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Economy, Planning and Regulation

Stirling Council Local Development Plan

September 2012

Proposed Supplementary Guidance SG32

Trees and the Law

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CONTENTS

1. Introduction 5

2. Tree Officer 5

3. Catogories of Protected Trees 7

3.2 Tree Preservation Orders 7 3.3 Conservation Areas 9 3.4 Trees Protected by planning conditions 10

4. Other Legal Matters 11

4.1 Responsability for Tree Care and Management 11 4.2 Overhanging branches 12 4.3 Protected Species 14 4.4 Felling Licences 14 4.5 Tree Work 15

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Proposed Supplementary Guidance SG32

Trees and the Law

1.0 Introduction

1.1 Trees and woodlands contribute greatly to local amenity and the quality of the natural and historic environment. They benefit biodiversity by providing food and shelter for wildlife and also have a wide ranging and pivotal role in mitigating the effects of climate change. They can also be significant local landmarks and have strong associations with historic characters and events.

1.2 In recognition of their inherent visual and ecological value planning legislation provides the Council with various duties and powers to protect trees and woodlands from unnecessary felling and inappropriate or detrimental tree maintenance work.

2.0 Tree Officer

2.1 In support of these duties and powers the Council employs a Tree Officer, currently on a part time basis. Services include advice on protected trees and trees generally, processing of applications for tree work, management of the Tree Preservation Order (TPO) Register, making of new TPO's, advice on tree surveys associated with proposals for new development and site monitoring during the construction phase.

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3.0 Categories of Protected Trees

3.1 Trees and woodlands are protected in three different ways:-

1. Tree Preservation Orders

2. Conservation Areas

3. Planning Conditions

Further information on each category is set out below.

3.2 Tree Preservation Orders

Local Councils can make, manage and enforce Tree Preservation Orders (TPO’s)

under powers set out in section 160 of the Town and Country Planning (Scotland) Act 1997 and in the Town and Country Planning (Tree Preservation Order and Trees in Conservation Areas) (Scotland) Regulations 2010 (the 2010 Regulations).

Effect of a TPO

If trees or woodlands are protected by a TPO then the prior written consent is required

from the Council before carrying out tree works. Advice on application procedures

can be obtained from the Tree Officer. An owner wishing to carry out any tree works,

or arrange for such works to be done, must complete the relevant application form,

including a description of each tree and a location plan, details of the proposed works

and a supporting justification. In most cases, and particularly in respect of proposals

for outright felling and/or extensive pruning and lopping works, the application must

be supported by a tree survey carried out by a competent arboricultual consultant or

contractor. The Tree Officer will then make a site inspection and assess the proposed works,

usually within 6 weeks of receipt of the application, and will respond to advise of the final decision.

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Locations of TPO’s Stirling Council maintains a register of TPO’s, which includes details of their boundaries,

the date of confirmation and summary information about the number and species of trees. Please contact the Tree Officer to confirm whether land or buildings are within the area of a TPO.

Penalties for Contravening a TPO It is an offence to contravene a TPO by cutting down, uprooting, or wilfully destroying

or wilfully damaging, topping or lopping a tree without the necessary consent of the Council. A person guilty of such an offence shall be liable, on summary conviction, to a fine not exceeding £20,000 or, on conviction of indictment, to a fine.

The landowner is also under a duty to replace trees or woodlands removed in contravention of a TPO, and the Council can initiate formal enforcement action if the required works are not carried out.

Appeals An appeal can be made to Scottish Ministers following the refusal of an application

to cut down or carry out works to trees. An appeal can also be made against a notice requiring the replacement of trees.

New TPO’s The Council has a duty to review existing TPO’s and also look at potential new

TPO’s, for example as may be suggested by local residents and interest groups. Key considerations will be arboricultural value and whether they are potentially affected by development proposals or other forms of unnecessary or wanton felling. TPO’s can also be made, where necessary, in association with the grant of planning permission.

The procedures for making a TPO are set out in the 2010 Regulations. Any person may make a representation on a TPO, and these must be taken into account by the Council before the TPO is confirmed. There is no right of appeal against a TPO, either when made or confirmed.

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3.3 Conservation Areas

Conservation areas (CA’s) are defined as “...areas of special architectural or historical interest the character or appearance of which it is desirable to preserve or enhance.” In Stirling they range from the historic city centre, to the Victorian quarters of Dunblane and Bridge of Allan, to the historic cores of rural villages. The Council has a duty, when exercising its powers, to pay special attention to the desirability of preserving or enhancing the character and appearance of an CA.

These powers include a requirement to give the Council a minimum of six weeks notice prior to cutting down or carrying out work on a tree in a CA. The notification should include information similar to that submitted in support of works to trees and woodlands protected by a TPO.

Exemptions to the requirement to give prior notice include for work on a tree with a diameter not exceeding 75 millimetres at 1.5 metres high (or where the tree is in a woodland, 100 millimetres) where this is done to improve the growth of other trees.

The Council can respond to the notification in one of three ways.

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

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

3. Decide not to make a TPO and allow the six week period to expire, after which the proposed work may go ahead.

Whilst the Council cannot either refuse consent or grant consent subject to conditions, it will nevertheless seek to discuss proposed works if there are concerns they cannot be properly justified on arboricultural grounds and/or are detrimental to the character and appearance of the CA.

