Happy New Year, let’s hope it’s a good one. With a refreshed vigour for prioritising the climate crisis throughout our work, we’re going to use the year ahead to look at areas of the English planning system that support biodiversity, environmental protection and sustainability. So for our first blog offering of 2022, we take a whistle stop tour of how the regime currently protects trees.
The Government wants us to build back better and greener, post pandemic (not sure we’re quite there yet!). As part of this, their England Trees Action Plan 2021-2024 sets out a long-term plan for England’s whole treescape – including trees, woodlands and forests – and proposes ‘unprecedented’ levels of new tree planting (circa 30,000 hectares by 2024) as part of its strategy to achieve net zero and to create a Nature Recovery Network throughout England.
This is great, but what about protection of our existing trees? Surely this is equally as important as planting new ones? Unfortunately, there doesn’t appear to be much on this in the Action Plan (other than securing ancient woodlands and veteran trees), so here’s a recap on the current provisions:
Within the planning system there is actually very little protection for existing trees. Formal protection currently falls within two areas: Tree Preservation Orders (TPO) and the protection of trees in Conservation Areas. Some Local Planning Authorities (LPAs) have included protection and replacement policies within their Local Plans and some have secured replacement tree planting for the loss of any trees as part of new development within Supplementary Planning Documents. But this is not standard across all LPAs. Plus LPAs have the power to protect trees through planning conditions (but this only comes into play as a result of a formal planning application process).
Tree Protection Orders
So what is a TPO? Essentially these are legal designations used by LPAs to protect specific and individual trees, groups of trees, woodlands and for short term protection purposes areas that contain trees.
TPOs are used to protect trees that are considered to have high amenity value or if their removal would have a significant negative impact on the local environment and its enjoyment by the public. LPAs can only use a TPO to protect anything that may ordinarily be termed a ‘tree’ and can be of any size and species. This includes trees in a hedge or an old hedge which has become a line of trees of a reasonable height.
Once in place an Order prohibits owners (or others on their behalf) from cutting down trees or cutting their roots, the topping, lopping, uprooting, wilful damage and wilful destruction of trees without the LPAs written consent. Consequently, any works to a TPO tree have to be secured through a formal application process.
Owners of TPO trees are, like the owners of unprotected trees, responsible for maintaining them. However, there are no statutory rules as to how often a tree should be maintained or to what standard. If you’re one such owner, it would be prudent to get formal advice from a qualified Arbouriculturalist on the health and management strategy for any trees within your site, before you proceed with any works. Whilst the LPA cannot require maintenance work to be done to a tree just because it’s protected, it can encourage good tree management, particularly when determining TPO applications – this can be secured through condition.
Also, it’s worth being aware that if you have a development site that contains unprotected trees, LPAs can issue a TPO as part of a pre-application response if they have concerns over potential loss of trees or overall amenity value. This process can be undertaken very quickly and without prior notification (North Somerset Council is adept at using this mechanism at pre-application stage).
A TPO comes into effect on the day that it’s made, after which the LPA has a provisional period of six months to officially confirm it. During this time, there is the opportunity to object to comment on the provisional TPO, although as the LPA is effectively the judge of their own TPO applications, it’s very hard to challenge them. Realistically, the best that can be secured is a variation on the scope of coverage or exclusion of poorer quality trees. Once a TPO is in place only the LPA can vary or revoke it. A site owner or developer has no right of appeal against the imposition of a TPO.
Separate consent is not required for carrying out works to TPO trees if these works are necessary to implement a full planning permission (not an outline or any other type of planning permission) and have been covered as part of the application submission. However, consent is required for work on TPO trees if the full planning permission has expired and if the works fall outside the scope of any full ‘live’ consent. The LPAs consent is also required for work on TPO trees in order to implement permitted development rights under the Town and Country Planning (General Permitted Development) Order 2015. So be aware of this if you are planning any PD compliant extensions to your house or erecting incidental buildings/structures in the garden or commercial extensions. Finally, there are instances where consent is not required for works to TPO trees. Known as an ‘exception’ these works comprise the removal of dead trees and branches, work on dangerous trees and branches, compliance with an Act of Parliament, the prevention or abatement of a nuisance, works that are necessary to implement a planning permission, work on fruit trees, works by or for statutory undertakers, works for highway operations, works by the Environment Agency and drainage bodies and work for national security purposes. However, even though formal consent is not required from the LPA in these instances, it’s always prudent to give notice of any works to be undertaken. A call into the LPAs arboricultural officer in advance of any works should suffice.
Protecting Trees in Conservation Areas
Trees in a Conservation Area that are not protected by a TPO are protected by the provisions in section 211 of the Town and Country Planning Act 1990.
These provisions require an LPA to be notified through a ‘section 211 notice’, six weeks before carrying out certain work to trees in Conservation Areas, unless an exception applies. The works may commence before the end of the six week period if consent has been given.
Again, as with a pre-application process, this notice period does give the LPA an opportunity to consider whether or not to issue a TPO.
Local Plan Policy Protection
Outside of the TPO and Conservation Area regimes, some LPA’s seek to secure the protection of trees through their Local Plan policies (either in Development Management Plans, Supplementary Guidance Documents or by showing designations of veteran trees and ancient woodland on their policy maps). Similarly, Neighbourhood Plans may contain policies protecting trees, which once adopted become a lawful part of the Local Plan and are used for decision making purposes.
Some LPAs have also produced Tree Replacement Standards (Bristol City Council has a well established one) which oblige you to replace any unprotected trees that are being removed from your site in order to facilitate development. As a heads-up, if you remove unprotected trees beforehand, LPAs are very likely to take the view that they were removed for such purposes and will apply their Tree Replacement Standards anyway. Replacements should ideally be accommodated on site.
Application Considerations and What You Can Do:
So, as a reminder/ plea, when looking at a new site which contains trees:
- Check whether any are covered by TP0s, are designated as veteran specimens or ancient woodland, or if your site falls within a Conservation Area
- View trees as a valuable asset and consider how they can be protected and retained within your development, unless their health is severely compromised. Design your scheme around them and use them as a focal point (in the current climate, LPA’s are only going to get more protective, so you may as well factor this in from the outset)
- Use a qualified Arboriculturalist to assess the health and value of your trees, and appoint a good landscape architect to design a scheme that incorporates them. They will understand the crown and root protection zone requirements and construction impacts, and ensure your development avoids management and maintenance pitfalls
It’s not rocket science that we must protect our existing trees. It seems pointless to advocate for mass tree planting and not provide a similar level of protection for our existing ones – those that have been around for generations. Not only are they vital for biodiversity, as wildlife habitats and carbon sequesters, but they are critical to the visual amenity of the developments that we create, with immeasurable benefits for our physical and mental well being (we have a lot to learn from the Japanese and the art of shinrin-yoku).
So, if you take one resolution forward this year – we urge you to understand, protect and cherish the trees on your sites. Take the opportunity to create areas of tree tranquillity or next time you’re out and about and you see a tree, stop, take a deep breath and hug it. We’re convinced it will pay dividends. Let’s make 2022 a Green one.