Status of trees included as condition in permission

[Randomiser]

Rather than 'hijack' somebody else's topic on RPAs I thought it best to start a new one.

 

The consent on the site we are close to exchanging on had a condition that the house be built in line with the arboricultural methods statement submitted with the application.  That statement identified the RPA of a number of trees on the site and specified the need for fencing off of some parts of the site, an area of foundation that needs to take account of the RPA and a small area of the proposed driveway that needs to be of 'no dig' construction.

 

The site is not in a conservation area and the trees that create these requirements do not have TPOs on them.

 

I had assumed that this meant the trees could not be touched, but in the RPA topic PeterW has said that given there is no TPO and the site is not in a conservation area the trees could be removed.  I can see how this makes sense as otherwise you could presumably not touch the trees even if the house were not built.  But this comment does open up a can of worms that I would be interested in views on:

• If we were to take down the tree which has the RPA that creates the need for a small section of 'no dig' construction on the drive would we be in the bizarre situation that even though the tree were no longer there we would still have to make that section of drive using 'no dig' construction to comply with the condition in the planning consent?
• It would have been simpler to remove the tree before making the application, but maybe the screening it provides was important in getting the consent through.  Has the council therefore made a mistake in not applying a condition that the tree needs to remain and / or be replaced if it is removed (replacement is a condition I have seen on consents for other sites we have looked at)?
• The situation is bizarre as given the lack of TPO and conservation area as soon as the house is signed off as complete presumably the offending tree could just be removed anyway, so protecting it now seems to make no sense.

 

This is something I would not want to discuss with the council as presumably they could just put a TPO on a tree and then it could not be removed - I have heard stories of councils doing this within an hour when somebody has reported that a tree is about to be cut down.

 

Any thoughts much appreciated.

 

Randomiser.

 

[Ferdinand]

Once the tree has gone, your No-Dig Planning Condition is likely to be unenforcible, and you may be able to ask for the Condition to be removed on the basis that it is "no longer necessary", and in fact would fail 5 of the 6 required tests:

 

Quote

Paragraph 206 of the National Planning Policy Framework states “Planning conditions should only be imposed where they are:

1. necessary;
2. relevant to planning and;
3. to the development to be permitted;
4. enforceable;
5. precise and;
6. reasonable in all other respects.”

The policy requirement above is referred to in this guidance as the 6 tests.

 

But your blowback could be instant TPOs on all the other trees, which would then be confirmed or not depending on their evaluation of public amenity and tree quality. And perhaps attempts at enforcement.

 

How to play it?

 

I think I would  think through, and create if I could , a "landscape strategy" (ie a draft or prepared plan of your proposed garden and attached words, in a report format), which  I would then if necessary use to show that it was reasonable to remove the tree. That may assuage any visiting Tree Officers who appear out of holes in the ground with itchy trigger fingers, indeed they may like it. I would apply that to the other trees too, and I would consider doing the works before I talked to the Council to make sure that I wasn't going to get any TPOs that were showstoppers.

 

I would also make sure that my new garden was more nature-beneficial than before eg genuinely appropriate planting (eg undergrowth, bushes and trees with food, and some taller dense stuff for nests, hedgehog holes in fences, and swift boxes etc). Our birds are currently gorging on the Pyracantha berries.

 

A further advantage is that were you to attach the Plan to your PP in an appropriate manner if possible, it may bring some of your landscape works within the scope of reclaiming VAT.

 

(Make VERY sure that they are not protected before you do works; to prune or remove a TPO tree is an offence, and unauthorised works done during a building project are exactly the circs where they would seek to enforce.)

 

This is a strategy to be considered carefully in the light of the local circumstances and the trees concerned. A half grown sycamore that cannot be viewed from a public road is a different situation to a fully grown Turkey Oak that is loved locally, for example.

 

F

 

Edited November 6, 2018 by Ferdinand
Nuamced a little.

[Randomiser]

11 minutes ago, Ferdinand said:

Once the tree has gone, your No-Dig Planning Condition is a dead parrot, and you could ask for the Condition to be removed on the basis that it is "no longer necessary", and in fact would fail 5 of the 6 required tests:

 

 

But your blowback could be instant TPOs on all the other trees, which would then be confirmed or not depending on their evaluation of public amenity and tree quality.

 

 

 

Thanks Ferdinand that is very helpful, I guess it would be a variation of the condition rather than removal as the arboricultural method statement included in the condition covers move than just that bit of driveway.  It does seem that the council have missed a trick in not putting a retain or replace type condition in the consent.

 

What I may do is to get a tree surgeon to look at the particular tree, in the original report it was described as only being in "fair" condition and whilst not mentioned in the report it is covered in ivy, which can't be helping its condition.  If I can get the tree surgeon to say the tree is unhealthy / a bit dangerous that may mean the action of taking it down is viewed more sympathetically (I don't want to  put the council off side before I even start!).

 

Randomiser

[vivienz]

We bought our plot with a PP already in place and part of the submission was an arboricultural statement along with various other statements concerning flora and fauna. There were no TPOs in place but still requirements for root protection of various trees and hedges (several within the area of the plot rather than on the boundary) and accompanying recommendations on these. None of the trees or hedges were of high ecological value. As part of our new PP application we submitted a plan for the entire site that dramatically increases the ecological value of the site and when the time came for work to begin we took out several trees and several long hedgerows with no difficulties. It's worth noting, though, that we are in a fairly isolated rural area where the neighbours don't spend their time making mischief for others.

If you decide to have any trees removed, make sure you get it done before the end of March at the latest, when bird nesting gets going again.