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Penalties It is an offence to cut down or carry out work on a tree in a CA without giving six

weeks prior notification. A person guilty of such an offence shall be liable, on summary conviction, to a fine not exceeding £20,000 or, on conviction of indictment, to a fine.

The landowner is also under a duty to replace trees or woodlands removed in contravention of the regulations.

3.4 Trees protected by planning conditions

When granting planning permission the Council can impose conditions for the

preservation or planting of trees. If you are considering working on or felling trees in

or around a new or recently constructed development, including house extensions and

outbuildings such as garages, please contact the Council’s Tree Officer to check if they

are protected by a planning condition or TPO. Unauthorised works may be prosecuted

under planning enforcement legislation.

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4.0 Other Legal Matters

4.1 Responsibility for Tree Care and Management

Tree care and management is normally the responsibility of the owner of the land upon which they are situated. The landowner also has a duty of care to ensure a tree is not likely cause damage or injury as a consequence of, for example, general decline, disease or storm damage. It is therefore advisable to regularly inspect the condition of trees (including for signs of dieback, general lack of vigour, fungal infection and structural defects) and, where necessary, seek the advice of competent arboricultural consultant or contractor. The Arboricultural Association leaflet – “An Introduction to Trees and their Management” provides general guidance on common aspects of tree management for members of the public who own or have an interest in trees, and can be found on this web link:- http://www.trees.org.uk/publications/General-tree-care-guides.

Where trees are situated on or immediately adjacent to a property boundary then they may be deemed to be mutually owned by the adjoining property owners who will then have shared responsibility for tree care and management.

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4.2 Overhanging branches

Overhanging branches may be cut back to the mutual boundary with the land upon

which they are situated. The following matters should be kept in mind:-

i) Check if the tree is protected under the above mentioned categories. If so then,

prior to any work taking place, the appropriate consent procedures must be

followed, and the same penalties may be imposed with respect unauthorised

works.

ii) If practicable consult with the tree owner before commencing work. You may

not enter a neighbouring property, either at or below ground level or over the ‘air

space’, without the owner’s consent. Cut branches will belong to the tree owner.

iii) Consider the arboricultural implications of the proposed works. Significant

pruning and lopping work up to the mutual boundary may result in a structurally

unbalanced tree, and truncated limbs and branches not in accordance with good

arboricultural practice and detrimental to both the health and appearance of the

tree. The tree may, as a consequence, be weakened and more prone to failure

and disease. Where the tree is protected then these considerations may result

in the refusal of consent. A programme of works agreed in advance with the tree

owner and in accordance with good arboricultural practice may help to address

these concerns.

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4.3 Protected species

Consideration should be given to the implications of tree works on any protected species.

For example it is an offence to take, damage, destroy or interfere with a nest of any wild bird whilst it is in use or being built. Bats are also protected and all species are known to use trees as roosts. Sometimes these roost sites can be conspicuous, but often they are difficult to see. Roosts may only be used at certain times of the year and it may not always be able to see bats. Consequently care needs to be taken to make sure that if a tree is to be felled, cut or lopped or if branches are to be removed, a bat roost isn't present.

Further advice is available from the Scottish Natural Heritage website, via this link:- http://www.snh.gov.uk/protecting-scotlands-nature/protected-species. The following documents are also available for purchase from the Arboricultural Association, via this link:- http://www.trees.org.uk/publications/Guides

AA Guidance Note 1, Bats in the Context of Tree Work Operations (2011 - 3rd. ed) AA Guidance Note 10, Protected Species and Arboriculture (2010 - 1st. ed.)

4.4 Felling Licences

If you wish to fell trees, whether protected or not, you may still need a ‘felling licence’ from the Forestry Commission. This generally applies to proposals fell more than 5 cubic metres of timber in any quarter (approximately two large, mature trees), and the trees are outwith a garden, public park, orchard or graveyard. Replanting conditions are generally imposed and illegal works may result in prosecution.

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4.5 Tree Work

Tree work can be very dangerous. The Arboricultural Association advise that tree work should only be undertaken by well trained, competent arborists experienced at the type of work being undertaken.

ill-conceived and badly executed tree work can lead to:- i) Injury to people, ii) Damage to property, iii) Serious damage to trees many years in the making. There may also be a legal liability if a third party is affected.

Their leaflet “Tree Work – Choosing your Arborist “can be found on this web link:- http://www.trees.org.uk/publications/General-tree-care-guides, and includes the following checklist:-

1. Are they insured? 2. Do they work to British Standard BS 3998:2010 - Tree Work ? 3. What qualifications do they hold? 4. Will they provide a written quotation? 5. Are they members of a professional organisation? 6. Can they provide referees and examples of their work?

The purpose of this supplementary guidance is to give general advice on the law relating to trees. Stirling Council takes no responsibility for any omissions or misrepresentation contained within it.

16 Stirling Council Viewforth Stirling FK8 2ET

email: info@stirling.gov.uk text: 0771 799 0001 phone: 0845 277 7000 web: www.stirling.gov.uk

If you need help or this information supplied in an alternative format please call 0845 277 700.

Further Information

Please contact:

Economy, Planning and Regulation Planning Services Stirling Council Viewforth Stirling FK8 2ET

Telephone: 01786 442522

E-mail: LDP@stirling.gov.uk

www.stirling.gov.uk/localdevplan

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