Friday, 8 July 2011

Trees and pre-conditions


I am very grateful to Paolo Bavaresco, of TMN Tree Management [www.treemettlenexus.com] for contributing the following note on this topic.

Paolo writes : “I shall offer the benefit of my knowledge and experience over 23 yrs, including hostile confrontations and developer/LPA wars with TPOs.

Trees are protected in law by TPO and Conservation Area restrictions - as Martin states - but also via felling licences [ http://www.forestry.gov.uk/forestry/infd-6dfkw6 ] - I think that answers Martin’s blog question?

There are also litigation considerations for the developer regarding trees – the public and construction staff can be at risk of injury from trees, often from inadvertent damage on site by construction. I once witnessed a construction-damaged tree uproot with each gust of wind to an angle of 30 degrees blocking the site entrance; the dumper driver would wait for the wind to die down and the tree lift back up to allow him to proceed. Upon cautioning him regarding his own safety, he replied he’d been doing it all week!

Although a developer can prune branches and roots of third party trees up to his boundary, this may be detrimental to the health and safety of those trees. Legal action could be taken by the owner of the trees against the developer for compensation based on the amenity valuation of the trees.

Developers have been known to fell all trees owned by them in close proximity to any development of theirs, BEFORE any contact with planning. It is very rare for this approach nowadays, at least with my clients, because it sends a bad signal to planning, risks prosecution by DEFRA for breach of tree felling licence restrictions (more than 5 cu m of timber felled within any quarter requires a licence, of which no more than 2 cu m can be sold - see exemptions) and the Wildlife & Access to the Countryside Act may also be breached in the process.

As a response to bulldozing unprotected trees, some LPAs do not make available to the public the maps showing where all TPOs and Conservation Areas are in force.

The preferred LPA modus operandi is for the public to contact the LPA with site and enquirer grid reference/ address and postcode, before the information is divulged. This allows them to control loss of tree cover - they can check if there are any trees of significance and apply a TPO.

The Town & Country Planning Act states that maps of TPOs and Conservation Areas must be made available for public viewing at a public venue such as a library or council offices. Some LPAs do not make this information available without tight restriction. Their response is that such maps would be misleading, as new Conservation Areas and TPOs can come into force at any time - the law could be broken without the user realising, based only on out-of-date mapping information. This is something of a red herring, I feel, as a tree owner must be informed of such new restrictions coming into force, and new TPOs are rarely pro-active in my experience; a sound TPO really needs to have been assessed by a qualified arboriculturalist due to the subjective nature of assessing risk/cost/benefits of trees.

I would appreciate Martin’s point of view on the lawfulness of restricting access to Conservation Area/TPO maps.

The game changes once the LPA is notified of intent to develop. Trees are a material consideration in the planning process, regardless of TPO/Conservation Area status - it is the LPA’s duty to procure the amenity of the area; all trees have an inherent amenity to varying degrees. Arboriculture (and the Town & Country Planning Act) makes provision for health, safety and visual amenity of trees. But trees are also at the centre of ecological systems - the Wildlife & Access to the Countryside Act is concerned with their protection as a form of habitat in an indirect way, as wildlife is a material consideration in the planning process, and see also relevant ministerial guidance in both Wales and England

I agree with Martin that the use of conditions as stated is laughable really, but the planners are following ministerial guidance. TPOs and conditions have historically been used inappropriately in protecting trees subject to potential development.

Fortunately, there is a long established British Standard for assessing amenity value of trees suitable for removal or retention on development sites – BS5837 (up for revision). All an LPA need do is insist it is applied before any site work commences, along with citing BS3998:2010 for any tree work recommendations made.

Most LPAs as part of the planning process, will insist on a tree survey being carried out to BS5837:2005, including third party trees in the zone of influence, prior to any site works commencing, and a grant of planning permission will not even be considered until this has been done.

An ecological survey will also demonstrate that National and LPA planning policies regarding trees and their habitat will be complied with, again before site works commence and before planning permission can be considered.

I expect Martin is aware of all this, and he would probably agree that a requirement to assess trees to BS5837 does not afford them protection, and I would agree, but it certainly jeopardises the chances of receiving planning permission if tree constraints are ‘removed’ pre-application. In a recent fee proposal for such a survey, I stipulated that all trees within 12 x the diameter at breast height would need to be included. Upon reaching the site to survey, all trees within that zone had been felled, because of lack of statutory protection.