[the_r_sole]

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Edited September 26, 2019 by the_r_sole

[Randomiser]

34 minutes ago, the_r_sole said:

If there is a condition on the planning permission that trees need protected then I'm pretty sure you can't just chop them down and say you want to remove the condition, I've done many applications where trees provide screening of the house and the planners like to agree that some will stay and be replaced if they are taken away.

If you take the tress down there is potential for you to have to submit a new planning application as you cannot satisfy a prestart condition on the current application due to your own actions (I've certainly been threatened with that before from planners as removing the screening means the visual impact changes)

 

Everything you say is very sensible, except, as soon as the house is signed off as finished the trees can be cut down as there is nothing that conditions retention of the trees after the tree protection fencing comes down.  So it all seems a bit odd.  But as somebody else alluded to, my mistake may be in looking for something that is logical ?

 

Randomiser.

 

[the_r_sole]

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Edited September 26, 2019 by the_r_sole

[PeterW]

3 hours ago, Ferdinand said:

Make VERY sure that they are not protected before you do works; to prune or remove a TPO tree is criminal, and unauthorised works done during a building project are exactly the circs where they would seek to enforce

 

That is not correct.

 

Unlawful removal is an offence however...

 

If a tree is dying, diseased or dangerous you can remove or work on it to prevent either further damage to the tree or property. Whilst this should be done with notice, it is not required in many circumstances.

[Ferdinand]

3 hours ago, PeterW said:

 

That is not correct.

 

Unlawful removal is an offence however...

 

If a tree is dying, diseased or dangerous you can remove or work on it to prevent either further damage to the tree or property. Whilst this should be done with notice, it is not required in many circumstances.

 

OK. Will edit. Cheers.

Edited.

Edited November 6, 2018 by Ferdinand

[Mr Punter]

I have removed quite a few trees from a site before starting work on the new building.  The planners were not thrilled but there was nothing they could do.  My preference now is to remove the trees not required before submitting the planning application.

 

If you have not begun work I suggest you take out any trees you do not want to keep.

[Ferdinand]

1 hour ago, the_r_sole said:

 

Yeah, usually the condition has some control of the lopping etc of the trees, if they haven't put anything in to do that it sounds a bit strange - still if you can't meet a prestart condition because you have materially changed the site then they would be within their powers to stop work on site - you need to understand why they have put the condition on and try to vary it before you do anything else - cutting down a tree to then argue the condition isn't needed is a very risky strategy

 

To me that seems to be a highly convoluted argument. They would be relying on a secondary effect of a very arguably fundamentally unenforcible  Plannign Condition (a condition does not come into force until development starts, and iirc pruning trees is not "start of development").

 

But I'll stop there, as Martin Goodall has written 2 articles about this area in the last 2 months, and did so previously in 2011 especially wrt trees:

 

https://planninglawblog.blogspot.com/2011/06/pre-commencement-conditions.html

 

http://planninglawblog.blogspot.com/2018/09/pre-commencement-conditions.html

 

http://planninglawblog.blogspot.com/2018/10/defective-prior-approval-applications.html

 

Ferdinand

 

[the_r_sole]

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Edited September 26, 2019 by the_r_sole

[Ferdinand]

25 minutes ago, the_r_sole said:

 

when you deal with lots of different planning authorities you get very used to convoluted  arguments!

There are many a badly written planning condition which can't be enforced but we don't have sight of the detail of the op's and there isn't really a blanket yay or nay - the wording that Martin Goodall uses in his example would be easily shot down and trees could easily be removed without consequence, because all they are looking for is for the applicant to identify what's on site. I've have applications before where the condition is much better written and not so open to abuse

 

Fair comment.

 

There may be scope, but it's a shark-infested custard!

Edited November 6, 2018 by Ferdinand

[Randomiser]

I read the links to the Martin Goodall blog with interest, it seems two apply to new legislation that has come in to force after the permission was granted so I presume it is only the 2011 post that is specifically relevant.

 

It was mentioned that it is hard to be generic without more detail of the conditions applied.  I believe 2 would have a bearing.  The first is a general condition that includes two documents relating to the trees:

"The development hereby permitted shall be carried out in accordance with the following approved plans unless otherwise agreed in writing with the Local Planning Authority:...

Arboricultural Impact Assessment, Tree Protection Plan"

 

The second relevant condition is much more specific to the tree issue:

"Protective measures, including fencing, ground protection, supervision, working procedures and special engineering solutions shall be carried out strictly in accordance with the Arboricultural Method Statement and Tree Protection Plan. Any deviation from the works prescribed or methods agreed in the report will require prior written approval from the Local Planning Authority."

 

Reflecting on the Martin Goodall blog I assume that these conditions do not come in to effect until development starts, so there is nothing here that stops a tree being taken down.  However, as I read the conditions if the council felt ill disposed to me (as they may if I had just had one or more trees taken out and said, "tough, the development had not started") they could say it does not matter that the tree is no longer there, I would still have to comply with the condition by using the various protective measures even though the tree they were designed to protect is no longer there.  Does that make any sense?

 

It therefore seems to me that unless the owner takes down any of the trees before we purchase the site (which I think is highly unlikely), then being seen to be reasonable by the council is the best approach.  One of the restricting trees is a very big one and I am sure would be seen as a bit of a local feature, the other is a fairly ugly specimen that even the tree survey described as being in only fair condition.  So I am thinking that getting the tree surgeon in to see if they would be willing to go on the record saying it would be best to take it down may be the best approach.

 

Randomiser

 

[Ferdinand]

I think the last paragraph in your comment is sensible.

 

It is something I would be willing to chance my arm at in the right circumstances and context, but to be considered carefully first in all the circumstances.

 

Edited November 6, 2018 by Ferdinand