UKTC Archive

Re: Basis for TPO's

Subject: Re: Basis for TPO's
From: Daniel Wynn
Date: Dec 22 2011 09:22:45

Paul
I've assembled a response to your questions, although please note I've
not had the time to prepare a more considered written response...
 
PH: On what basis does a TO subject a tree to a TPO?
DW: Councils are under a duty to protect trees. Section 197 of the Town
& Country Planning Act 1990 states: 
 
‘it shall be the duty of the local planning authority to ensure,
whenever it is appropriate, that in granting planning permission for any
development adequate provision is made by the imposition of conditions,
for the preservation or planting of trees’
 
Section 197 of the Act also states that:
 
‘..it shall be the duty of the local planning authority to make such
Orders [Tree Preservation Orders] under section 198 of the Act as
appears to the Authority to be necessary…'
 
PH: Is it purely visual amenity, conservation, ecological,
environmental or all? 
 
DW: predominately visual, although other secondary factors can be taken
into consideration. The BB (3.2) mentions that "TPO should be used to
protect selected trees and woodlands if their removal would have a
significant impact on the local environment and it's enjoyment by the
public"
 
PH: Does the TO concern himself/herself with the geography, whether it
be urban, sub-urban or countryside?
 
DW: it's unlikely that the loss of a tree growing in the countryside
will have such an impact as, say, an urban tree, although it's tempting
to intervene when a farmer decides to take out all his hedgerow trees.
Much depends on circumstances
 
PH: What relevent factors come into play?
 
DW: see 3.3 to 3.5 of the BB- A TO must be able to explain why the tree
is important. Personally, if I can't convince the tree owner that their
tree is worthwhile saving, then I seriously question whether the tree is
good enough to protect in the first place. Most people are reasonable
people and reasoned argument usually prevails. If no-one agrees the tree
is important, however, then it probably 'aint!
 
PH:If the tree cannot be seen by numerous households and enjoyed by
such, does this affect the decision?
 
DW: A TPO is a restriction on the freedom and liberty of the tree
owner. A TPO is raised for the wider benefit at the expense of the
individual. I would say that it is essential that the tree(s) are
visible to the wider public. Even courtyard trees may be excluded from
consideration because if only local residents can see it, or if the
public cant see it, where then is the wider public interest element?
 
PH:In terms of expediency and development and if the development where
in secluded grounds, would the TO be inclined to TPO or not?
 
DW: Well, we might put a TPO on land we know is to be developed because
we need to be mindful of our 'duty' to protect trees. This should not
prohibit development, but clearly the trees become a 'material
consideration'. I've put temporary Area Orders on land and protected
everything, to then allow a competent tree consultant assess the trees
in relation to BS:5837 to exclude those that do not merit or qualify,
and then allow the planners to decide which of the remaining are to be
retained in association with that development. The order is then
reviewed accordingly. Of course, it don't always works that way, and a
pushy local objector can make life very difficult when making objective
or even subjective decisions about what stays and what goes. 
 
PH: Is a judicial review the way forward in overturning the TPO, or
does this lie only on appeal?
 
DW: only if your pockets are deep and you have nothing else to do and
you would probably loose. If, after checking through the reasons given
in support of the Order, you honestly believe the tree(s) do not merit
or even qualify for protection, then simply make an application to
remove them, or object to the imposition of the Order if it's with the
28 day consultation period. Give your reasons, and in the event the LA
refuses the application, you can then appeal the decision. Be warned
that appeals are decided on the information provided by the applicant
when the application was made so no new information will be taken on
board once the appeal is lodged. I've encouraged this approach by
aggrieved tree owners/consultants who tend to quieten down when the
Order is tested on appeal.
 
DW
 
   


Paul Hawksford <arborconsulting@xxxx.com> 21/12/2011 20:45 >>>

Seems like a daft set of questions but:


On what basis does a TO subject a tree to a TPO?
Is it purely visual amenity, conservation, ecological, environmental or
all? 
Does the TO concern himself/herself with the geography, whether it be
urban, sub-urban or countryside? 
What relevent factors come into play? 
If the tree cannot be seen by numerous households and enjoyed by such,
does this affect the decision? 
In terms of expediency and development and if the development where in
secluded grounds, would the TO be inclined to TPO or not?
Is a judicial review the way forward in overturning the TPO, or does
this lie only on appeal?

I've trawled the 2009 amended Blue Book, but may be missing the
point........

Appreciate your reply as always..... and a Merry Xmas to
UKTC...........!!!!!!

Regards.


Paul Hawksford 
Principal Arboriculturist
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