UKTC Archive

RE: Size of trees and area-basis TPO

Subject: RE: Size of trees and area-basis TPO
From: Alastair Durkin
Date: Jan 22 2020 10:17:40
Philip

You are right of course, I think it would be extremely unusual for an 
individual or group category to be used for a sapling, but what is common 
sense is not necessarily what is law. I would be more than happy for such a 
distinction to be made in law, but currently there is none, and the closest 
precedent we have is Palm Developments. I think  anybody who wishes to argue 
that in law would need very deep pockets and be willing to have a good chance 
of losing - of course somebody always does when it reaches court - but both 
sides will think they have a good chance of winning or they wouldn't be there 
(tell me about it!). 

I also think Jim makes a good distinction between 'woodland' and 'area', but 
irrespective of the ecological distinction, it is likely that if the TO does 
not intend to re-survey for individuals and groups, then the protection of a 
large plot of trees may better served with a woodland category - certainly 
for administrative reasons. Of course, the only time any allusion is made to 
administrative matters is with reference to area orders rarely being 
appropriate  except in emergencies (extract from online guidance below):

"The area category is intended for short-term protection in an emergency and 
may not be capable of providing appropriate long-term protection"

BUT, the preceding paragraph is food for thought:

"When should the area category be used?

The area category is one way of protecting individual trees dispersed over an 
area. Authorities may either protect all trees within an area defined on the 
Order’s map or only those species which it is expedient to protect in the 
interests of amenity."

So even the guidance suggests it may be ok to protect trees which it may not 
actually be expedient to protect in the interests of amenity - which is odd 
to say the least, and I wonder if whoever wrote that did not actually 
consider the wording of s198 - not forgetting that areas only come into the 
mix within the model order contained within the Regs...,and not within the 
Act or the Regs themselves

Alastair

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
On Behalf Of Philip Wilson
Sent: 22 January 2020 09:55
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: RE: Size of trees and area-basis TPO

Hi Alastair,
You make a good point about reading the Schedule - I'm waiting for it in the 
case I have in mind.

I notice that you give little weight to the difference between area-basis and 
woodland-basis TPOs, which is perhaps surprising, and the CA and other 
definitions help to make my point: a juvenile tree approximates to tree form 
(say height 5m) and is likely to be at least 10 years old or so. Since you 
don't mention it I presume that no such juvenile trees or younger trees have 
been protected by an individual-basis or group-basis TPO since Palm 
Developments, suggesting - to me anyway -  that area-basis trees are expected 
to be older than that. 

Did the reference to 'anything that may ordinarily be termed a tree’ in 
Bullock v. Secretary of State 1980, picked up by the NPPG, refer to a pair of 
cotyledons? I don't think so!

But you're right. I'd better wait for the Schedule. Thanks for helping me to 
think about this.
Philip



-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Alastair Durkin
Sent: 22 January 2020 09:13
To: UK Tree Care
Subject: RE: Size of trees and area-basis TPO

Hi Philip 

I think the thing is, it doesn't really matter what the TO thought about at 
the time. What does it say in the schedule? I have hundreds of TPOs where I 
have no idea what the TO was thinking at the time. It is the schedule and map 
that is the defining factor. A tree is a tree as soon as it has broken 
ground. That is the closest precedent, albeit in a case where it was a 
woodland TPO affected.

I found an interesting passage from Martin Goodhall's blog piece regarding 
Distinctive Properties (Ascot) Ltd v SSCLG [2015] which I have copied below 
(link also below). The point being that in 1990 when the Act was...enacted, 
if the Government had wanted to restrict the size of trees to be protected 
within area orders, then it would have done so, as it did with the Forestry 
Act in 1967 and indeed within the 1990 Act itself in terms of trees within 
Conservation Areas. 

"In the Palm Developments case, Cranston J in a careful and comprehensive 
judgment had examined this issue in some detail. He looked at a number of 
dictionary definitions of “tree” and other entities, including the definition 
of “sapling” in the New Oxford Dictionary of English: “a young tree, 
especially one with a slender trunk”. He emphasised that where in other 
legislation, such as the Forestry Act 1967, Parliament had intended a minimum 
size to apply to trees, it has done so expressly, and in addition had done so 
in the regulations about trees in conservation areas. He had attached weight 
to the fact that such provisions were absent in the case of TPOs. As a 
result, he had concluded that “saplings of whatever size are protected by a 
woodland tree preservation order”."

https://planninglawblog.blogspot.com/2015/12/what-is-tree.html 

Alastair

-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info <uktc-request@xxxxxx.tree-care.info> 
On Behalf Of Jerry Ross
Sent: 22 January 2020 08:47
To: UK Tree Care <uktc@xxxxxx.tree-care.info>
Subject: Re: Size of trees and area-basis TPO

Philip -
I agree with that it's entirely reasonable to suppose that a TO creating an 
Area TPO would be looking to protect trees of a certain size - i.e. 
those that she would ordinarily term 'trees' rather than the seedlings she's 
trampling while making her assessment.
Whether a court would accept this common sense approach or prefer the comfort 
of precedent, even where that precedent refers to a different animal 
(Woodland not Area) is another matter.


On 22/01/2020 08:10, Philip Wilson wrote:
Julian & Alastair,

Thank you for your replies. Your reading of Palm Developments is no doubt 
more critical than mine, but I understood that the judgement pertained to 
woodland-basis TPOs.

Counter-arguments to your views would seem to be that:
      (i) If a TO contemplated an 'area' with trees of variable size (for 
instance including saplings), it would be reasonable to assume (in many 
instances anyway) that the TO would protect the area with a woodland-basis 
TPO.
      (ii) The NPPG refers to 'anything that may ordinarily be termed a 
tree’ as worthy of protection, so since the Palm Developments case, if your 
views reflected a consensus, saplings or smaller trees will have been 
protected by individual-basis or group-basis TPOs. I wonder whether you can 
point to any such instance?

If not, it seems more reasonable to conclude that trees protected by an 
area-basis TPO approximated to tree size and form at time they were 
protected.

Philip


-----Original Message-----
From: uktc-request@xxxxxx.tree-care.info 
[mailto:uktc-request@xxxxxx.tree-care.info] On Behalf Of Julian Morris
Sent: 21 January 2020 13:24
To: UK Tree Care
Subject: Re: Size of trees and area-basis TPO

The last word on this seems to ahve been Palm Developments Limited v The 
Secretary of State for Communities and Local Government/Medway Council 
which lookes at anything there was up to that point on how big a tree needs 
to be. I expect the same rationale would apply to woodlands and area orders 
at the outset.

Area orders really shouldn't be used. They neither define the trees that 
were important nor protect new growth and regeneration.


Julian A. Morris - Professional Tree Services jamtrees.co.uk  and 
highhedgesscotland.com
0778 XXX XXXX - 0141 XXX XXXX


Sent: Tuesday, January 21, 2020 at 12:58 PM
From: "Philip Wilson" <philip@xxxxxx.com>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Subject: Size of trees and area-basis TPO

An area-basis TPO protects trees present when the TPO was made. 
Presumably these are conventional trees rather than 'trees of 
whatever size', as might be appropriate for woodland. As the 
definition of a conventional tree is inexact, does anyone know of a 
precedent which specifies the minimum size of tree recognized in an 
area-basis TPO at the time it was made?



Philip






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The UKTC is supported by Bosky Trees arboricultural consultancy
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