Permitted development questions.

I've a client who has full planning consent, for a barn conversion. Normal conditions are applicable, in that development may not commence until details such as hard/soft landscaping plans, materials for doors/windows etc are agreed.

Council has said there are no tree restraints present/there are tree restraints present??????????

Q1. Are tree works considered to be part of the commencement of development?

Q2. If there are TPO's present and the development consent plans show carparking areas where the trees are, does this overide the TPO? (as I understand it does)

Q3 The trees in Q2 are not shown on any plan (Supplied in the current application/consent and an earlier application that was withdrawn). Does this affect their status.

No Arboricultural Survey was requested nor supplied. No details were requested with regard to tree protection etc and plans were accepted that allow soil level changes within the rooting area of a mature tree.

Q4. Can the planning department now alter the permitted consent to take this into consideration?

The car parking area is within an existing walled garden, as stated in the application. It's been unmanaged for a number of years, but contains non-native garden type plants. Witnesses are also available that this has been the land usuage for the last forty years.

Given the number of trees the client wishs to remove, (subject to existing TPO,s), a felling licence would be possibly required if the land was registered as agricultural for example. Would the acceptance of the LPA of the garden statement exempt any FC felling licence issues?

My life used to so much simpler when I only climbed trees.

Interesting questions... I would suggest the following.

1. Only substantial tree works on trees that are part of the consent either explicitly or implicitly could be considered commencement of development i.e. if there are other non protected (neither by TPO nor planning conditions) trees on the application site (as delineated in the application) which are unaffected by the development, the removal of these would not be implementation of the consent.

2. This is what I would suggest is implicit consent to remove the TPOd trees, but there is a remote danger that the LPA could claim retrospectively that it thought the trees were to be retained within the car park. If you are satisfied that the application and the associated drawings openly indicvate that the trees will not be present on completion of the development as consented, and if there are no conditions relating to the trees then their removal should be immune from prosecution.

3. Ahhhh! Scrap the aforegoing, I wouold suggest a precautionary approach that starts with checking with the LPA that it is aware of the trees, their TPOd status and the implicit removal of them to implement the consent.

4. The LPA cannot withdraw the issued consent unless by making a Revocation Order (which they never do and which could give rise to expensive compensation liabilities for them). I would think the LPA could waive reserved matters, effectively simplifying and altering the consent b ut it couldn't add conditions. If you have an advantageous consent that allows the argument that removal of TPOd trees is implicit, I would hold the LPA to it.

5. If it is a garden, no felling license is required. Also if the development is consented and the felling of trees is immediately required to implement a planning consent. On both counts (opnly one is needed) you seem to eb in the clear.

And that's a closed thread right there - full and comprehensive answer on the first reply!

And that's a closed thread right there - full and comprehensive answer on the first reply!

There's more:001_tt2: But I'm always pleased to receive answers/opinions on the legal stuff from Jules and yourself.

Interesting questions... I would suggest the following.

1. Only substantial tree works on trees that are part of the consent either explicitly or implicitly could be considered commencement of development i.e. if there are other non protected (neither by TPO nor planning conditions) trees on the application site (as delineated in the application) which are unaffected by the development, the removal of these would not be implementation of the consent.

2. This is what I would suggest is implicit consent to remove the TPOd trees, but there is a remote danger that the LPA could claim retrospectively that it thought the trees were to be retained within the car park. If you are satisfied that the application and the associated drawings openly indicvate that the trees will not be present on completion of the development as consented, and if there are no conditions relating to the trees then their removal should be immune from prosecution.

3. Ahhhh! Scrap the aforegoing, I wouold suggest a precautionary approach that starts with checking with the LPA that it is aware of the trees, their TPOd status and the implicit removal of them to implement the consent.

4. The LPA cannot withdraw the issued consent unless by making a Revocation Order (which they never do and which could give rise to expensive compensation liabilities for them). I would think the LPA could waive reserved matters, effectively simplifying and altering the consent b ut it couldn't add conditions. If you have an advantageous consent that allows the argument that removal of TPOd trees is implicit, I would hold the LPA to it.

5. If it is a garden, no felling license is required. Also if the development is consented and the felling of trees is immediately required to implement a planning consent. On both counts (opnly one is needed) you seem to eb in the clear.

