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TREE PRESERVATION ORDERS: CONSULTATION PAPER

TREE PRESERVATION ORDERS - CONSULTATION PAPER

Introduction

1. Trees are a valuable part of our built environment contributing to landscape quality, local amenity and nature conservation. Trees and landscaping are integral to the design quality of most developments. They help to define the character of an area, improve quality of life, and increase the attraction of places for people to live and work in. All communities should enjoy the benefits of trees, and planning remains one of the key instruments for achieving this.

Legislation

2. Trees are protected by the Town and Country Planning (Scotland) Act 1997, through Tree Preservation Orders (TPOs) (Section 160), Conservation Areas (section 172) and Planning Conditions (section 159).

3. A tree preservation order (TPO) is an order made by a planning authority in respect of trees or woodlands. The principal effect of a TPO is to prohibit the cutting down, uprooting, topping, lopping, wilful damage or wilful destruction of trees without the authority’s consent. In the case of conservation areas, notice must be served on the planning authority before any work can be undertaken. The planning authority then has 6 weeks to either give their consent or serve a TPO for the trees in question. TPOs are generally used when a valued tree, group of trees or woodland is considered to be under threat.

4. The Town and Country Planning (Tree Preservation Order and Trees in Conservation Areas)(Scotland) Regulations 1975 provide secondary legislation further setting out the procedures for serving a TPO and the form and content of the order itself. Minor amendments to these regulations were made in 1981 and 1984.

Background

5. In Scotland the legislation relating to trees has changed little since 1975, and in 2002 research was commissioned to examine whether the TPO procedures in Scotland are still effective. The research report ‘The Effectiveness of Tree Preservation Orders in Scotland’ published in December that year, found that the TPO system is basically sound, and that a series of fine tunings would provide an up-to-date structure for protecting trees across Scotland. The proposals for legislative change presented in this consultation paper are based on the findings of this report and subsequent discussions with stakeholders. In England and Wales, a similar review of TPOs led to the Town and Country Planning (Trees) Regulations 1999.

Consultation

6. The principles of tree preservation are long established and therefore this consultation does not seek views on the many wider issues relating to trees. This paper sets out a number of specific proposals for changes to the Town and Country Planning (Scotland) Act 1997 and The Town and Country Planning (Tree Preservation Order and Trees in Conservation Areas)(Scotland) Regulations 1975. We believe that these proposals would improve the effectiveness of TPOs and simplify a sometimes complicated system. This consultation also invites comments on whether the Forestry Commission should be made a statutory consultee for planning applications that involve significant amounts of felling. No final decisions have been reached on any of the issues covered and the purpose of this consultation is to encourage informed and focused discussion on a number of detailed points.

7. Following full consideration of all the responses, changes to the legislation will be taken forward through the forthcoming Planning Bill and new regulations. The consultation is aimed at all members of the public, local government, the arboricultural industry and special interest groups, throughoutScotland.

Regulatory Appraisal

8. The Executive is committed to delivering a better regulatory framework to assist business, regulator and the wider community. In finalising proposals for presentation to Parliament, a Regulatory Impact Assessment will be undertaken with the aim of ensuring that the right balance is achieved between securing the benefits of regulation and minimising the regulatory burden. To assist in preparing such an appraisal, it would be helpful if respondents could give an indication of any potential benefits or cost implications of the proposals.

ISSUES FOR CONSIDERATION

Removing the distinction between TPOs and provisional TPOs

9. Section 160 of the Town and Country Planning (Scotland) Act 1997 establishes the power to make tree preservation orders. A TPO served under this section of the Act does not take effect until the order has been confirmed by the Planning Authority following publicity and the consideration of any representations.

10. However, if it appears to a Planning Authority that a TPO should take immediate effect they can include a direction applying section 163 of the Act. The TPO then takes effect on the date specified but only provisionally. If the TPO is not confirmed within six months then the protection comes to an end. Such orders are commonly referred to as ‘provisional orders’

11. It has become standard practice for Planning Authorities to automatically include a direction under 163 so that the TPO takes immediate effect. This widespread practice strengthens the protection of the tree or woodland and has no discernable implications for the consideration of representations or timescales for confirming the order.

Protecting Trees under immediate threat

12. Serving a TPO can take time as information such as land ownership is gathered and the order itself is drafted. In a minority of cases, substantial felling can take place before the Planning Authority is able to serve the TPO. To address this problem the review into ‘The Effectiveness of Tree Preservation Orders in Scotland’ suggested that an emergency power, similar to a stop notice, could be introduced which would prohibit all operations in relation to defined trees.

Placing a general requirement on Local Authorities to monitor TPOs

13 .TPOs can be very specific; identifying individual trees, their location and species. However, trees and woodlands change over time as they mature, die, and are replaced by new growth. As a consequence out of date TPOs can have very little of their original tree cover left leaving the trees without any protection. Surrounding land uses can also change over time and in some instances a TPO served many years ago may no longer be appropriate. To ensure that trees and woodlands are given adequate protection, and to keep TPOs up to date, Planning Authorities should review their TPOs regularly and make use of the variation and revocation powers available to them.

