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THE EFFECTIVENESS OF TREE PRESERVATION ORDERS IN SCOTLAND

CHAPTER ONE: CONTEXT OF THE RESEARCH

ORIGINS OF THE CURRENT TREE PRESERVATION ORDER (TPO) FRAMEWORK

1.1 Although the origins of TPOs in Scotland are closely associated with the 1948 Planning Act (together with the linked Tree Preservation Order Regulations 1948), there are a limited number of earlier orders prepared in pre war years. In Glasgow, there are detailed records of some 40 TPOs prepared under the 1935 and the 1942 Acts. A major update and consolidation of the earlier TPO legislation occurred in 1972 with the introduction of the Town and Country Planning (Scotland) Act in that year. Sections 57-60 and 98-99 (relating to enforcement) in this Act provided the basic legal framework. In addition section 98 extended the powers of councils by providing a statutory protection for trees growing in conservation areas.

1.2 Currently, the Town and Country Planning (Scotland) Act (notably, sections 160 to 171 in relation to TPOs; sections 172 and 173 with regard to conservation areas; and section 159 covering planning conditions) provides the primary legislative framework that enables local authorities to safeguard the long term future of individual trees, groups of trees or woodlands in an area. The sole test that a council has to apply when evaluating whether a TPO is appropriate to a particular situation is "in the interests of amenity" (section 160 of the 1997 Act). An additional level of control springs from the secondary legislation that is set out in the Town and Country Planning Tree Preservation Order and Trees in Conservation Areas (Scotland) Regulations 1975. Amendments to these regulations were made in 1981 and 1984.

1.3 The scope and the on-going operation of TPOs are strongly influenced by a series of related legislation. The Forestry Acts of 1951, 1967 and 1979 introduced and subsequently refined the requirement for felling licences across Britain. The importance of the overlap between the planning and forestry roles in protecting trees is reflected in the provisions of sections 160, 162 and 166 of the 1997 Act. Other legislative protection for trees is incorporated in the Wildlife and Countryside Act 1981 (the notification procedures for Sites of Special Scientific Interest and the establishment of National Nature Reserves); and the Agriculture Act 1986 (which establishes Environmentally Sensitive Areas).

1.4 General advice on the handling of trees in relation to planning proposals is contained in NPPG 18 "Natural Heritage"; BS 3998 (1966) "Recommendation for Tree Work"; BS 5837 (1991) "Trees in Relation to Construction"; and the National Joint Utilities Group (NJUG) 1995 "Guidelines for the Planning, Installation & Maintenance of Utility Services in Proximity to Trees".

1.5 Although there is no accurate survey of TPOs covering the whole of Scotland, my interviews with the 4 city councils (Glasgow, Edinburgh, Dundee and Aberdeen) and 4 rural authorities (Scottish Borders Council, East Lothian Council, Stirling Council and Inverclyde Council) demonstrate both the importance of tree related issues in planning work and the continuous workload that this sector creates for local authority staff. In relation to enquiries from the public, Edinburgh has some 3,200 written, e-mail and telephone enquiries each year; Glasgow has some 500 such requests: Dundee has some 170 written and 600+ telephone requests for works to protected trees (60% of which relate to conservation areas and 40% to TPOs); and Aberdeen has around 110 written and 800 to 900 telephone requests p.a. (70% to conservation areas and 30% to TPO trees). In relation to the 4 rural authorities consulted, the range of formal written requests for TPO and conservation area related consents each year varies from 100 to around 400 (with the heaviest workload being generated by conservation area enquiries).

1.6 This review highlights the fact that there is a steadily growing interest across Scotland in all tree related issues. Four main factors contribute to this trend. First, the public is becoming increasingly aware of environmental issues. The constant references to the environment in the media reflect this mood. Secondly, there has been a rapid increase in the number of environmental groups at a national and a local level. Many of these groups place tree issues at the centre of their on-going priorities. An interesting example of this trend is the amenity society in Haddington which has sponsored a local resident (Roger Kirby) to produce a detailed history of trees in the town. Thirdly, the development-related professions (notably, planners, architects, landscape architects, surveyors and engineers) now accept the need to incorporate mature trees in developments as a matter of course, rather than simply cutting them down. This trend has led to a rapid increase in the number of landscaping companies involved in tree work. Finally, most councils (as the centre point for TPO issues) have set up small professional groups to deal with the increasing workload. The presence of these groups in themselves generates interest both within and outwith the local authority. In addition, some planning departments have produced guidance notes covering the technical and procedural issues raised by both TPOs and by trees in conservation areas. These tree-related booklets are highly popular with the public; they encourage positive contact with officials; and they are having an effective impact upon the tree cover in their respective areas.

1.7 In contrast to the positive trends outlined above, there are a number of concerns about the long-term future of protected trees. First, the site inspections showed that a disturbingly high percentage of TPO sites were not being maintained in a manner that retained the qualities of amenity that led to the original designation. Although the precise reasons for this apparent indifference cannot be established with certainty, it is clear that lack of knowledge, disinterest in trees and financial considerations in some sections of society all play a part. In addition, the perceived indifference of councils through lack of contact and positive guidance is a factor that discourages many owners undertaking maintenance operations.

1.8 Protected trees are often badly affected by the erection of buildings too close to the canopy (domestic garages and house extensions are of particular concern in this respect). The insertion of underground utilities and the creation of parking bays right up to the trunk are additional, well-documented dangers to the long-term health and appearance of trees. The impact upon the sensitive root systems and the balanced form of the canopy are critical in this respect. In other cases, owners have not planted replacement trees where the original specimens have died, been removed or blown over. All of the above negative elements apply most frequently to the pre 1970 TPOs where the documentation and the legal framework has not been completed to the standards that apply currently.

1.9 A final area of concern in Scotland relates to the lack of up-to-date government advice on protected trees. In contrast, in England, there is the DETR "Blue Book" published in March 2000 that defines best practice, outlines key procedures and provides model forms for the critical elements in the administration of TPOs. This book (as well as its 1988 predecessor) is widely used in Scotland even though there is the legal limitation that all the statutory references are to the English planning acts.

1.10 Despite the limited number of negative elements outlined above, there was complete support from the parties consulted for the well-established principles and procedures that underpin tree preservation. This support comes equally from the private and public sectors and includes (most importantly) development-orientated interests. In this latter group, there is widespread recognition that well sited and maintained trees not only add to the general amenity of an area but also enhance the market appeal of a well-designed project. Among all of these sectors of society, it is widely recognised that a TPO is a legally binding burden on land; that it is a material consideration in evaluating any development proposal; and that there is both a legal and a moral obligation to comply with the requirements of the system that protects trees. On this basis, I conclude that there is no immediate need to introduce immediate, fundamental changes to the current legislative framework.

1.11 Whilst the principles that underpin TPOs are fully supported, my interviews generated various readily achievable and widely supported suggestions for the improvement and the refinement of the current system. These elements (which represent fine tuning rather than radical surgery) are analysed in detail in chapter 3 and the resultant conclusions are developed in chapter 4.

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