Thanks for the answers Jules:thumbup:

1)That was my original thought, as there is no mention of trees at all, either in the original 2011 application (withdrawn) or the current consented one. The only written indication is a condition of planning consent for tree planting

" No development shall take place unless and until full details of both hard and soft landscape works have been submitted to and approved in writing by the Local Planning Authority and these works shall be carried out as approved (such scheme to include any subsequent amendments as required by the Authority). The hard landscape details shall include proposed finished levels or contours; means of enclosure; hard surfacing materials and street furniture, where relevant. The soft landscaping works shall include planting plans; written specifications (including cultivation and other operations associated with plant and grass establishment); schedules of plants and trees, noting species, plant/tree sizes and proposed numbers/densities and the implementation programme."

Most trees are indicated on the site plans, with the exception of one group in the car park.

2) &3) This is where it gets a bit tricky. I think the council would have difficulty claiming to presume the group is/was intended to be retained. Details provided state the garden area is approximately 450 higher than the access road, levels to be reduced to road level for a membrane/sub base and gravel surfacing to be installed.

The planned site visit on wednesday may bring a TPO with it, but I can't imagine they can now include this group? On the assumption that they can't, I plan to remove one other tree on tuesday, (after checking the absence of TPO,s tomorrow) before the site meeting. By only removing one sycamore the FC felling licence becomes mute anyway.

Anyone reading who has doubts about the morality of felling on this site should consider the following;

1) A planning app was submitted in 2011. A TPO should have been served then on the grounds of expediency.

2) A second, revised application was submitted early 2012, again showing the presence of trees.

3) A bat survey was supplied, but no tree survey or Arboricultural Impact Assessment was requested, or supplied, for either application.

4)The LPA has claimed there are/aren't TPO's applicable.

If the planning department can't do their job properly, I'll certainly do everything possible to serve my clients interests. Rant over...

I should have added, TPO consent is not required for tree works that are part of the implementation of a planning consent.

For completeness, and once the dust has settled, I would suggest that the Council revokes any TPO that might be affecting the developed land, otherwise it will turn up time and time again in land registry searches, needing an explanation every time.

And I suppose we are all conditioned to think that a TPO means no tree work ever, but it really just means permission is needed first and the Guidance is clear (if not the legislation, but I can't track the relevant section down just now) that detailed consent, with or without reserved matters relating to trees, overrides a TPO.

Can't add anything to the answers given.

What I would say though is that if it was thought that the LPA had acted unlawfully the decision could be challenged through a civil action or judicial review. If, for example, the LPA was required by law or policy to consider the impact that the development had on trees or biodiversity and had not done this, anyone could mount a challenge.

In reality this doesn't happen very often as it costs a lot of money.

Jules, that was my understanding that the permitted development trumped any TPO.

Anyway, I got to the bottom of it today. No orders, but the planning officer was "sort of" suggesting that the Landscaping Condition was "kind of" going to be the decision time on the tree work issue....... The TO was going to visit to look for an agreement on required works, but that ideas being shelved after discussion. To enable the development, as permitted, we can remove what we intended.

I did point out the timescale of the applications, almost two years, and that our client could have carried out a lot of pre-emptive felling.

Thanks for all the information, it helped to confirm my understanding of the more complex (to me) details.

Jules, that was my understanding that the permitted development trumped any TPO.

 

Anyway, I got to the bottom of it today. No orders, but the planning officer was "sort of" suggesting that the Landscaping Condition was "kind of" going to be the decision time on the tree work issue....... The TO was going to visit to look for an agreement on required works, but that ideas being shelved after discussion. To enable the development, as permitted, we can remove what we intended.

 

I did point out the timescale of the applications, almost two years, and that our client could have carried out a lot of pre-emptive felling.

 

Thanks for all the information, it helped to confirm my understanding of the more complex (to me) details.

Just a little clarification

Full planning consent trumps TPO's

Permitted development is part of the planning process and doesn’t trump TPO's

Just a little clarification

 

Full planning consent trumps TPO's

 

Permitted development is part of the planning process and doesn’t trump TPO's

My bad terminology:blushing: thanks for the input

Good outcome.

I think that when you said 'permitted development' you meant 'consented development'. Permitted development is a general term for woks that don't need permission, usually because they are trivial or small scale.

And for the truly hardcore worriers, permitted development rights can be withdrawn by a LPA in conservation areas.