Legal Protection of Street Trees

[zil]

HI - 2 QUESTIONS about street trees poorly maintained by contractors on behalf of a local authourity .

 

NB I am aware that - since 11/23  S115 Environmental Act 2021 English LA's were under a statutory duty - where no exemptions apply -  not to fell street trees without any public consultation

BUT are there any means to make the LA responsible  and/or require public consultation for works to the trees  that go short of felling -  e.g. by other means?

In particular : 

Q. In English LA Conservation areas ? are street trees protected? What is the legal positon vis a vis  street trees and any works to them ? 

Q. Can street trees  be made subject to TPOs? 

 

Thanks 
 

[AA Teccie (Paul)]

15 hours ago, zil said:

HI - 2 QUESTIONS about street trees poorly maintained by contractors on behalf of a local authourity 

In particular : 

Q. In English LA Conservation areas ? are street trees protected? What is the legal positon vis a vis  street trees and any works to them ? 

NO - LA trees are effectively deemed to be under good arboricultural management and hence should not need protection* 

 

15 hours ago, zil said:

Q. Can street trees  be made subject to TPOs? 

YES - LA trees can be TPO'd - IME done where there is likely 3rd party harm, e.g. neighbours (residents) and contractors (highways / utilities etc - often more as a deterrent as may be exempt.)  
 

 

[daltontrees]

I have to disagree with Paul, street trees in CAs in England are protected. There might be a presumption that they are under good management, but that is not enough. As was found in McClellan v Lambeth 2014, the proposed removal of a tree owned by the Council in a CA was criticised because the Council had not considered its importance in a planning sense.

Edited August 5 by daltontrees

[Dan Maynard]

Is LA what I'd take to be District Council, ie the planning authority? Where I've done work for Parish Council in conservation area I have always assumed that needed to be notified.

[daltontrees]

2 hours ago, Dan Maynard said:

Is LA what I'd take to be District Council, ie the planning authority? Where I've done work for Parish Council in conservation area I have always assumed that needed to be notified.

The authority wielding power under the planning acts, generally known as the Local Planning Authority, has the duty to enforce CA restrictions. I don't know how English local government works, in Scotland we have unitary authorities that do everything that counties, boroughs, parishes etc do down south. 

 

The obligation to consult on street trees applies to the 'local highway authority' whatever that is (England only). So, the planning authority may or may not be the same as the highway authority. If it isn't, I cannot see how there is any argument whatsoever that highway authorities are exempt from CA controls.

[AA Teccie (Paul)]

21 hours ago, daltontrees said:

I have to disagree with Paul, street trees in CAs in England are protected. There might be a presumption that they are under good management, but that is not enough. As was found in McClellan v Lambeth 2014, the proposed removal of a tree owned by the Council in a CA was criticised because the Council had not considered its importance in a planning sense.

Thank you Jules, and technically you are correct (my apologies) however my reply was 'in context' with the OP relating to works by the LA ('my interpretation') and taking into account the guidance (as below - first bullet point):

 

[daltontrees]

The legislation exempts the 'local planning authority', as shown in the guidance too. But what McClellan v Lambeth showed was that the exemption was not free rein by a Council to do whatever it wants under different departments and legislation.

 

I suppose the way to see it is that the planning authority is exempt on the presumption that internally the authority has had the opportunity to consider the effect of the removal on the amenity and special cahracter of the conservation area. But in McClellan the decision to remove CA trees was made by Cabinet and not planning committee and there was no record of the planning department having been asked if it was OK. Therefore it was an abuse of the presumption. The court decided that if the planning authority had been asked there might have been (not necessarily would have been) a different decision.

 

I think it's best to assume that the requirement to consult with the public is definitely not trumped by the CA exemption and that the highways authority should at least internally notify the planning authority (if it is the same Council) and must notify it externally (s.211) if it is not the same Council.