Replacement trees

[APC]

- An LPA serve an area TPO

- Landowner applies to fell 10 trees (not worthy of TPO in their own right) and LPA permits, subject to replanting of 5 trees

- The LPA revisit site and specify individual trees/groups and make new TPO (rather than amending the area)

- Area TPO not confirmed so lapses

- New TPO to be confirmed.

 

 

 

Q1: Did the condition to replant die with the area TPO?

Q2: If Q1 = yes, was the error in making a fresh TPO rather than modifying the original order?

 

Thanks in advance.

[AA Teccie (Paul)]

Hmmmm, an interesting one...and a conundrum

 

I would suggest, so probably stop reading now , that provided the 'new' TPO doesn't include the trees in question, and obviously they may have already been removed, then the replacement planting condition would not be enforceable by a 'TRN' (tree replacement notice.)

 

In response to your Q2. I'm really note sure what the current protocol is, i.e. whether a new or amended TPO is the way to go although I suspect the former as the TPO covering groups and individuals etc. is fundamentally different. (I do bow to others greater knowledge here tho.)

 

Hoping this posts prompts a better response...Paul, Gary???

 

Cheers..

Paul

[Roz]

So LPA serve an area TPO as they feel the situation is urgent and don't have time to undertake a full and detailed survey - consent then granted under this area TPO to fell 10 trees which were apparently 'exempt' from the TPO and a condition to replant 5 trees placed on the DN...the question being the six months has expired on the original area order and allowed to lapse therefore is the replacement planting condition still legally valid. IMO NO if the TPO lapsed it has no legal standing.

 

The new TPO was served to be more definitive which was the correct thing to do BUT what they should have done is confirmed the area TPO, drawn up the more definitive TPO and either 1) on the replacement trees being planted revoke the area TPO and/or serve the new TPO - to include the replacement trees so they are protected as soon as they are planted then revoke the TPO.

 

By not confirming the area TPO IMO the condition to replacement plant becomes null and void.

[kevinjohnsonmbe]

That all sounds logical Roz.

 

Had it been done in the order you suggest above, would the newly planted trees have 'scored' highly enough to warrant inclusion in the 'new' TPO as described above?

 

Tree Preservation Orders – general | Planning Practice Guidance

 

Aside from the circumstances above, how common is it that newly planted trees are subject to a new TPO in their own right rather than as a continuation of an area order or as a condition of felling a preceding TPO'd tree? Would they realistically satisfy the necessary criteria?

 

Hope that's not derailing too much.... It kind of links to the original question....!

[Chris at eden]

Its probably slightly unreasonable to put a replacement condition on trees that did not merit protection in the first place. There is a government circular which stats what planning conditions must be. e.g. Fair, reasonable, etc.

 

TPO's are only supposed to be served if the removal of the trees would have a significant impact on the local environment. Sounds like these did not meet the criteria.

 

I would appeal the TRN. First thing the PINS will ask for is the TPO and evidence that it has been confirmed. That's not going to happen by the sound of it.

 

Even if they had confirmed the order I would still appeal as the way in which the legislation has been administered is not appropriate. You cant TPO rubbish trees just so that you can get land owners to plant better ones.

[Chris at eden]

 

Aside from the circumstances above, how common is it that newly planted trees are subject to a new TPO in their own right rather than as a continuation of an area order or as a condition of felling a preceding TPO'd tree? Would they realistically satisfy the necessary criteria?

 

QUOTE]

 

Not sure I understand this Kev. What is your thinking?

 

Cheers,

[Chris at eden]

Q1 Yes

Q2 Yes but no but. It would be very likely that such a modified Order would not withstand the scrutiny of the High Court, so a new Order was the right thing to do. The LPA should have communicated with the landowner to explain what was happening and advise them to wait for the final order before applying to fell.

 

If the landowner insists on applying under the Area Order the LPA could prevaricate, (or pull their finger out and quickly make a new Order), until the new Order was made, let the old Order lapse and demand a new application.

