Another TPO/CA hypothetical question

[daltontrees]

The most recent Government Guidelines say this about the grounds for making a TPO -

"The Act does not define 'amenity', nor does it prescribe the circumstances in which it is in the interests of amenity to make a TPO. In the Secretary of State's view, TPOs should be used to protect selected trees and woodlands if their removal would have a significant impact on the local environment and its enjoyment by the public. LPAs should be able to show that a reasonable degree of public benefit would accrue before TPOs are made or confirmed. The trees, or at least part of them, should therefore normally be visible from a public place, such as a road or footpath, although, exceptionally, the inclusion of other trees may be justified."

In the section about Conservation Areas, the Guidelines say that if a TPO is being considered as a response to a Conservation Area notice -

"Special attention must be paid to the desirability of preserving the character or appearance of the conservation area."

The first question is, if all the trees in a CA are provisionally protected by the CA status, what co-incidence (if any) is there between them contributing to the character or appearance of the conservation area and their preservation for the local environment and its enjoyment by the public. To put it in a practical way, are trees that get in the way of the public's view of architecture or history not a detraction from a Conservation Area? For all that they are provisionally protected, once a TPO is proposed the test switches from the CA definition of special historic or architectural interest to the TPO definition of amenity interest.

The second question is, if a tree in a CA cannot be seen from any public space but can be seen and enjoyed by the other residents in the context that the original architects of the area had intended, is the SoS's guidance the correct interpretation of the Acts or should TPOs also be exerciseable to protect trees against loss of amenity for the residents of the area?

I have a particular case reason for asking these questions but I would be more interested in peoples' views on the more general principles. Sorry if it's a bit heavy but I have I hope distilled it down to the bare minimum.

Final point, the law in Scotland is different in a way that might make the first question unnecessary. If anyone wants to know why, please ask.

[Amelanchier]

How is it different?

 

1st Question: I'd agree that a tree that detracts from a CA should not be protected to ensure it continues to detract. However, one might serve an Order to ensure its replacement (arguably a poor reason but a reason neverthless). The definition of amenity justifying the TPO should be framed in the specific instance within which it is found (i.e., the conservation area appraisal / situation). I can't see any reason why an LPA can't explain themselves in explicit detail when justifying an Order but unfortunatley the typical approach is to use vague template text.

 

2nd Question - Are the residents not members of the public in any case?

[daltontrees]

Q1. The difference arises from the justification for a CA and the justification for a TPO coming from 2 separate Acts with 2 separate wordings. One is architectural and historic interest, the other is amenity interest. There's not a word in common between the definitions. The guidance takes them further apart, the definition of amenity which (probably wisely) was omitted from the Act is shaped by measuring amenity through whether it would be missed if it was gone. The LA cannot lawfully use conservation area justifications for a TPO, even if the existence of trees was part of its thinking (rightly or wrongly) when the CA was made.

Q2. The guidance says "The trees, or at least part of them, should therefore normally be visible from a public place, such as a road or footpath". The residents may well be members of the public, but not according to the guidance. A few of them see the CA from the inside for long periods, many of the public see the CA from the outside for short periods.

[daltontrees]

The Scottish difference is that through legislation in 2006 it became possible for Planning Authorities to make TPOS if trees are of 'historic or cultural' significance. This aligns the justification almost exactly with the 'architectural or historic' grounds for a CA. Down south you have no such sophistication of your principal Act.

[Amelanchier]

Q1. I see what you are saying, but s72(1) creates a duty for the LPA to pay "special attention"..."to the desirability of preserving or enhancing the character or appearance of that area" in exercising any functions of the planning acts. So the creation of a CA must be justified on architectural or historic interest but a TPO can be instrumental in preserving its character or appearance. Vague as you like though.

 

Q2. The key word there is 'normally' surely. The essence is that it can be seen and presumably that you'd need an equally good reason to protect it if it can't be seen. The guidance is on the short list for "streamlining" in the latest Taylor review so we may just end up with a blue book coaster or keyring...

