How long do planning conditions last?

[James Royston]

3 hours ago, monkeybusiness said:

I’d press the LPA for a definitive answer then personally. But that might force their hand into applying TPOs possibly...

Yeah, true.

[daltontrees]

Mynors, The Law of Trees, Forests and Hedgerows says that Government guidance is that "conditions should not be used to provide permanent protection; that is more effectively achieved using tree preservation orders..."

Edited May 7, 2021 by daltontrees

[James Royston]

11 minutes ago, daltontrees said:

Mynors, The Law of Trees, Forests and Hedgerows says that Government guidance is that "conditions should not be used to provide permanent protection; that is more effectively achieved using tree preservation orders..."

Thanks Jules. 

[daltontrees]

TAN 10 1997 is even firmer than that and says that "it is not reasonable to use conditions to secure the long terem protection when TPOs can be used."

[daltontrees]

It was the same in the 2006 edition of the TPO guidance for England.

[daltontrees]

And 2011.

[Jon Heuch]

On 06/05/2021 at 20:47, James Royston said:

I'm dealing with a site at the moment which was granted planning permission back in 2002. One of the conditions is, "(8) Trees and hedges within or on the boundary of the site shall be neither felled, topped or lopped except with the prior written approval of the Local Planning Authority, nor shall they be damaged or killed by fire or by the application of toxic or injurious substances."

 

There's no timeframe mentioned, so I was just wondering if anyone knew whether or not such a planning condition could continue in perpetuity?

There are one or possibly a few councils that have these legacy issues, know about them and indicate that you need to put in a planning application to discharge the condition. It's a planning condition and thus a fee needs to be paid. However, how the hell are you meant to find out about them if there is no means of finding out about them (short of a land charges search)?

 

Whilst it may be described as bad practice, that doesn't prevent bad practice & a planning condition is a planning condition. Breaking the condition its not the same as a TPO or CA offence because the condition needs to be seen in the context of what was allowed. Ultimately, there is quite a lot a council can do to enforce a condition. However, any damage caused needs to be put in the context of what development occurred & how valuable the vegetation was.  The condition doesn't state what the council intend to do if you do do any of the prohibited tasks. I think a lawyer would have a field day with the phrase "nor shall they be damaged or killed by fire or by the application of toxic or injurious substances". Does that mean "damaged or killed by fire" or "damaged, or killed by fire". If the former you can damage the tree anyway that you like provided you don't use fire, or toxic of injurious substances but don't fell, top or lop. i.e. nothing stopping you ring barking the trees.

 

And of course, what happens when the trees die? What are the rules then?

[James Royston]

53 minutes ago, Jon Heuch said:

There are one or possibly a few councils that have these legacy issues, know about them and indicate that you need to put in a planning application to discharge the condition. It's a planning condition and thus a fee needs to be paid. However, how the hell are you meant to find out about them if there is no means of finding out about them (short of a land charges search)?

 

Whilst it may be described as bad practice, that doesn't prevent bad practice & a planning condition is a planning condition. Breaking the condition its not the same as a TPO or CA offence because the condition needs to be seen in the context of what was allowed. Ultimately, there is quite a lot a council can do to enforce a condition. However, any damage caused needs to be put in the context of what development occurred & how valuable the vegetation was.  The condition doesn't state what the council intend to do if you do do any of the prohibited tasks. I think a lawyer would have a field day with the phrase "nor shall they be damaged or killed by fire or by the application of toxic or injurious substances". Does that mean "damaged or killed by fire" or "damaged, or killed by fire". If the former you can damage the tree anyway that you like provided you don't use fire, or toxic of injurious substances but don't fell, top or lop. i.e. nothing stopping you ring barking the trees.

 

And of course, what happens when the trees die? What are the rules then?

Thanks John, it gets even more confusing when you see the reason given for the condition - (8)  So as to ensure the protection of trees and hedges to be retained during the carrying out of 
the development, to safeguard the amenities of nearby residents and to accord with Policies NE9 
and D2 of the Unitary Development Plan.

 

[daltontrees]

On 08/05/2021 at 13:18, Jon Heuch said:

There are one or possibly a few councils that have these legacy issues, know about them and indicate that you need to put in a planning application to discharge the condition. It's a planning condition and thus a fee needs to be paid. However, how the hell are you meant to find out about them if there is no means of finding out about them (short of a land charges search)?

 

Whilst it may be described as bad practice, that doesn't prevent bad practice & a planning condition is a planning condition. Breaking the condition its not the same as a TPO or CA offence because the condition needs to be seen in the context of what was allowed. Ultimately, there is quite a lot a council can do to enforce a condition. However, any damage caused needs to be put in the context of what development occurred & how valuable the vegetation was.  The condition doesn't state what the council intend to do if you do do any of the prohibited tasks. I think a lawyer would have a field day with the phrase "nor shall they be damaged or killed by fire or by the application of toxic or injurious substances". Does that mean "damaged or killed by fire" or "damaged, or killed by fire". If the former you can damage the tree anyway that you like provided you don't use fire, or toxic of injurious substances but don't fell, top or lop. i.e. nothing stopping you ring barking the trees.

 

And of course, what happens when the trees die? What are the rules then?

The wording can only be interpreted as prohibiting 'damage', no need to infer commas.

 

The government guidance is really quite clear, conditions should not be used as substitute for TPOs. If the trees are not protected in any other way, and they were felled a decade after completion of the development and the Council tried to prosecute, it wouldn't get past their in-house lawyer never mind the CPS or the Fiscal. 

 

If it dies 20 years later, the rules are that there are no rules.

 

Trees are no different from any other controlled part of a development. As soon as development is completed all sorts of changes happen. It is not and cannot be the role of planning to preserve a completed development in amber in perpetuity.

[Jon Heuch]

2 hours ago, daltontrees said:

The government guidance is really quite clear, conditions should not be used as substitute for TPOs. If the trees are not protected in any other way, and they were felled a decade after completion of the development and the Council tried to prosecute, it wouldn't get past their in-house lawyer never mind the CPS or the Fiscal. 

There would be a few steps prior to a prosecution; firstly there would be enforcement action; the recipient could then appeal the enforcement action and PI in England would make their view known. However, on a practical level, a good tree surgeon would approach the council and ask if the trees were protected. A tree surgeon would need to see permission granted.

 

As for an appeal, add 12 months onto the process for a decision. So do you work with the council or tell the council that you know the law better than they do? Thus the problem.