No TPO/CA/SSSI Council Refusal of Reduction for Planning Conditions.

[Arb-Aero]

Rear of garden on a boundary to B-road is a hedgerow of now mature trees.

 

The house is a newly built house of a year, on a part built estate. There is legislation on them! apart from planning condition -

 

Tree Officer statement -

 

Technically the trees here are protected under a Planning Condition that was in place when the original planning approval was granted. The developer said he would retain the trees as per a tree protection plan submitted. That condition will apply until the whole development is complete. Once formally completed (and the road adopted by the council etc) then the condition will no longer apply and the trees become unprotected.

 

I've applied to have the spindly elm trees thinned out (3 trees 20cm ash) and the semi-mature sycamore to be thinned by 20% and was refused and if I do the work would be liable!

 

The trees are on the customers property and are as high as the garden is long from the house and is a west facing garden.

 

Any ideas on this legality please?

[Stubby]

10 minutes ago, Arb-Aero said:

Rear of garden on a boundary to B-road is a hedgerow of now mature trees.

 

The house is a newly built house of a year, on a part built estate. There is legislation on them! apart from planning condition -

 

Tree Officer statement -

 

Technically the trees here are protected under a Planning Condition that was in place when the original planning approval was granted. The developer said he would retain the trees as per a tree protection plan submitted. That condition will apply until the whole development is complete. Once formally completed (and the road adopted by the council etc) then the condition will no longer apply and the trees become unprotected.

 

I've applied to have the spindly elm trees thinned out (3 trees 20cm ash) and the semi-mature sycamore to be thinned by 20% and was refused and if I do the work would be liable!

 

The trees are on the customers property and are as high as the garden is long from the house and is a west facing garden.

 

Any ideas on this legality please?

Yes . Heard of this exactly before . You will have to wait until the development is complete as far as I know .

[rapalaman]

Similar on a new build at the back of me - tpo put on a spindly sycamore that the builders had rammed with their digger trying to uproot it. Had to wait 5 years after the development was finished before anything could be done to it. By then it had grown into a 45ft monstrosity in a tiny garden - five years and one week later they got us to remove 👍

[kevinjohnsonmbe]

4 hours ago, Arb-Aero said:

Rear of garden on a boundary to B-road is a hedgerow of now mature trees.

 

The house is a newly built house of a year, on a part built estate. There is legislation on them! apart from planning condition -

 

Tree Officer statement -

 

Technically the trees here are protected under a Planning Condition that was in place when the original planning approval was granted. The developer said he would retain the trees as per a tree protection plan submitted. That condition will apply until the whole development is complete. Once formally completed (and the road adopted by the council etc) then the condition will no longer apply and the trees become unprotected.

 

I've applied to have the spindly elm trees thinned out (3 trees 20cm ash) and the semi-mature sycamore to be thinned by 20% and was refused and if I do the work would be liable!

 

The trees are on the customers property and are as high as the garden is long from the house and is a west facing garden.

 

Any ideas on this legality please?

Do you mean to say "there is no legislation on them apart from planning condition?

 

You do say the house is a year after build on a part completed site - right?

 

So this house is in private ownership and no longer owned by the developer?

 

So the new owner of the house was not the planning applicant that sought and received conditional planning consent - right?

 

Why did the current owner ask you to seek 'consent' from LA if there are no TPO / CA restrictions in effect?

 

What did you ask LA for 'consent?'

 

What the house owner needs to establish is - does the conditional planning approval bind them to the condition placed upon the developer of the whole site.

 

If not, then the condition cannot be imposed upon the person that has bought the land after the grant of consent.

 

Your post doesn't make clear the relationship (if there even is one) between the homeowner and the developer.  Are they entirely separate entities?

 

Your homeowner needs to seek proper legal advice about whether the condition is even applicable to them.

 

There is not enough info to properly understand the situation.

[woody paul]

Had similar on a site earlier this year, plans past for house to be built then customer wanted 2 large conifer took down. As the were not listed on landscape architect plan but in concavation area applied to take them down with not trouble at all from tree officer. 

So your trees must of appeared on landscape plan so that's why you can't touch them. 

