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Publication - Correspondence

Scottish Planning Series: Planning Circular 1 2011: Tree Preservation Orders

Published
1 February 2011
ISBN
9780755999781

This Circular and attached annex set out Scottish Government Policy onTPOs and trees in conservation areas contained in the Town and Country Planning(Scotland) Act 1997, as amended by the Planning etc. (Scotland) Act 2006 and theTown and Country Planning

View supporting documents Supporting documents

TREE PRESERVATION ORDERS

Power to make Tree Preservation Orders 2

4. A planning authority may make a TPO if it appears to them to be :

  • expedient in the interest of amenity and/or,
  • that the trees, groups of trees or woodlands are of cultural or historical significance.

Power For Scottish Ministers to make TPOs 3

5. If it appears to Scottish Ministers that it is expedient that a TPO, or a variation or revocation Order, should be made, they may make such an Order.

6. Scottish Ministers are only likely to use this power in exceptional circumstances where national issues of importance are raised.

Making the TPO

7. Section 160 (1) of the 1997 Act gives planning authorities powers to make TPOs and section 160 (3) sets out what provisions a TPO may include.

8. The Scottish Government's preferred Model Order is contained within Annex A.

9. The Town and Country Planning (Tree Preservation Order and Trees in Conservation Areas (Scotland) Regulations 2010 make provision for the form of a TPO and the procedure to be followed when making and confirming a TPO. Regulation 3 requires that a TPO must define the position of the trees to which it relates by means of a map. The map must be to a scale which is sufficient to give a clear indication of the position of the trees. In terms of section 161 (2) a confirmed TPO must be recorded in the Register of Sasines or registered in the Land Register of Scotland. Land Register applications need to be identifiable on the Ordnance Survey Map and any deed presented for registration in either the Register of Sasines or the Land Registers should also meet this criteria.

10. A TPO will take effect on a date that is specified in the order, but will expire within a period of 6 months after this date if it has not been confirmed by the planning authority within that 6 month period. 4

11. A TPO may also be made for any trees to be planted in compliance with a condition of planning permission. The TPO will apply from the time that the trees are planted. 5

Procedures and Representations

12. A planning authority must as soon as may be after making the TPO 6 -

  • make a copy of the TPO available for public inspection at a convenient place to the locality in which the affected trees are situated;
  • give notice of the TPO in a newspaper circulating in the locality including a statement with the following information:
    • the grounds for making the TPO;
    • where and what times a copy of the TPO may be inspected;
    • how representations may be made to the planning authority; and
    • the date by which any representations are to be received (this must be at least 28 days after the date of the notice).
  • send a copy of the TPO to the Forestry Commission; and
  • send a copy of the TPO to all interested persons together with a notice containing the information contained within the newspaper notice.

13. Any person may make a representation on the TPO. 7 Every representation shall be made in writing, state the grounds of the representation and specify the particular trees to which it relates. The planning authority must consider any representations before confirming a TPO.

Confirming the TPO

14. The planning authority may confirm the TPO either: 8

  • without modification; or
  • subject to such modifications as they consider expedient.

15. As soon as a TPO is confirmed, the planning authority are required to record it in the appropriate Register of Sasines or register it in the Land Register of Scotland. 9

16. The Keeper will continue to offer a free service to consider draft TPOs prior to registration in either the Register of Sasines or the Land Register, preferably with a minimum of 10 working days to complete this service.

17. Where the TPO is confirmed, 10 it must be endorsed to that effect including an indication of whether the order was confirmed with or without modifications and the date.

18. As soon as possible after confirming the order the planning authority must give notice to:

  • the Forestry Commission;
  • interested persons; and
  • any person who made a representation.

19. The following are interested persons - 11

a. An owner, lessee and occupier of the land on which the trees groups of trees or woodlands to which the TPO relates are situated

b. Any other person who to the knowledge of the planning authority, would but for the TPO be entitled -

i. to fell, top, lop, uproot or otherwise damage or destroy any tree to which the tree preservation order relates; or

ii. to work by surface working any material in, on or under such land.

20. The notice is to state the date and reasons for the confirmation of the TPO. Where modifications were made, it is to state the reasons for this and where and at what times a copy of the TPO can be inspected. Where the order is modified then a copy of the TPO requires to be attached to the notice served on the Forestry Commission and interested persons.

21. The planning authority must make a copy of the TPO available for public inspection in a place convenient to the locality of the affected trees and free of charge at all reasonable hours at the office of the planning authority.

Action where TPO is not confirmed

22. Where a planning authority decides not to confirm a TPO 12 it must as soon as is practicable:

  • endorse the TPO with a statement to that effect with the date of the decision; and
  • give notice of its decision to:
    • the Forestry Commission;
    • interested persons; and
    • any person who made a representation.

Varying and Revoking Orders

23. Section 275(8) of the 1997 Act makes it clear that planning authorities may vary and revoke TPOs by making another order.

24. A revocation order is a TPO which revokes another TPO whilst a variation order is a TPO which varies another TPO. 13

25. The procedures for making and confirming either a variation or revocation order are essentially the same procedures that are used for making and confirming a TPO.

26. There is no requirement to provide a map for revocation or variation Orders where trees are being removed from the original Order, 14 however this does not prohibit the use of a map where it is thought to be of assistance.

27. Where a variation or revocation Order is confirmed the planning authority must endorse the original Order with a statement to that effect, specifying the date and title of the variation or revocation order. 15

28. Where a revocation Order is confirmed the planning authority must withdraw from public inspection the copy of the original Order. 16

Offences and Penalties

29. It is an offence 17 for any person in contravention of a TPO to cut down, uproot, wilfully destroy a tree or wilfully damage, top or lop a tree in such manner as to be likely to destroy it without the consent of the planning authority.

30. A person guilty of an offence shall be liable on summary conviction to a fine not exceeding £20,000 and on conviction of indictment to a fine.

Applications for consent

31. Section 28(2)(c) of the 2006 Act provides Scottish Ministers with powers to determine the form and manner of applications for consent under a TPO.

32. The Regulations require 18 that the application must be made to the planning authority specifying the operations for which consent is sought, the reasons for such operations and must identify by means of a map or plan (of sufficient size and scale) the protected trees that would be affected.

33. Applications for consent may be made by using the ePlanning system. Information and guidance on the use of the ePlanning system is available at https://eplanning.scotland.gov.uk/WAM/.

Exemptions

34. A TPO may make exemptions 19 to the prohibition of cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees except with the consent of the planning authority.

35. The Model Order ( Annex A) provides a list of suggested exemptions.

36. Without prejudice to any other exemptions made by the TPO, nothing in the TPO shall prohibit the uprooting, felling or lopping of trees if : 20

  • it is urgently necessary in the interests of safety
  • it is necessary for the prevention or abatement of a nuisance 21
  • it is in compliance with any obligation imposed under an Act of Parliament or an Act of the Scottish Parliament,

so long as notice in writing of the proposed operations is given to the planning authority as soon as practicable after the operations become necessary.

37. Section 162 of the Act 22 sets out the exemptions for the Forestry Commission.

38. Although not a requirement of legislation, Scottish Government Policy is that consent under the order should not be required where full planning permission has been granted that involves works to trees. This is reflected in the exemptions in the Model Order contained within Annex A.

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