Urban trees are not being replaced as fast as they are being lost. Urban tree replacements take many years of careful attention to establish, let alone reach maturity. Trees absorb 10 Kg of Carbon Dioxide per year. Trees are vital carbon sinks, especially urban trees, particularly in the UK, which has a low percentage of forest cover. Add to this their importance in lowering flood risk, particulate pollution, noise levels and improving various warm fuzzy feelings of general well being. Current statutory protection (relating only to timber, wildlife and amenity) is wholly inadequate in protecting them and us from our development needs.

I hope this may be of some use to Martin and his blog visitors.”

© PAOLO BAVARESCO

[I confess that, when I wrote my original note, the possible need for a felling licence was not in the forefront of my mind, and so Paolo’s note came as a timely reminder of this further constraint on the removal of trees. The exemptions (which will be found on the Forestry Commission website mentioned above) are narrower than I recalled.

The extent of designated Conservation Areas should be readily ascertainable by viewing Council websites. I cannot recall the precise statutory rules within the planning legislation as to the availability of TPOs, but this is environmental information and as such should therefore be readily accessible under the Freedom of Information legislation.

I am not sure whether LPAs are always so rigorous in their approach to the retention of existing trees as Paolo suggests they should be when processing planning applications. As in so many other aspects of development management, performance can be very variable as between one LPA and another.

One final point which I should make clear is that a condition designed to protect retained trees will be perfectly effective and enforceable, once development has commenced; the problem which I identified in my original note arises during the period between the grant of planning permission and its implementation, when none of the conditions will yet have come into effect. No amount of clever wording of conditions will overcome this; a TPO may be the only way, although the need for a felling licence, as Paolo points out, may be a further measure of protection for the trees in the meantime. - MHG]


6 comments:

Chris Anscombe said...

Sorry to labour the point Martin, but the problem with a condition even post commencement is that there is no real deterrent effect as with a TPO, where it is an offence to lop, top or fell and so the person responsible would be liable to prosecution and (hopefully) a hefty fine. Breach of a condition is not in itself an offence. So a TPO will always be more effective than a condition.

Alky Lee said...

TPO is the only way to protect trees at risk from development. It applies independently of any approval or conditions. I am aware of an application for residential development being refused. One of the reasons was the loss of mature landscaping. Naturally, the developer removed the landscaping and re-applied for consent which was approved.
Conditions stating that "trees shall not be removed, but any that are removed shall be replaced" are a green light to developers to remove any trees that are in the way and replace them later.

alice said...

(1)As regards the issue of making pre-conditions effective I have recently come across the following added to the tree condition by a LPA "...this permission shall lapse if any retained tree is felled,pruned,or relocated prior to the commencement of development unless otherwise agreed in writing by the Borough Council" Would this stop developers ignoring the pre-conditions to retain trees?
(2)I have come across a situation where the developer removed pre-conditioned "to be retained trees" in an existing approved application(say A) prior to submitting a new planning application(say B); in supporting the new application(B) the planning officer's report to the planning committee described the application (A) as extant. In the circumstances I was left to wonder how (A)could be called extant when the pre-conditions had already been flouted.
(3)Is not the granting of a planning application a contract that needs to be obeyed to the letter?

Martin H Goodall LARTPI said...

In answer to Alice’s questions:

(1) I am doubtful as to the lawfulness of such a condition. In any event, there would be nothing to stop the developers removing the trees, then applying for a fresh permission (even if the original permission could be conditioned in this way, which I doubt). An obvious first move for any developer would be to remove any unprotected trees from a development site before even applying for planning permission in the first place.

(2) The first permission (A) would remain unimplemented, but extant of it has not expired. The planning officer was therefore correct. Only if permission ‘A’ had been implemented without compliance with the condition might there be a potential question-mark over the lawfulness of the implementation of that first permission.

(3) No. A planning permission is not a contract. The lawfulness of the development depends on how far it has departed from the terms of the permission. The courts have made it clear that it is not necessary to comply with every last detail of a permission. One has to take a view as to whether any departures (including any breaches of condition) are sufficient to take the development outside the scope of the permission, and that will be a matter of fact and degree in each case. There is certainly no requirement that a planning permission must be complied with ‘to the letter’.

passerby said...

Many local authorities now claim that an ecological survey may be required in order to validate an application. Is there any legal basis for this?

Martin H Goodall LARTPI said...

This question boils down to the reasonableness of the LPA’s insistence on an ecological survey in the circumstances of the case. If it is clearly not justified, a mechanism now exists for challenging this, and may well result in the point being resolved without resort to the appeal procedure.