[monkeybusiness]

Do the trees belong to the house or the developer? 

[petercb]

Apply to council for variation to the planning condition.

[daltontrees]

Planning conditions run with land, not with ownership. So in the described situation the conditions prevent tree removal until the conditions of the whole consent are discharged by completion of the whole development.

 

Unless varied on application.

[kevinjohnsonmbe]

1 hour ago, daltontrees said:

Planning conditions run with land, not with ownership. So in the described situation the conditions prevent tree removal until the conditions of the whole consent are discharged by completion of the whole development.

 

Unless varied on application.

Interestingly, that is why I said the homeowner needs to seek professional conveyancing advice and that the original post [as ever] lacked sufficient detail.

 

"If" the purchasor's legal representative didn't inform the purchaser of a live covenant [in the form of a planning condition], in this case tree retention - or any other which might apply to the entire development site - then there could be a claim for dereliction of duty.

 

Maybe the the homeowner is aware of the restrictive covenant[s] but chose not to inform the prospective tree cutter.  But then why would the cutter 'seek consent?'  Doesn't add up.

 

So the parts that don't seem to 'ring true', if, as has been stated [I think, subject to confirmation of the potential typo] there are no CA / TPO protections in place, why would the contractor seek consent from LA unless the homeowner told them there was a planning condition?  If the homeowner told the contractor there was a planning condition then they must have known about it.

 

Whilst a planning condition may remain with the land through successive ownership - for example a removal of PD rights - this is slightly different, if the available detail is to be taken at face value.  

 

It might reasonably be presumed that the TPP applies to the developer and is discharged at the completion of the development at which point any tree not subjected to subsequent protection is open season unless TPO'd at that stage - I've just dealt with precisely this scenario albeit 30 years after the Area (6 months?) TPO was initiated after an estate development.

 

If a new landowner buys a plot on the development they may or may not be bound by the terms of the sale to comply with extant planning conditions which apply to the entire site and were imposed as a condition of granting consent for the entire development but at what threat of penalty if they don't?  

 

I guess it's possible penalty clauses might be included in an estate house sale particulars but is that likely?  Who knows?  I've never bought an estate house.

 

And regardless of conditions, the homeowner still has the right of self abatement which over-rides a planning condition even if it was enforceable.

 

I presume [from observation of way too many med - large scale developments that have had ridiculous, short sighted, poorly motivated inappropriate tree retention plans] that the real 'problem' here is an LA seeking to retain trees [whilst they still have some degree of control] which should never actually be retained if the development is going to go ahead anyway.  This is so common in former agricultural land with field boundary trees which were perfectly well suited to their agricultural environment - including future growth potential - but very soon become oppressive and inappropriate in a domestic development setting.

 

The tokenism of retaining inappropriate tree[s] in inappropriate location[s] runs strong in LAs that seek to retain and exert inappropriate degrees of 'control' and invariably leads to a 20-30 year investment in a greater problem down the line as those inappropriately retained trees have far and away exceeded the domestic residential environment they were retained within.   

 

The root cause of the problem is schizophrenic LAs - on the one hand they have planners obliged to approve development proposals to meet housing targets imposed by central government at risk of costly over ruling at appeal and on the other hand, they have TOs seeking to retain, and enforce by condition,  inappropriate tree stock.

 

You can't please all of the people all of the time!  But you can take care that the 'compromise' doesn't end up being a curse on everyone's house. 

 

 

[AA Teccie (Paul)]

Hi Kevin, 

 

I'm not quite sure where my small contribution here fits into your expansive post but if the planning condition (PC) is such that it expires (discharges) on completion of the development one would hope it would be relatively short-term (not 20-30 years, hopefully.)

 

Also, my understanding is that PCs are unlikely to be enforceable after 10 years and the guidance is such that if the intention of the LPA is to retain trees long term the TPO is the correct mechanism for doing so, not the PC.

 

My view of PCs in this situation is that they are imposed to almost screen the development during the construction process as they often involve peripheral trees and hedges.

 

The TO stance / response seems reasonable and if the OP is considering undertaking works as described he would be well advised to seek detailed advice prior.

 

Cheers, n hope you're well.

Paul