPOs to the required standard.

20. Create a management framework and a staffing complement in each council that would allow officials to administer TPOs in the most effective, timeous manner. As each council's needs vary according to local circumstances, there can be no uniform staffing framework across Scotland.

21 Include a sound policy framework to protect trees in all local plans. Currently, the lack of firm guidance from government means that there is a wide range of approaches in local plans. The proposed "Blue Book" and PAN should address this issue in full. In addition, at a local scale, each council should be encouraged to produce practical, informal advice on all tree related operations in illustrated pamphlets. These documents should reflect the particular circumstances in each part of Scotland.

22 Allow council staff to attend STOG meetings so that they are fully aware of best practice in relation to protected trees in both TPOs and in conservation areas. This measure would ensure that local authority officials apply the principles and the detail relating to protected trees in a consistent, professional and cost effective manner.

Secondary Priorities

23. Ensure that future TPOs contain guidance on the long term monitoring and the maintenance of the protected trees identified in the Order. The options that need to be evaluated include negotiating section 75 agreements; imposing conditions on any planning consent that may be granted as part of a TPO; establishing residents associations; involving the Greenbelt Partnership where appropriate; and creating the framework whereby an informal agreement with owners can be negotiated.

24. The creation of a small team within each council that can respond rapidly (a one to two day threshold should be the target) to a perceived danger to trees with a high amenity value. This rapid response approach could be addressed in detail via both the proposed Scottish "Blue Book" and via discussion at STOG.

25. The introduction of voluntary Tree Wardens to assist officials in managing and improving the tree cover (including protected trees) within each local authority. A measure that would harness the immense public enthusiasm for environmental issues across Scotland (and thereby contribute significantly to "e-government" at a local scale).

26. It is recommended that the owners of sites containing protected trees should be encouraged (via government and local authority advice and guidance) to adopt the following 3 on-going priorities.

On-going priorities

27. Assisting councils in both updating the data and the maps that relate to existing TPOs and in preparing voluntary management plans for TPOs.

28. Supporting a general movement towards open government whereby all data related to protected trees would be readily available to the public via the Internet. The TPO system would provide a useful test bed for implementing this concept.

29. Acting timeously and effectively in relation to the maintenance and the replanting of protected trees.

30. The key measures are the 3 items summarised in paragraphs 11, 12 and 13 above, namely, the production of a Scottish version of DETR's "Blue Book"; the initiation of research into a GIS based information system for TPOs; and the revitalisation of the STOG group. In total, the 3 initiatives would both address the immediate needs relating to the administration of protected trees and set in motion a re-assessment of the other, longer term concerns that have been identified by the parties consulted as part of this review.

31. It is concluded that the proposed measures for the Scottish Executive, councils and owners would create a TPO system that would be more advanced, more effective and more in tune with society's values than that operating anywhere else in the United Kingdom. On this basis, it is recommended that the 3 priority tasks for the Executive should be initiated within the near future in order to build on the enthusiasm and commitment to the protection of high amenity trees that has been shown by all of the parties consulted during this review. The secondary priorities should be considered carefully with a view to implementing the proposals within 3 years.

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