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

[Puffingbilly413]

2 hours ago, kevinjohnsonmbe said:

 

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

I check for the existence of all three of TPO, CA and planning conditions (esp new builds - even well established ones) as I quote for any works. Can't trust the client to know (or care).

 

Had at least one where conditions were still in place after a private new build had long since been completed and signed off. Council was insisting they were still extant even though their own wording suggested not. Took involvement of the client's solicitor to get it sorted.

[kevinjohnsonmbe]

52 minutes ago, AA Teccie (Paul) said:

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 

Hi Paul!

 

my reference to 20-30 years was in relation to a (local example) of an ATPO initiated shortly after a residential development decades ago.  Bit of a red herring since I was referring to the implementation of (an inappropriate TPO (area as it turned out and still not updated to individual of group)) after a residential development.  Forget that bit as not important.  Yes, agreed conditions timex according to the circumstances.

 

The key question, from the info as is available, would be is there a PC and does it apply to the homeowner as distinct from the development site owner.

 

Well, I'd suggest that the very existence of a PC could be challenged for its applicability and enforceability since, if it does exist, it could easily be argued that it partially fails the first test (necessary) since it is no longer necessary to prohibit the developer from undertaking works upon land upon which they don't own the title, it could fail the fourth test (enforceable) - I guess it 'could' be enforceable but unlikely to pass the public interest test, it would certainly fail the fifth test (precise) since it already seems to have created confusion, and finally it would fail the Sixth test (reasonable in all other respects) since it is patently unreasonable to expect the new homeowner to not work on his trees until the developer has completed the entire project - that could potentially take years or indeed never reach full completion.

 

What I'm trying to show there is that, in so far as we know - and it's not enough at this stage - even if a PC exists, it seems to be a particularly poor one in relation to the dotgov guidance on PCs since the condition was likely put in place to prevent developer over exuberance in close proximity to trees and was unlikely to ever have been intended to 'control' individual residents.

 

"...It is important to ensure that conditions are tailored to tackle specific problems, rather than standardised or used to impose broad unnecessary controls..."

 

Use of planning conditions - GOV.UK

WWW.GOV.UK

---

Explains how conditions attached to a planning permission should be used and discharged effectively

 

 

Edited August 24, 2022 by kevinjohnsonmbe

[daltontrees]

4 hours ago, kevinjohnsonmbe said:

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.

Wow, you're really getting into this. Yes there is a lot of inconsistency coming from Councils, but one has to take it as one finds it.

 

A houseowner could apply to discharge a condition as it relates to just his house. The Council could compeltently discharge it. Whether the house owner can implement the discharge is a different matter, it may be a matter of contract with the developer. 

 

Even if a person bought from a developer and wasn't specificalyy told about planning conditions, missives would invariably throw it back to the buyer to satisfy themselves, and in turn the buyer's solicitor would to a property enquiry with the Council which would throw up the permission, but probably not the specific conditions. The buyer generally would be expected to check. I can't ser the developer being in breach for non disclosure.

 

You raise a strange paradox about self abatement. I don't think that self abatement is a lawful option until the whole development is completed but I have in the past advised house buyers that enforcement and prosecution would be highly unlikely as long as their bit of the developent is complete and the threat of construction damage to their trees is past. This seems correct in some situations, but not all, amnd I wouldn't advise it generally. And as I speculated in a recent posts about enforcement, there seems to be no mechanism for meaningful penalties for one-off tree breaches.  

[daltontrees]

2 hours ago, Puffingbilly413 said:

I check for the existence of all three of TPO, CA and planning conditions (esp new builds - even well established ones) as I quote for any works. Can't trust the client to know (or care).

 

Had at least one where conditions were still in place after a private new build had long since been completed and signed off. Council was insisting they were still extant even though their own wording suggested not. Took involvement of the client's solicitor to get it sorted.

In such situations it is appropriate I think to point out that the written government guidance is that planning conditions should not be used for the long term protection of trees.

[daltontrees]

2 hours ago, kevinjohnsonmbe said:

Hi Paul!

 

my reference to 20-30 years was in relation to a (local example) of an ATPO initiated shortly after a residential development decades ago.  Bit of a red herring since I was referring to the implementation of (an inappropriate TPO (area as it turned out and still not updated to individual of group)) after a residential development.  Forget that bit as not important.  Yes, agreed conditions timex according to the circumstances.

 

The key question, from the info as is available, would be is there a PC and does it apply to the homeowner as distinct from the development site owner.