[Amelanchier]

Down south you have no such sophistication of your principal Act.

 

We had something similar in the 2008 Draft Heritage Bill but that got binned because of the global financial apocalypse. Presumably because Whitehall wanted us to know that they were taking the credit crunch very seriously and if we had heard that they were wasting time improving heritage protection we'd all be grabbing our pitchforks and marching on the capital. Sigh.

[daltontrees]

Thank you for indulging me, this has been helpful and better than trying to resolve things in the heat of battle. So....

Q1. I wasn't aware of s72(1), I thought the authors of the Guidance had just plucked the wording from the air. Pount made, and taken. Trees are not protected by CAs, there is merely a precautionary approach against their removal; their protection still has to be proven and formalised by a TPO when their removal is proposed. I can reveal that my trouble with this has been all along the older CAs where ther is no CA appraisal.

Q2. Noted, but it will always be a grey area as to how many residents make a public. Or whether all members of this 'sub-public' are equal regardless of wealth and party affiliations. It helps to hear someone else resigned to it being vague, like the rest of the planning system.

Good luck to Lord Taylor of Goss Moor whoever he is, I agree with the sentiments but when the Government can't even keep the legislation.gov.uk up to date, he might be advised to throw another few quangos on the fire to keep himself warm while awaiting the streamlining of Guidance.

It isn't clear whether he plans a crown clean or a crown reduction, but current political sentiment suggests the latter. Good luck to him, it won't be easy!

[Amelanchier]

I feel your pain regarding appraisals. When assessing development impacts on a CA, it makes sense to try to evaluate the value of the trees affected in the context of the area's character and appearance (this will often be a policy requirement in any case) - without an appraisal the LPA can end up defining the value as they see fit after the application is in! Applicants are somehow expected to design their proposal in the absence of any guidance as to what is important to a particular setting and when third parties like me define it for the purposes of the application LPAs often just disagree or ignore it. Its important if we say its important after we've seen whether we like your proposal!

 

Worse still are the appraisals that don't mention trees - It seems reasonable to me to assume that, having asked a professional landscape consultancy to assess what elements are important to the character and appearance of the area, if trees aren't mentioned in the final published document then the LPA doesn't think that trees are important. If they do then the appraisal is the place to say so right? Apparently not, the importance of trees can be defined later, over and above existing guidance at the LPA's whim. Goalposts on wheels.

 

Vagueness is important in one respect I guess. Too prescriptive a system would fail to be adaptable - what irks me is the use of vagueness for the sake of laziness or obstruction.

Take TPO's for example; I had an Order served on site recently that claimed that the "The Council have made the Order due to the increased pressure from development it has been considered that it would be expedient in the interest of amenity and to retain the immediate street scene to serve a Tree Preservation Order [sic]".

 

What this garbled nonsense should have said was; "The Council has made this Order because an application has been submitted that proposed the removal of trees that are considered to be important to the appearance and character of the conservation area - especially views along XXXX lane."

 

Putting aside the fact that as the trees were in a CA all the LPA had do to prevent them being felled was refuse the application(!), the reason it wasn't as clear as it could be was presumably a combination of laziness (the first reason can be cut & pasted into any development related Order) and deliberate obfuscation (its harder to disprove something that can change its final meaning depending on the circumstance).

 

As for Lord Taylor's job spec - I just hope its not a fell...

[Gary Prentice]

Putting aside the fact that as the trees were in a CA all the LPA had do to prevent them being felled was refuse the application(!), the reason it wasn't as clear as it could be was presumably a combination of laziness (the first reason can be cut & pasted into any development related Order) and deliberate obfuscation (its harder to disprove something that can change its final meaning depending on the circumstance).

 

Tony, do you mean refuse the development application. Sorry if I'm being obtuse, but the council can't refuce a 211 notice as such.

[Amelanchier]

Yeah sorry - refuse the planning application! You're quite right about the s211.