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THE EFFECTIVENESS OF TREE PRESERVATION ORDERS IN SCOTLAND

CHAPTER FOUR: CONCLUSIONS

OVERALL CONCLUSIONS

4.1 Having reviewed all of the 11 issues addressed in chapter 3, I consider that the most important conclusion from my research is that the current TPO system is basically sound; that there are no overriding reasons for making any fundamental change to the existing framework in the immediate future; and that a series of fine tunings drawing upon current best practice would provide an up-to-date structure for administering protected trees across Scotland within an 18 month period. If this approach is adopted, there would be ample opportunity to consider a wider range of possible improvements over the next 3 to 4 years and to introduce these as part of the updating of the 1997 Act in a few years time. It is concluded that the following short list of key issues needs to be addressed; that these can all be completed within a tight timescale; and that a commitment by the Scottish Executive to complete the "Blue Book", a GIS system and a revitalised STOG would represent a very effective use of public sector resources.

4.2 The need for additional government guidance on the procedural, technical and legal frameworks that apply to the protection of trees in both TPOs and in conservation areas. The end product would address many of the urgent issues identified during this review, notably the need to provide one authoritative source in Scotland for all work related to protected trees; best practice in areas where there is uncertainty; an indication of how grey areas in the legislation and current regulations have been interpreted by the courts, in appeals and in day-to-day local authority decisions; model flow charts for the administrative steps in TPO work; and an indication of where future legislative change may be appropriate.

4.3 Recommended Action (highest priority): the Scottish Executive should consider preparing a Scottish version of 'Tree Preservation Orders: A Guide to the Law and Good Practice', using the same 14 chapter headings, 9 model forms, code of practice and style of presentation. A 6-month workload is anticipated by a small team of professionals (principally a planner assisted by appropriate legal and forestry advice, together with a part time administrator).

4.4 The widely expressed need for guidance on the accurate recording of the data that applies to protected trees. A new Scottish wide, GIS based system would have to provide for rapid updating as well as continuous monitoring. The basic form would comprise an OS map base for each TPO; the position of each tree recorded by a GPS system; the statutory documents relating to each TPO; the procedures for administering the Order; the planning history of the site and its immediate environs; monitoring records (as defined by a series of digital camera and aerial photographs); and the contact points in the relevant council.

4.5 Recommended Action (highest priority): the Scottish Executive should commission a study of the use of GIS technology for the recording and monitoring of all data and maps relevant to TPOs. The study should concentrate on both urban and rural authorities, and it is likely that a small team comprising IT expertise, a planner, a lawyer (part time) and an administrator (part time) would be required. Current GIS technology (as viewed in Scotland at the Forestry Commission, British Geological Survey and councils, together with the pioneering work in Liverpool, Wrexham and Tameside in England) would allow this exercise to be completed in approximately a year.

4.6 The end product (which would act as a model for other areas of council work) would offer considerable savings in staff time; in the accuracy of the database; in offering definitive guidance for developers and the public; in projecting a modern, professional image for councils ("e-government" at a local scale); and create a system that would speed up all TPO related work. In addition, the health and safety issues raised by the recent Birmingham City Council case indicate that all local authorities must have a balanced tree monitoring system in situ within the near future.

4.7 The re-activating of STOG so that council officials (and other interested parties) could meet 3 or 4 times a year in order to discuss best practice in relation to protected trees. This group would provide a highly focused, cost effective and popular framework for disseminating best practice in relation to all tree related issues.

4.8 Recommended Action (highest priority): The Scottish Executive provides a chairman/secretary for a 2 year period so that the group is re-established in a structured form. Thereafter, council staff could take over the running of the group.

4.9 the updating of the database for TPOs in each area in a form that enables officials to record this information on the most up-to-date GIS technology. Based upon Edinburgh's recent experience in re-surveying 43 Area TPOs, each Order would require a 2 day input by a 2 man team. This conclusion is based upon the use of GPS technology (allowing each tree to be located within a one metre accuracy) and a survey rate of 100 to 200 trees per day (a realistic target). If each of the 32 councils in Scotland administer (on average) between 50 and 60 TPOs and half of these need to be re- surveyed, some 60 days work would be involved in this exercise.

