This article looks at the statutory protection of trees covered by a Tree Preservation Order (or Conservation Area) from the perspective of the sports field manager or facilities manager of a large open space.

Bowthorpe Oak 1.jpgThe TPO as a land charge

The Tree Preservation Order is a land charge affecting land and landowners, which seeks to maintain amenity trees by controlling the space that those trees occupy, and to control any cultural treatments that might impact on continuity of tree cover.

This is a key point of note, effectively the individual trees are not protected directly, and it is the control of land using a map and a legal charge that allows for councils to approve or refuse planning applications to fell trees.

Remember that, for Forestry Act purposes, a whole set of additional controls impact the volume of timber that can be removed in any given period from land.

Amenity and Continuity of Tree Cover

Amenity is defined as "advantages that accrue" from the presence of a 'thing'. These advantages can be the community's visual amenities, strategic landscape amenities (Local Plan and policy reasons) or landscape character reasons (including Conservation and Heritage). The TPO is a planning tool for maintaining tree cover (Note: not maintaining individual trees in perpetuity) and ensuring that continuity of tree cover might exist at a particular location, all other considerations (Local Plan, policy or legal) being equal.

Wyndham's Oak 1.jpgTPOs, Conservation Areas and Sports and Recreational Facilities - The relationship between landowners and TPOs

Tree Preservation Orders are a charge over land and, as such, contain detailed provisions, both protecting amenity and those circumstances in which works to trees are exempt from planning control. In determining to make a TPO as a response to an application to carry out building or development works or, more generally, in the interests of local amenities, Tree Officers should ensure that they are aware of the local planning policy status of a sports ground, the history of management of the site, the landowners past behaviour (i.e. a responsible and knowledgeable landowner) and the landscape significance in regard to character of the various trees on site.

All of this is, simply to say, that planning officers and tree and landscape officers should know why they might make a TPO - is it a strategic reason, is it due to new planning circumstances or applications for built development, is it because of alleged tree felling or pruning of poor management quality?

What Council officers should not do is make TPOs simply because there are trees present. They should be able to demonstrate exactly how the TPOs are connected to strategy and policy, and they should be able to demonstrate a system for the consideration of trees and the making of orders.

Critically, these orders should be kept under constant review, orders should not be allowed to become procedurally outdated (changes in the law) or physically outdated (the order is so old everything has changed).

Councils should review and seek to update orders regularly, and involve land owners in this process.

This is a key opportunity; it is our view that many large strategic landowners on well established sites would be better agreeing long term (10-25 year) master-plans for trees and woodlands. This reduces bureaucracy, administrative costs and conflict, and allows landowners to manage to long term plans free of the burden of TPO applications.

IMG_1189.JPGExemptions to control exist

In terms of the exemptions, the individual order will detail the form of words used in respect of the regulations in force from time to time. However, dead, dying, diseased and dangerous trees, trees causing a nuisance to a third party - trees under control of a statutory undertaker - may all be exempt from planning control.

Given the position taken on public safety to hazard trees, and the potential conflict with statutory protection by TPO, the following should be considered:

• That a recent case (Poll v Asquith) has established that all tree inspectors need to be qualified and competent to undertake assessments
• That Poll v Asquith has restated the duty of care that landowners owe in respect of their trees
• That an estate manager and warden were recently arrested on suspicion of manslaughter following the failure of a beech tree that killed an 8 year old boy
• That the Health and Safety Executive have highlighted the need for those involved in tree work operations to carefully check the competency of their contractors

Prior to relying on the exemptions to planning control, it is essential that landowners have properly considered the issues, and that they have notified the planning authority that they intend to rely on the exemption before they proceed.

parisce1.jpgObjecting to new orders

The Act requires that those affected by TPOs be given the right to object to the making of an order, which the council must then fairly determine if there is any merit in the objection.

A selection of reasons for objection might include:
• The land is under effective management control and trees are not at risk
• The trees are not sufficiently important to warrant a TPO
• The Order, its map or schedules are wrong
• Some or all of the trees are exempt from controls
• The land is wrongly referenced or the land is under another party's control
• The regulations and procedures have not been followed

Tree works

It is almost inevitable that Tree Preservation Orders will exist on many of our sports fields and recreation sites - sixty years of planning control and TPOs, the encroachment of previously distant settlement boundaries and the high profile of these sites makes them an obvious target for the tree officer.

Therefore, the council, and the sportsfield manager, should consider agreeing policies for land management that allows tree works to proceed, whilst maintaining and protecting visual amenities.

It is our opinion that the most effective way to do this is through land management agreement, either within the TPO regulations or as a standalone agreement between the land manager and the council.

About the author: Oisin Kelly is a Principal Consultant of Landscape Planning Limited, a company specialising in land use and risk management of trees, habitats and wildlife relating to lawful planning use.

Visit www.landscapeplanning.co.uk to learn more.
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