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

CONSERVATION AREAS

72. The law relating to conservation areas is in Part II of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. Conservation areas are areas of special architectural or historical interest the character or appearance of which it is desirable to preserve or enhance. Their designation provides the basis for the positive management of an area.

73. Trees in conservation areas which are already protected by a TPO are subject to the normal TPO controls. The Act also makes special provision for trees in conservation areas which are not the subject of a TPO. Under Section 172 anyone proposing to cut down or carry out work on a tree in a conservation area is required to give the planning authority six weeks prior notice. The purpose of this requirement is to give the planning authority an opportunity to consider whether a TPO should be made in respect of the tree. Any notified works must be carried out within 2 years from the date of the notice.

Exemptions ⁴³

74. Exemptions to the requirement to give prior notice are set out in Regulation 8. You do not have to give the planning authority six weeks notice:

• for cutting down a tree in accordance with a felling licence granted by the Forestry Commission under the Forestry Act 1967;
• for work on a tree on land in the occupation of a planning authority when this is done by or with the consent of the authority;
• for work on a tree with a diameter not exceeding 75 millimetres (or where the tree is in a woodland, 100 millimetres where this is done to improve the growth of other trees);
• for work on a tree by or on behalf of the Forestry Commission on land placed at its disposal in pursuance of the Forestry Act 1967, or otherwise under its management or supervision;
• for work on a tree by or at the request of a statutory undertaker where the land on which the tree is situated is operational land and the work is necessary:
  • in the interests of the safe operation of the undertaking,
  • in connection with the inspection, repair or renewal of any sewers, mains, pipes, cables or other apparatus of the statutory undertaker, or
  • to enable the statutory undertaker to carry out permitted development;
• for works on a tree cultivated for the production of fruit in course of a business trade;
• for the pruning in accordance with good horticultural practice, of any tree cultivated for the production of fruit;
• for works to a tree where that work is required to enable a person to implement a planning permission other than;
  • an outline planning permission or planning permission in principle, or
  • permitted development rights;

granted on application under Part 3 or section 242 of the Act, or deemed to have been granted;

• for work on a tree by or at the request of the Scottish Environmental Protection Agency to carry out permitted development;
• where the cutting down, topping, lopping or uprooting of a tree if:
  • it is urgently necessary in the interests of safety;
  • it is necessary for the prevention and abatement of a nuisance; or
  • it is in compliance with any obligation imposed by or under enactment

Giving Notice ⁴⁴

75. The six weeks prior notice does not have to be in any particular form. It must however describe the work proposed and include sufficient particulars to identify the trees.

76. The six weeks prior notification 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/.

77. It is important that the prior notification sets out clearly what work is proposed, it may be helpful for applicants to discuss their ideas with a tree officer within the planning authority. If the planning authority receives a vague prior notification it is advised to seek clarification from the person that submitted it.

What the Planning Authority can do ⁴⁵

78. The planning authority can deal with a six week prior notification in one of three ways. It may:

1. Make a TPO if justified in the interests of amenity and/or for cultural or historical significance (The proposal would then have to be the subject of a formal application under the TPO);

2. Decide not to make a TPO and allow the six week period to expire, at which point the proposed work may go ahead as long as it is carried out within two years from the date of the notice; or

3. Decide not to make a TPO and inform the applicant that the work can go ahead.

79. The planning authority cannot refuse consent or grant consent subject to conditions. This is because the prior notification is not an application for consent under a TPO.

Register

80. Section 175 of the Act requires planning authorities to keep available for inspection a register of all prior notifications.

Penalties ⁴⁶

81. Anyone who cuts down, uproots, wilfully destroys a tree or wilfully damages, tops or lops a tree in a conservation area in such a manner as to be likely to destroy it, without giving the six weeks prior notification is guilty of an offence. A person found 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.

Replacement of trees ⁴⁷

82. If a tree in a conservation area is removed, uprooted or destroyed in contravention of section 172 of the Act the landowner is placed under a duty to plant another tree of an appropriate size and species at the same place as soon as he or she reasonably can. The same duty applies if a tree is removed because it is dead, dying or dangerous or because it is causing a nuisance. The duty attaches to subsequent owners of the land, although the planning authority has powers to dispense with the duty.