4.10 Recommended Action (high priority): The Scottish Executive makes available the outcome of the GIS research outlined above in order to promote the re-surveying work within each council. The GIS system would mean that the recording of all TPO data could be kept up-to-date thereafter with relatively modest inputs of staff time. All the stored data should be available to the public via the Internet. The end product from this Scottish wide updating of survey material would offer marked on-going benefits for all parties involved in TPO work. In addition (and most importantly), the legal parameters established by the recent Birmingham court case would be met.

4.11 Creating a management framework within each council that would allow officials to administer and implement TPO measures in the most effective form.

4.12 Recommended Action (high priority): an issue that each council has to address within the context of its own standing orders, its staff complements and its annual budgets. A Scottish "Blue Book", together with the discussions at STOG, would assist in providing guidance as to both the principles and the fine detail that should underpin best practice across Scotland.

4.13 The preparation of a sound policy framework for the protection of trees in local plans. The local plan framework needs to be supplemented by the production of additional local authority guidance on the successful, long-term maintenance of trees with a high amenity value. This guidance needs to be tailored to the particular circumstances in each council area, highlighting the organisations, private companies and individuals that have a direct interest in tree management at the local scale.

4.14 Recommended Action (high priority): most councils need to give greater thought to the tree protection issue in local plans. Long term development control and environmental benefits would flow from having such a framework in place. Practical guidance for owners is best handled via a series of illustrated pamphlets covering key issues. These documents could be completed as a neatly defined, readily supervised task for a summer student. The well thought out booklets produced by Edinburgh and Stirling Councils provide a useful starting point in this context.

4.15 An important secondary priority relates to the need to update the planning advice on tree protection that is given to local authorities. The proposed advice note (which would fill a gap in the current series) should include the preferred framework for protecting trees in both local plans and in other council policy documents (a high priority); the dissemination of best practice in relation to the proposed GIS research into the recording and the updating of TPO databases (a high priority); the optimum staff structure for TPO work within councils; the most effective method for serving TPOs rapidly in emergency situations; how court action can be initiated speedily and effectively in relation to unauthorised works to protected trees; the role of government agencies (the Forestry Commission and Scottish Natural Heritage in particular), professional bodies (the Arboricultural Association and the Institute of Chartered Foresters), amenity bodies and the public can play in tree protection; the use of voluntary Tree Wardens to achieve environmental objectives; and a commentary on the legal issues that have not been fully resolved in legislation, in the courts, in appeal decisions and in local authority practice.

4.16 Recommended Action (secondary priority): a small team based in Planning Services in the Scottish Executive could produce a PAN once the high priority work summarised in section A above had been completed.

4.17 The dissemination of technical and procedural advice from central government should be made more effective by running a series of Scottish Executive seminars in Victoria Quay.

4.18 Recommended Action (secondary priority): an initial programme of 3 seminars would publicise the key messages from central government, namely, the benefits that would flow from the proposed Scottish version of the "Blue Book"; the opportunities for accurate data recording by GIS (based on the conclusions of the research study proposed above); and the effective, timeous use of enforcement powers for protected trees in the courts.

4.19 Preparing for an updated TPO framework in a new planning act should be an on-going process within the Scottish Executive. The current priorities for review include the use of a new "stop TPO" power; the legal definition of a tree, together with an explanation of the forestry terms of lopping, topping, uprooting, dead, dying, dangerous, destroyed, wilful damage and wilful destruction (all of which are open to widespread interpretation by different interests). Other important changes should centre upon the simplification of the English in any new act; the introduction of a requirement for councils to monitor and to update TPOs on a regular basis; the introduction of a requirement for TPOs to contain a management plan within 6 months of the Order being confirmed; bringing historic trees within the scope of the legislation; omitting the area classification for TPOs (in line with the English framework); and clarifying the position of Crown land.

