Planning conditions duration

[Puffingbilly413]

Evening all,

 

This one concerns trees on development sites that are protected via stipulations in planning conditions (ie not due to TPO or being in a CA).  My question is when (if at all) do such conditions lapse or become unenforcable?  It seems to me daft that a condition designed to protect trees during development can end up meaning a tree owner can't, for example, then prune or work on their trees without LPA permission in years to come.

 

I've scanned the legislation (T&CP (Scotland) Act) and various circulars, plus done a search on here but can't find a proper answer.  How long can LPAs use planning conditions to protect trees before a TPO is required?  Is there a mechanism for getting them revoked?

 

I ask for two reasons - firstly a client is asking and I don't have the right answer.  Second, I'm tiring of searching for planning conditions (esp on recent new builds) where the tree detail is buried somewhere and often conditions were applied to plots (not the current postal address) and therefore in pin/haystack territory.  My LPA places the onus on us to search, because they have to search the same system and have neither the staff nor the time to tell us what we need to know.

 

I'm hoping Jules might have a view!

 

Cheers,

 

Ed

[monkeybusiness]

Once the houses are built/signed off (which will almost definitely have been done by the time they are sold/being lived in) the conditions no longer hold any weight, and any trees protection measures insisted upon by the planning conditions are no longer relevant. Unless TPO’d/within a conservation area you can fell the lot.

It’s bonkers, but there you go!  

[daltontrees]

monkey business has basically covered it there. I'd just add though that you need to watch out for the need for felling license  (or 'permission, as it is now officially called in Scotland) even if there are no CAs/TPOs.

 

It's a bit of a weak system. You can remove a tree before you apply for PP. You can remove it after the development is done. In theory you could even remove it while you are waiting for a planning decision (but I wouldn't recommend it). You just can't remove it after consent and before completion. There's an even stranger scenario. If you get consent but decide not to use it, you could remove a tree straight away, but this could mean that if you then changed your  mind and decided to use the consent you could have enforcement action taken against you.

 

It's not always that daft. I have come across a situation several times where a housing estate also has conditions that the developer has to put in place a mechanism for the maintenance of the open spaces. This is usually achieved by burdening all the houses with a share of the ownership and responsibility for the open spaces, and the need for a residents association. If the trees are in the common ownership areas, by rights a majority decision of the residents association is needed to allow removals. I am the chair of our RA and getting any two people to agree on anything is just about impossible. It leads to a  situation where tree removals are rare, and usually unauthorised. In effect they are protected by intransigence. As chair I only sanction removals or pruning without a majority vote  if they are a legal nuisance.

 

As I say, just watch out for the new felling permission rules. Forestry Scotland is a bit unpredictable in its tolerance and interpretation so far. I did an article in the WInter Arb Magazine that covers it all.

[Puffingbilly413]

6 minutes ago, EdwardC said:

I advise caution. The planning consent, of which the conditions are a part, does not expire on completion of the development. If it did there would be no planning consent for the development once completed. And that would be a bizarre situation.

 

Conditions regards tree protection which are worded so they have no end are bad practice, and won't meet the six tests. But as you have found they do exist.

 

Do they lapse, no. When do they become unenforceable, that's for the Courts.

 

As long as the condition is there, the local planning authority could, at least in theory, consider works to the trees as a breach of condition and pursue enforcement.

 

I'd discuss it with the planners/enforcement team.

Makes sense to me. 

 

Oh to have the opportunity for such a discussion.  Sadly, radio silence is the norm up here.

[Puffingbilly413]

3 hours ago, daltontrees said:

 

As I say, just watch out for the new felling permission rules. Forestry Scotland is a bit unpredictable in its tolerance and interpretation so far. I did an article in the WInter Arb Magazine that covers it all.

Jules,

 

This one has got me a tad confused now.  It used to be the case that private gardens didn't require permission for felling (TPO, CA and planning conditions aside).  But reading the new legislation I can't find any reference to gardens being exempt (and you don't mention it in your article either). 

