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 Critically, these orders should be kept under constant review, orders should not be allowed to become procedurally outdated (changes in the law) or physically outdated (the order is so old everything has changed).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