 

Well, I'd suggest that the very existence of a PC could be challenged for its applicability and enforceability since, if it does exist, it could easily be argued that it partially fails the first test (necessary) since it is no longer necessary to prohibit the developer from undertaking works upon land upon which they don't own the title, it could fail the fourth test (enforceable) - I guess it 'could' be enforceable but unlikely to pass the public interest test, it would certainly fail the fifth test (precise) since it already seems to have created confusion, and finally it would fail the Sixth test (reasonable in all other respects) since it is patently unreasonable to expect the new homeowner to not work on his trees until the developer has completed the entire project - that could potentially take years or indeed never reach full completion.

 

What I'm trying to show there is that, in so far as we know - and it's not enough at this stage - even if a PC exists, it seems to be a particularly poor one in relation to the dotgov guidance on PCs since the condition was likely put in place to prevent developer over exuberance in close proximity to trees and was unlikely to ever have been intended to 'control' individual residents.

 

"...It is important to ensure that conditions are tailored to tackle specific problems, rather than standardised or used to impose broad unnecessary controls..."

 

Use of planning conditions - GOV.UK

WWW.GOV.UK

---

Explains how conditions attached to a planning permission should be used and discharged effectively

 

 

I dpn't know what it's liek in England, but up here Councils are using conditions to protect trees under the justification of habitat protection. Currently I have one where the tree removal is not being allowed because the tree is contributing to climate stabilisation. Recently I had a TPO imposed to protect habitat, which is not a lawful use of TPO. The overall sense is that it's all a bit out of control. A bit more than usual, that is.

 

[kevinjohnsonmbe]

57 minutes ago, daltontrees said:

I dpn't know what it's liek in England, but up here Councils are using conditions to protect trees under the justification of habitat protection. Currently I have one where the tree removal is not being allowed because the tree is contributing to climate stabilisation. Recently I had a TPO imposed to protect habitat, which is not a lawful use of TPO. The overall sense is that it's all a bit out of control. A bit more than usual, that is.

 

Definitely agree!

 

There appears to be a groundswell of over confidence resulting in over-stepping the mark (where it is thought it will go unchallenged) by certain elements within LA - and I am sure (and unofficially assured from elements within LA) that forestry and environmental departments are behaving with a strange new vigour perhaps associated with the various national / international tree initiatives that are en vogue.

 

A notable personal example would be the initiation of a WTPO on an area that they hadn't even visited because neighbours claimed there was a potential for development.  A comprehensive counter argument resulted in the provisional WTPO not being confirmed but it was, despite being completely inappropriate for the site, touch and go for a while!  

 

Crazy times indeed±

 

 

[kevinjohnsonmbe]

1 hour ago, daltontrees said:

You raise a strange paradox about self abatement. I don't think that self abatement is a lawful option until the whole development is completed but I have in the past advised house buyers that enforcement and prosecution would be highly unlikely as long as their bit of the developent is complete and the threat of construction damage to their trees is past.

Ah, I wouldn't take the completion of the whole development to be a go/no go factor in validating the self abatement - I would consider the rest of the development, and any conditions that may apply to it, to be subservient to the right to self abate.  Granted, the likelihood of a genuine need for abatement of an AN is pretty slim, but if it did exist I think it would trump PC.

 

The realistic threat of enforcement / prosecution is, as you say, tiny - I watch the county wide enforcement for general planning matters quite keenly, it's a bit like the Carlsberg complaints office, the phone just rings out 🤣

[Dan Maynard]

6 hours ago, kevinjohnsonmbe said:

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.   

I've got a customer with one of these at the moment, same TPO number on multiple trees across the estate. Giant sycamore happens to be the one in her garden, she hates it but stuck with it.

[kevinjohnsonmbe]

29 minutes ago, Dan Maynard said:

I've got a customer with one of these at the moment, same TPO number on multiple trees across the estate. Giant sycamore happens to be the one in her garden, she hates it but stuck with it.

Is it an area TPO Dan?  The TPO regs place a recommendation upon LA to review their TPOs - especially long standing area  TPOs (recommendation rather than requirement.)  

 

Local Government Ombudsman finding "Report on an investigation into complaint no 06/B/16269 against Fareham Borough Council 31 March 2008" also affirms at para 59 - 61 the government guidance and is critical of that LA for failure to update old ATPOs.

 

Edited August 24, 2022 by kevinjohnsonmbe

[Dan Maynard]

7 minutes ago, kevinjohnsonmbe said:

Is it an area TPO Dan?  The TPO regs place a recommendation upon LA to review their TPOs - especially long standing area  TPOs (recommendation rather than requirement.)  

 

Local Government Ombudsman finding "Report on an investigation into complaint no 06/B/16269 against Fareham Borough Council 31 March 2008" also affirms at para 59 - 61 the government guidance and is critical of that LA for failure to update old ATPOs.

 

No sadly it's just when you look at the TPO map there are multiple tree spots with the same TPO number. Seems it was a farm before development, looks like they went round with tree labels and listed them all out as each one has tree species and label different.