Overriding Justification within BS 5837

[Gary Prentice]

20 minutes ago, EdwardC said:

Non-compliance with planning conditions is not the fault of the LPA arising through a lack of enforcement. Non-compliance with conditions is entirely the fault of the developer who should implement the development in accordance with the consent. Policing/enforcement comes after the failure to comply, it does not cause the failure to comply in the first place.

 

Planning enforcement is another area that has been hit hard by 'austerity'. It is discretionary and therefore seen as an easy target for cuts. All LPA's should have a planning enforcement policy. This will set out the LPA's priorities when it comes to taking action. Some priorities are lower than others, and that is just a way of justifying taking no action, so saving time and money.

Good morning Edward, I don't know why but for some reason we seem to be  polar opposite on a lot of subjects. 

 

No argument from me that the developer/applicant should abide by the conditions, but experience says otherwise and mine, over the last thirty years, is that compliance is the exception rather than then the rule. Others experience may differ. And, this isn't on single dwelling applications only, the largest house builders are often the same. 

 

Austerity gets blamed for a lot, but I don't believe this a new issue. I've witnessed it as I've said over three decades and in many different parts of the country. I'n not sure that being cash strapped prevents enforcement and suspect general apathy on the part of the planning department/legal department is often to blame.

 

"Policing/enforcement comes after the failure to comply, it does not cause the failure to comply in the first place." Or, lack of policing/enforcement creates a culture where the developer sees no requirement to comply? If there is no fear of punishment or consequences, lawlessness (for want of a better word) ensues. 

 

Don't get me wrong Edward, I'd like to see change. I'm writing a survey, AMS and AIS today in the knowledge that, more than likely, it's a paper exercise and pointless. The only real objective is to achieve planning consent and tick boxes on both the developers and PA's part.

 

I suppose if nothing else it pays the mortgage.  

[kevinjohnsonmbe]

22 hours ago, Gary Prentice said:

Disregarding conditions can have consequences

Could we change "can" for "might" Gary...?

On 20 October 2017 at 22:39, EdwardC said:

And the vast majority never read past 'Consent is granted...'

Totally agree, from that point onwards it's all about profit!

22 hours ago, Gary Prentice said:

but the very people who are in place to police the conditions don't

Totally agree!  Since becoming a parish councillor back in June I've been copied in on the county wide planning enforcement cases opened and concluded.  It makes for a really interesting (rather depressing) read on many levels.  If I were to sum up my impression of that part of the system, from what I've seen to date, I'd say - if you're a developer, do what you want once you've got your consent because there is no capacity, will or appetite to 'police' or punish non-compliance.  Except in the most high profile or blatant disregard of conditions, by the time the unwieldy, ineffective, pedestrian wheels of bureaucracy have ground slowly into motion the transgression, which has probably resulted in considerable cost saving, has been undertaken and partially / sufficiently remediated to avoid direct intervention by the LA.  

22 hours ago, Gary Prentice said:

I include tasks that require arboricultural supervision or input during the construction phases.

As per the recommended formats.  How often are you actually called back to the site to implement the 'supervision' and assessment of TPS etc though Gary?  I have found that it is like a box ticking exercise, the AIA, AMS, TPS are submitted (including reference (and costing / billing) to return visits at key points, the plan is consented, the bill is paid for the survey, submissions and subsequent site visits - and there never follows the call to revisit the site at key points.  I've even sent reminders and not been called forward. 

22 hours ago, Gary Prentice said:

Personally, I do blame the planning authority.

Is it austerity?  Is it overwork?  Is it lack of determination / professionalism (maybe it's not just the arb industry that struggles to find and retain motivated and dedicated employees?)  Is it a case of prioritising the most important?  Or.....  Is it over regulation in the first place?  Or a combination of all of the above?

1 hour ago, EdwardC said:

Non-compliance with conditions is entirely the fault of the developer who should implement the development in accordance with the consent.

Agreed.  For the record, I never exceed the speed limit.....    Well, sometimes I do, but only after I've made an assessment of the benefit derived from going a bit faster in relation to the probability of (a) getting caught and (b) any potential adverse implications in relation to the perceived benefits.

 

Edited October 22, 2017 by kevinjohnsonmbe

[Gary Prentice]

6 minutes ago, kevinjohnsonmbe said:

 

As per the recommended formats.  How often are you actually called back to the site to implement the 'supervision' and assessment of TPS etc though Gary?  NEVER!

