Monday, 27 June 2011
Protecting trees by condition
This post is a follow-up to my recent post on ‘pre-commencement conditions’.
I am very grateful to Chris Anscombe, who is a retired Planning Inspector with wide experience of such matters, for contributing the following note.
Chris writes:- “I quite agree there is no substitute for a TPO when it comes to protecting trees. I used to ask awkward questions as an Inspector when conditions were suggested in order to protect existing trees, or indeed hedges. Even after the permission has been implemented, how could such conditions be enforced? If a tree is cut down in breach of a condition what can the LPA do? Breach of a condition in itself is not an offence so there can be no prosecution. The LPA could serve an enforcement notice or breach of condition notice but could only require the planting of a replacement tree within in certain period. A sapling for a mature tree. Not quite the same and possibly far less of a constraint on the development of the site. But what then if that tree subsequently dies? The notice would have been complied with on the planting of the tree.
Even more difficult with hedges. If a hedge is removed a replacement can be required to be planted, but would take time to become established. However, I once had a S73 conditions appeal case where the condition required an existing hedge be maintained at a height of 2m (in that case for privacy and screening purposes). I asked the planning officer what he would do if it were reduced in height to 1m. He said he would take enforcement action. I asked what would be the required steps. Graft the hedge cuttings back on perhaps? He got the point and then said he would specify that the hedge not be cut until it was again 2m in height. I asked what would be the period for compliance - did he know how long the hedge would take to grow to that height again? In any event an enforcement notice requires steps to be taken, not inaction!
Conditions relating to living things can be quite difficult.” - CHRIS ANSCOMBE
This goes some way beyond the problem I originally had in mind. I confess that I had not seen any problem in post-commencement conditions seeking to protect trees. I am not sure that I would entirely agree with Chris Anscombe’s pessimism about the practicability of enforcing such conditions, once the planning permission has been implemented. Some of the criticisms of such conditions which he makes might equally be made of TPOs. If a tree is destroyed, whether deliberately or accidentally, it has gone and the best one can do is to insist that another tree be planted to replace it. The threat of criminal sanctions if a tree protected by a TPO (or by s.211 of the 1990 Act in a conservation area) is wilfully damaged or destroyed would, one hopes, be a deterrent to such action being taken by a developer, but one has to place some reliance on the good faith of the developer.
Making a TPO might be an option which some LPAs would wish to pursue in these circumstances, but if an LPA chooses to go down that route, one hopes that they will have the commonsense to ensure that only the trees shown on the application drawings as being retained are included in the schedule.
In any event, as I indicated before, I am entirely unable to suggest a form of wording for a pre-commencement condition which would be effective to prevent anything being done on site which falls short of commencement of the development authorised by the planning permission, prior to the implementation of that permission. This, as I explained in my original post, is due to the fact that the condition itself will not take effect until the planning permisison is implemented.
© MARTIN H GOODALL