Definition of tree for planning purposes
Tree preservation orders (TPO’s) can be used to prohibit the cutting down, uprooting, topping, lopping, willful damage to, or willful destruction of protected trees or woodlands. This applies to roots as well as stems and branches.
In addition, in conservation areas, the cutting down, lopping or topping of trees must be notified to the local authority 6 weeks in advance so they can consider whether the tree contributes to the character of the conservation area and whether to impose a tree preservation order.
However, in the case of protected areas, rather than specifically identified trees, or in the case of conservation areas, this raises the question as to what precisely constitutes a tree?
In the case of Palm Developments Ltd v Secretary of State for Communities and Local Government in 2009, Mr Justice Cranston took an amazing 12,000 words to consider the issue. He decided that “There is no statutory definition of a tree. I conclude that with tree preservation orders there are no limitations in terms of size for what is to be treated as a tree. In other words, saplings are trees… “Tree” must therefore mean anything that would ordinarily be regarded as a tree. Thus it would not include a shrub, a bush or scrub.”
This represents a change from a previous judgment by Lord Denning MR in the Batchelor case, who concluded “..many saplings were not trees and would need to be of over 180-200mm diameter before they could be…”.
However, despite the very broad interpretation by Mr Justice Cranston a number of exceptions are set out in The Town and Country Planning (Tree Preservation)(England) Regulations 2012.
In relation to trees preservation orders, exceptions apply to:
- Dead trees.
- Where works are required on the operational land of a statutory undertaker.
- For national security reasons.
- Fruit trees that are part of a business.
- In relation to the implementation of a planning permission.
- At the request of the Environment Agency or a drainage body.
- Works required for safety.
See http://www.legislation.gov.uk/uksi/2012/605/regulation/14/made for more information.
In relation to conservation areas, exceptions apply to:
The cutting down or uprooting:
- of a tree whose diameter does not exceed 75 millimetres; or
- where carried out for the sole purpose of improving the growth of other trees, of a tree whose diameter does not exceed 100 millimetres; or
The topping or lopping of a tree whose diameter does not exceed 75 millimetres.
For the purpose of this regulation:
- where a tree has more than one stem at a point 1.5 metres above the natural ground level its diameter shall be treated … as exceeding 75 millimetres or 100 millimetres respectively, if any stem when measured over its bark at that point exceeds 75 millimetres or 100 millimetres respectively; and
- In any other case, the diameter of a tree shall be ascertained by measurement, over the bark of the tree, at a point 1.5 metres above the natural ground level.
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