 

Ed

 

Q2 - that's not what Richard Nicholson is selling in his TPO course run through CAS. He actually states that you should not confirm as an area but should modify to groups and individuals before confirmation and confirm the new plan and schedule. Goes as far as to say extend the areas across the boundaries so as boundary trees can be included without the risk of being accused of including new trees and therefore avoid the need to consult again.

 

I do agree though that you would be better just making a new order and re-serving, and allowing the old to expire.

[Chris at eden]

The problem with that approach is that you shouldn't modify an Order so that it becomes a different animal. Areas of trees are not the same as individual trees or groups. I think it's asking for trouble. It's more than just not adding trees. I always draw the boundary, particularly for woodland TPO's beyond the edge of the trees, so they're all within the solid black line, and not on it.

 

And. Why is it unreasonable. There are many reasons why a tree may not merit a TPO but is a significant amenity the loss of which will have a detrimental impact on the public enjoyment of the location. E.g. Large prominent tree that is danger of falling/has less than 10 years useful life expectancey/small tree that will grow to be a large tree planted as part of a landscaping scheme. I've TPO'd trees in all these circumstances. The first two categories I allowed them to be felled and conditioned replacements. If nothing had been done there would not have been any future benefit.

 

You can also TPO trees that haven't been planted and are part of a landscaping scheme conditioned as part of a development.

 

Benefit may be future as well as present so amenity isn't just about size and right now. TPO's aren't only made if the computer, or whatever scoring system is used, says yes. The scoring system should at best be a guide, and common sense should take precedence.

 

It's Circular 11/95 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/7715/324923.pdf

 

Ed

 

 

Hi Ed

 

I realise all that and I kind of agree. I was quite surprised when Richard was talking about modifying the areas before confirmation. As I said, I don't know why you would just not make a new one and allow the other to expire. Just that it may be possible.

 

The unreasonable bit. The way I interpreted the OP was that the trees didn't merit protection, full stop. i.e. not good examples and no future potential, maybe they had no visibility. Not sure what the reasons were. My point was that I don't think the LPA should be protecting low quality trees simply so they can force the land owner to plant something better. I personally think that is asking for trouble.

 

Cheers

[kevinjohnsonmbe]

 

Aside from the circumstances above, how common is it that newly planted trees are subject to a new TPO in their own right rather than as a continuation of an area order or as a condition of felling a preceding TPO'd tree? Would they realistically satisfy the necessary criteria?

 

QUOTE]

 

Not sure I understand this Kev. What is your thinking?

 

Cheers,

 

I think Edward has kind of answered it above. The question I was trying to put (outside of this particular set of circumstances) was, is it common practice / appropriate to TPO a newly planted tree. Ed went even further and exampled a TPO on a tree which has not yet even been planted. If it's been done, then I guess the answer is, it's possible. I'm just wondering now, is it appropriate and could it be enforced as a TPO on an unplanted tree or would it be better as a planning condition, then TPO after planting?

[Gary Prentice]

 

I think Edward has kind of answered it above. The question I was trying to put (outside of this particular set of circumstances) was, is it common practice / appropriate to TPO a newly planted tree. Ed went even further and exampled a TPO on a tree which has not yet even been planted. If it's been done, then I guess the answer is, it's possible. I'm just wondering now, is it appropriate and could it be enforced as a TPO on an unplanted tree or would it be better as a planning condition, then TPO after planting?

 

I think planning conditions may be problematic in their enforcement, or lack impetus in certain authorities. De-railing slightly, a site I've been involved in gained consent for a number of houses stating that only four or five trees would be removed. All screening planting was to stay.

 

The entire site was cleared, but because the condition was to follow the soft landscaping plan no TPOs were made. The authority now have to attempt to demand a change in condition application - which I imagine the developer will fight every inch of the way. A TPO would appear to have put the LA on far better ground.