 

I have found that it is like a box ticking exercise, the AIA, AMS, TPS are submitted (including reference (and costing / billing) to return visits at key points, the plan is consented, the bill is paid for the survey, submissions and subsequent site visits - and there never follows the call to revisit the site at key points.  I've even sent reminders and not been called forward. 

 

Is it austerity?  Is it overwork?  Is it lack of determination / professionalism (maybe it's not just the arb industry that struggles to find and retain motivated and dedicated employees?)  Is it a case of prioritising the most important?  Or.....  Is it over regulation in the first place?  Or a combination of all of the above? All of the above. The problem her though, is that we're 'treecentric', it's 'our' industry and generally we recognize and acknowledge the importance of trees. Do we overestimate this trait in others and then wonder why they don't share our indignation and desire to put things right?

 

Agreed.  For the record, I never exceed the speed limit.....    Well, sometimes I do, but only after I've made an assessment of the benefit derived from going a bit faster in relation to the probability of (a) getting caught and (b) any potential adverse implications in relation to the perceived benefits.

 

 

[kevinjohnsonmbe]

50 minutes ago, Gary Prentice said:

 

 

50 minutes ago, Gary Prentice said:

NEVER!

I was going to press the 'like' button, but that's not quite right.  The box is ticked, everyone moves on...  Sad really.

[Gary Prentice]

1 minute ago, kevinjohnsonmbe said:

 

I was going to press the 'like' button, but that's not quite right.  The box is ticked, everyone moves on...  Sad really.

Playing devil's advocate.

 

If the developer adheres to the AMS, then the AC has to visit and sign off particular stages. I'd imagine that there would be some be difficulty for the 'Project Arboriculturist' to remain totally objective ( if he/she wants to work for that company again) when things aren't as they should be. 

 

I don't know if there are any fees involved for the councils building inspectors site visitors, but maybe there's an opportunity for the TO to visit site to undertake these tasks, paid for by the developer? Or an independent Arb Consultant, with no other interest in the project selected by the LA. 

 

Sad? Frustrating more like, as it's readily apparent that the system isn't working effectively and, IMO, no-one really cares.

[StudioS]

Whilst I appreciate the comments and feedback on the scheme, I am yet to receive an answer to my original question...

 

On 10/18/2017 at 22:09, StudioS said:

1. Does anyone know of any examples of an overriding justification that has allowed construction within the RPA?

 

 

[daltontrees]

I realise where you're coming from now, having addressed the generalities on this question recently on UKTC. So my answer is, 'yes'. Indeed, lots and lots of examples. To recap, the 5837 context is that structures should be "located outside the RPAs of trees to be retained. However, where there is an overriding justification for construction within the RPA, technical solutions might be available that prevent damage to the tree(s)... If operations within the RPA are proposed, the project arboriculturist should a) demonstrate that the tree(s) can remain viable and that the area lost to encroachment can be compensated for elsewhere, contiguous with its RPA; b) propose a series of mitigation measures to improve the soil environment that is used by the tree for growth."

 

And as I said before, It seems to me that it is for the designer to justify incursions and for the arb to say that the consequences for the tree are or could be OK. But this is not law, nor is it planning policy, unless the Council has said that it will apply BS5837 literally and inflexibly in all cases. Which it can never say, because 5837 is not a public instrument.

 

So, the numerous examples I know of involve an overriding justification of "if those trees are being kept, the development can't be built unless it encroaches on the RPAs." It's a very simple justification by the client and designer. It's then for the planning authority, if there is an application, to decide whether that is acceptable in planning terms.

 

The question is then, are the trees important for the amenity of the area (TPOable) or for the context of the development? And if the answer is yes, the Council could justifiably refuse the application unless the arboriculturist has demonstrated that the trees would be OK.

I hope it's clearer now. The designer can easily justify encroachment on an RPA by saying that the project won't be possible otherwise. The Council has to apply a different set of tests that are largely about public amenity and are nothing to do with the designer's criteria.

 

So do I know examples of applications that have gone in that involve encroachment into the RPA of trees that the client isn't proposing to remove? Lots and lots. Examples of where the Council has then approved the application anyway because it did not value the trees for public amenity? Almost as many. And a few where it has approved subject to conditions about root protection, without having asked for a tree report up-front.

 

In your case, if the Council has already said that it values the trees and would refuse an application that damaged them to an unacceptable degree, then it's a straight conflict between designer justification for encroachment (it's that or else nothing) and Council justification for refusal (preservation of public amenity). Does one override the other? Don't look to 5837 to answer that, because it doesn't. It doesn't even try, nor should it, because it's about trees not about planning policy.