 

Have I and most of the other tree firms up here been taking trees down illegally for the last 12 months?!

 

Ed

 

 

[Puffingbilly413]

15 minutes ago, Puffingbilly413 said:

Jules,

 

This one has got me a tad confused now.  It used to be the case that private gardens didn't require permission for felling (TPO, CA and planning conditions aside).  But reading the new legislation I can't find any reference to gardens being exempt (and you don't mention it in your article either). 

 

Have I and most of the other tree firms up here been taking trees down illegally for the last 12 months?!

 

Ed

 

 

Ah - I hadn't realised the exemption detail was contained in The Forestry (Exemptions) (Scotland) Regulations 2019.  Scottish Forestry also have a guide which is useful.  It seems that a private garden is still exempt then.  Who decides what constitutes a garden under the new rules though?

[daltontrees]

Same as under the old rules, i.e. it's not defined. Trees which are technically part of the curtilege of a dwelling but would also come under the generally understood meaning of woodland would not be exempt. Also the last Reg 6 removes the garden exemption if it's a small woodland and of certain species.

There have been and will continue to be grey areas. Individual ornamental species closest to and most intimately adjacent to a house are clearly exempt, but the farther away you get, the denser the trees, the more native then the less obvious the garden argument is. It wouldn't be too hard to systematically remove a lot of trees by using combinations of quarterly allowances and garden exemptions, but is needed because one big broadleaf will give no change out of 5 tonnes and if it's deemed too remote to be part of the garden it could be an offence to remove a second one at the same time.

I've had and still have some borderline cases, but the underlying purpose of the Act is not clear enough to say what public interest there is in preventing private householders doing with their trees whatever they see fit.

Parliament snuck the Regulations through with minimal consultation and ignored warnings in what consultation they did do. I personally wrote to the Minister about a couple of howlers in the draft Regs but he did precisely nothing about it. This is quite typical of the Scottish Parliament.

Who decides what's a garden? A sheriff court initially. I wouldn't ask SF, it has no greater right or insight than anyone else to be able to decide.

[Puffingbilly413]

Interesting.  I've certainly had a few examples recently where, although clearly still within a garden, small woodland would also be an accurate description.  They would also not have been able to claim the 5 cube exemption due to their small size.

 

Thanks for your comments - I've been operating under a few slight misconceptions of late when is a garden no longer a garden and will be more circumspect from now on. 

[kevinjohnsonmbe]

On 29/02/2020 at 11:53, EdwardC said:

I advise caution. The planning consent, of which the conditions are a part, does not expire on completion of the development. If it did there would be no planning consent for the development once completed. And that would be a bizarre situation.

 

Conditions regards tree protection which are worded so they have no end are bad practice, and won't meet the six tests. But as you have found they do exist.

 

Do they lapse, no. When do they become unenforceable, that's for the Courts.

 

As long as the condition is there, the local planning authority could, at least in theory, consider works to the trees as a breach of condition and pursue enforcement.

 

I'd discuss it with the planners/enforcement team.

(Scotland / England & Wales variations aside) I agree with Ed's position.  One thing that might be particularly relevant for 'the cutter' though....

 

My "friend's" understanding, having tried to get an answer to this previously, is that the planning conditions (and any penalties / enforcement that may follow a breach) unlike TPO / CA breaches, would apply wholly and exclusively to the land / tree owner rather than the person engaged to remove the tree.

 

So, if the tree owner is aware of planning conditions, and instructs the contractor to continue regardless, any potential investigation / enforcement would sit wholly and exclusively with the land owner with no criticism or culpability applicable to the contractor. 

 

That's as close to an answer as "my friend" could get when "they" found myself in exactly that situation....  The tree owner knew of the existence of planning restrictions, he told "my friend", "they" checked for any TPO/CA scenarios which "they" might be liable for, the tree owner gave "them" written instruction to carry on as specified.  There's no liability on "them"....  

 

Not really an answer but maybe a potential solution to the problem....?