Trees on land adjacent to development sites

[Paul Barton]

Some interesting discussion has been generated from a thread on the homeowners advice forum, where a tree with a TPO outside of the site has been potentially damaged.

 

Julian Morris posted a great question that is worth some further thought and debate:

 

JM: The Regulations say that nothing shall prevent the cutting down, topping, lopping or uprooting of a tree so far as such work is necessary to implement a detailed planning permission. It does not exempt the wilful damage or wilful destruction of a tree. Presumably because severing roots, which might otherwise be 'damage' (and which may be different from uprooting) could be controlled by planning conditions. There is no way in my mind that the legislation has anticipated this scenario where damage is done to a TPO'd tree that is mainly situated outwith the planning application boundary.

 

Was the developer meant to check for TPOs outside his land. No. On balance if it went to court would the onus have been on the Council that makes TPOs to notice and control the damage by conditions. I think so.

 

But does the exemption due to planning permission apply? I'm not so sure it does. It might rest on whether severing of roots counts as uprooting a (whole) tree. Patently it's different. And so the exemption cannot be relied upon. Which shifts the question onto the word 'wilful'. Did the two eejits with the bulldozer wilfully damage the tree? Was the intention to damage the tree or was the intention to remove the roots. I know they have the same consequence for the tree, but the legislation is there to examine the motive. There has to be damage and will.

[daltontrees]

Paul, in the original thread I have had to clarify that the developer should in theory have checked for TPOs on the neighbouring land, since it is the tree and its roots that is TPOd, not the land. However, one of the normal ways of checking is to do a land registry search, as TPOs are recorded there. But the land registry is land based, not tree based, and the only land showing up on a TPO search will be the land on which the above-ground parts of the tree originate (i.e. the butt).

 

It may be perfectly competent for a Council to make and record a TPO that shows the area they expect to be within the RPA. BY recording a circle of land centred on the tree, for example. Rather than by recording a dot or the address where the tree is. But I can't see this ever happening.

[Paul Barton]

That's a great idea Jules. I guess an LPA plotting an anticipated RPA would need to consider the species and ultimate potential stem diameter in order to plot an RPA that would be future proof in some way.

 

With regards to the land reg search to flag up TPOs, it would seem to make sense that a land reg search for a development site should include a buffer around its perimeter to pick up constraints close to the site. I don't know how easy that is in practice though.

[daltontrees]

Addendum - btggaz made a usepul point in the original thread; the exemption reliant on planning permission can only be used 'so far as such work is necessary to implement a planning permission'. 'So far as' can be taken to mean 'no more than' and 'necessary' seems to mean 'unavoidably required'. Getting planning permission does not therefore give you carte blanche to do what you want to TPOd trees. If your site ha planning permission and there is a TPOd tree on the site in the corner where there is no effect on it of the development but you chopped it down anyway, the exemption does not apply and you could/should be prosecuted. If the tree is outside the site but it's roots are inside, the same rationale applies. Prosecution for unnecessary root damage.

 

Help me out here guys and gals, it's not very conclusive if I have to answer my own question.

[Paul Barton]

I agree Jules. If the approved plans and method statements submitted to the LPA do not include details of activity close to trees that are some way away from the main development then the LPA has to conclude that any damage can't have been necessary to implement the planning permission.

 

It reminds me of the importance to either include ALL trees on the site or at least make a note of them on the plan even if some are far away from the development, for the avoidance of doubt.

 

Often it's not the actual 'building' that is the problem for trees on the site, it's the associated construction traffic, groundworks, service installations.....

 

I have found it's common for both tree officers and arboriculturists to only focus on the building(s) footprint and miss the wider site issues.

[daltontrees]

That's a great idea Jules. I guess an LPA plotting an anticipated RPA would need to consider the species and ultimate potential stem diameter in order to plot an RPA that would be future proof in some way.

 

With regards to the land reg search to flag up TPOs, it would seem to make sense that a land reg search for a development site should include a buffer around its perimeter to pick up constraints close to the site. I don't know how easy that is in practice though.

 

Mynors says that TPOs have to be recorded as a local land charge under the 'planning charge' heading. I know nothing oif the english Local Land Charges Act 1975 but it may be that it allows for areas rather than positions to be recorded.

[Alan Webster]

Some interesting discussion has been generated from a thread on the homeowners advice forum, where a tree with a TPO outside of the site has been potentially damaged.

 

Julian Morris posted a great question that is worth some further thought and debate:

 

JM: The Regulations say that nothing shall prevent the cutting down, topping, lopping or uprooting of a tree so far as such work is necessary to implement a detailed planning permission. It does not exempt the wilful damage or wilful destruction of a tree. Presumably because severing roots, which might otherwise be 'damage' (and which may be different from uprooting) could be controlled by planning conditions. There is no way in my mind that the legislation has anticipated this scenario where damage is done to a TPO'd tree that is mainly situated outwith the planning application boundary.

 

Was the developer meant to check for TPOs outside his land. No. On balance if it went to court would the onus have been on the Council that makes TPOs to notice and control the damage by conditions. I think so.

 

But does the exemption due to planning permission apply? I'm not so sure it does. It might rest on whether severing of roots counts as uprooting a (whole) tree. Patently it's different. And so the exemption cannot be relied upon. Which shifts the question onto the word 'wilful'. Did the two eejits with the bulldozer wilfully damage the tree? Was the intention to damage the tree or was the intention to remove the roots. I know they have the same consequence for the tree, but the legislation is there to examine the motive. There has to be damage and will.

 

Lopping is a exemption, it doesn't say branches so presumably includes roots.

[Alan Webster]

Addendum - btggaz made a usepul point in the original thread; the exemption reliant on planning permission can only be used 'so far as such work is necessary to implement a planning permission'. 'So far as' can be taken to mean 'no more than' and 'necessary' seems to mean 'unavoidably required'. Getting planning permission does not therefore give you carte blanche to do what you want to TPOd trees. If your site ha planning permission and there is a TPOd tree on the site in the corner where there is no effect on it of the development but you chopped it down anyway, the exemption does not apply and you could/should be prosecuted. If the tree is outside the site but it's roots are inside, the same rationale applies. Prosecution for unnecessary root damage.

 

Help me out here guys and gals, it's not very conclusive if I have to answer my own question.

 

Only Paul has seen the planning documents and I'm not sure if he has seen all of them.

It was asked earlier on if all the detail is included in the plans if service trenches etc. Usually the site boundary fence is included as it is required to comply with the Secure by Design requirements.

The photographs from the original thread show that the main damage to the tree is due to the grade change to allow the fence to be erected.

Also if the tree was included in a tree survey and either categorised as U or indicated for removal this also forms part of the application.

[AA Teccie (Paul)]

Gents, as I have previously "cross-pollinated" industry forums where appropriate, and as I can offer very little contribution here, if there are unaddressed issues you are keen to pursue it might be worth widening your 'range of engagement'...if you get my gist (if not try here tree-care.info :: tree-care.info )

 

Regards..

Paul

[Paul Barton]

Oi Paul, don't send the interesting debates elsewhere!

 

You are right though - there are plenty of clever types on the UKTC.