4.20 Recommended Action: an on-going Scottish Executive function that is related to the wider planning objectives behind the updating of the 1997 Act.

4.21 Ensure that trees in TPOs and conservation areas are given their due weight in the on-going workload of central government. Examples of this process might be Ministers referring to tree preservation in policy speeches at conferences; Reporters running planning and local plan inquiries in a form that acknowledges the importance of protected trees; Scottish Executive officials defining TPOs as an agenda item in liaison meetings with council officials; and defining council budgets in a form that allows for adequate financial resources to be devoted to this issue.

4.22 Recommended Action: as environmental issues are gaining ever greater publicity, both central and local government should be conscious of the benefits of projecting a concern for protected trees. A specific initiative might be for Ministers and local councillors to revive the traditional practice of planting a specimen tree when opening a new project. This kind of image always attracts media attention and could be promoted via a re-working of an old slogan "plant a tree in 2003". The longer term benefits from Ministers complying with the spirit of the imminent Earth Summit in Johannesburg is a further factor that needs to be taken into account in this context.

4.23 Ensure that all future TPOs include a mechanism for monitoring and maintaining the standard of amenity that prevailed when the Order was first prepared. The range of mechanisms available to councils include use of section 75 agreements; the imposition of conditions if a planning consent is involved; ensuring that a legally sound and financially viable residents association exists (by agreement); involving the Greenbelt Partnership (in a limited number of situations); and by informal collaboration with owners.

4.24 Recommended Action: councils need to establish an internal management framework (including the full use of delegated powers) that allows TPO work to be undertaken in a co-ordinated form; in a manner that promotes the long term health and the shape of all the protected trees within each Order; and within a framework that encourages monitoring and management to be undertaken at appropriate intervals in perpetuity.

4.25 The creation of a council team that can respond rapidly to the limited number of situations where development pressure requires a formal protection for high amenity trees to be in place within 2 days.

4.26 Recommended Action: the capability to respond rapidly to a perceived danger to protected trees needs to be addressed. The initial analysis of best practice within the confines of the current legislation should be undertaken via the Scottish "Blue Book" with further debate on the detailed processing of individual Orders taking place at STOG. Thereafter, each council would conduct an internal review of its own procedures.

4.27 The establishment of a staff structure in all councils that reflects the constant (and growing) workload associated with protected trees.

4.28 Recommended Action: an issue that each council needs to address in its own manner.

4.29 The use of voluntary Tree Wardens to assist officials in managing the tree cover (including protected trees) within each council area.

4.30 Recommended Action: as this measure would harness the immense amount of enthusiasm for environmental issues in Scottish society, each council should evaluate the most effective framework within its own area. The emphasis should be placed firmly upon positive planning and environmental schemes rather than on heavy handed policing of TPOs and conservation areas.

4.31 Assisting local authorities in updating the data and the maps that relate to existing TPOs. As part of this process, owners could be encouraged to enter into a voluntary agreement with the council in order to prepare a management plan that would assist in preserving the long term amenity of protected trees. These inputs (which already exist in a few sites across Scotland) should flow naturally and widely from the publicity associated with the production of the Scottish "Blue Book", the GIS database, STOG and the council initiatives outlined above.

4.32 Recommended Action: the initiatives from central and local government outlined above is likely to generate a positive response from the majority of owners of protected trees. Councils have to anticipate this enthusiasm so that a momentum is built up to improve the amenity of protected trees.

4.33 Supporting a general movement towards open, "e-government" whereby all local authority data and documents can be made available to the public via the Internet. The use of the TPO sector to initiate this trend would highlight the benefits that could accrue if other local government functions were to be opened up in the same manner.

4.34 Recommended Action: the issue of making local authority data available for public inspection needs to be reviewed by both central and local government. Within this context, the TPO framework offers a useful, self contained sector of work that could be used as a test bed for the much wider, more politically sensitive range of information held by councils.

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