Clarifying the position on varying and revoking powers

14. Section 275 (8) of the Town and Country Planning (Scotland) Act 1997 confers a general power on local authorities to vary and revoke orders. The power to vary a TPO allows orders to be updated. The revoking power is usually used when a TPO becomes obsolete because of changes to the trees or woodlands or because they are no longer under threat. The procedures for varying and revoking TPOs are set out in the Third Schedule to the form of the order. These require local authorities to notify owners, advertise the changes and invite objections, serve the notice and in some instances confirm it. These procedures are complicated and time consuming.

Statutory Undertakers and TPOs

15 .A tree protected by a TPO can be uprooted, felled or lopped provided it is urgently necessary in the interests of safety or for the prevention or abatement of a nuisance. Section 160 (6) of the Town and Country Planning (Scotland) Act 1997 requires that notice in writing is given to the planning authorities as soon as practicable after the operations. This allows the Planning Authority to update their records, consider the need for replacement planting, and helps them deal with any queries relating to the operations.

16. Statutory undertakers, such as electricity operators or railway companies, are also allowed to uproot, fell or lop trees protected by TPOs provided it is in compliance with their statutory duties, but they are not required to notify the planning authority of these works. Although many of them do so as a matter of good practice.

Ensuring that all replacement trees are subject to TPOs

17. Planning Authorities can require replacement planting for trees that have been removed, uprooted or destroyed in contravention of a TPO, or trees that have been removed in the interests of safety. Section 167 of the Town and Country Planning (Scotland) Act 1997 ensures that the original TPO remains in force for these replacement trees.

18 .Replacement trees can also be required as a condition of consent following an application to fell a tree covered by a TPO, but in these cases the replacement planting is no longer covered by the TPO.

Adding historic value to amenity as a reason for serving a TPO

19. TPOs are only made if a planning authority considers it to be expedient in the interests of amenity. Many trees have important cultural or historical significance and it has been suggested that the terms of the Act should be broadened to allow TPOs to be served on the basis of historic value. It is also argued that the existing arrangements already allow for this.

Introducing procedures for trees in the ownership of Planning Authorities

20. Planning Authorities can undertake work on protected trees under their ownership without going through any form of procedure. It has been suggested that this goes against principles of local accountability and transparent decision making.

Extending notification requirements

21. Section 161 (4) of the Town and Country Planning (Scotland) Act 1997 requires planning authorities to notify the owners and occupier of land affected by a TPO. Unlike planning permissions there is no requirement to notify neighbouring properties, although some authorities do notify neighbours as a matter of good practice.

Removing compensation exemptions

22. When a planning authority refuses consent to undertake works on a tree covered by a TPO they can certify that their decision is in the interests of good forestry, or that the trees, groups of trees or woodlands have an 'outstanding' or 'special' amenity value. This power is set out in article 6 of the schedule relating to the form of the Tree Preservation Order. The simple effect of an article 6 certificate is to remove the Planning Authority’s liability to pay compensation for loss or damage caused or incurred as a result of their decision. In reality, Article 6 certificates are rarely used. In England the use of these certificates has been removed but restrictions have been placed on minor compensation claims.

Providing a clear legislative framework

23. The legal framework for TPOs is provided in both primary and secondary legislation, neither of which have been significantly updated since 1975. Any new provisions will be also be delivered through a Parliamentary Act and subsequent regulations. The current legislative framework can seem complicated and difficult to use. Tree Preservation Orders themselves run to several pages, are difficult to draft and use language that is hard to understand; but they also contain important legal information.

Minor Changes

24. In addition to the above points we intend to make some minor changes to administrative practices so that Planning Authorities would be required to record dates and decisions on the TPO itself. We would also update the legislation to reflect new subsections added by the Planning and Compulsory Purchase Act 2004 removing Crown immunity. The list of statutory undertakers would also be updated.

Making the Forestry Commission a statutory consultee on planning applications that involve felling of more than 0.25ha

25. The Town and Country Planning (General Development Procedure) (Scotland) Order 1992, as amended, details a number of consultations planning authorities must take in relation to certain planning applications. Statutory consultees include bodies whose interests may be affected by a planning application and whose views the planning authority should have prior to determining an application. Article 15 of the Order contains the list of consultees and the individual criteria for triggering consultation. In some instances, where the planning authority wish to grant planning permission but in doing so choose to set aside the views of a statutory consultee, the planning application is notified to the Scottish Ministers. These notification requirements, which have, in the main, been put in place to ensure that the Scottish Ministers are made aware of development proposals that may raise issues of national importance, are set out in the Town and Country Planning (Notification of Applications) (Scotland) Direction 1997, as amended.

26 .There have been a number of cases where significant felling has been undertaken as part of a planning permission. In such cases the planning permission overrides the need for a felling licence and the Forestry Commission have no involvement in the case.

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