Statutory Instruments 1999 No. 1892
The Town and Country Planning (Trees) Regulations 1999
- continued

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Applications for consent under the Order
     6. An application for consent to the cutting down, topping, lopping or uprooting of any tree in respect of which this Order is for the time being in force shall be made in writing to the authority and shall - 

    (a) identify the tree or trees to which it relates (if necessary, by reference to a plan);

    (b) specify the work for which consent is sought; and

    (c) contain a statement of the applicant's reasons for making the application.

Application of provisions of the Town and Country Planning Act 1990
     7.  - (1) The provisions of the Town and Country Planning Act 1990 relating to registers, applications, permissions and appeals mentioned in column (1) of Part I of Schedule 2 to this Order shall have effect, in relation to consents under this Order and applications for such consent, subject to the adaptations and modifications mentioned in column (2).

    (2) The provisions referred to in paragraph (1), as so adapted and modified, are set out in Part II of that Schedule.

Directions as to replanting
     8.  - (1) Where consent is granted under this Order for the felling in the course of forestry operations of any part of a woodland area, the authority may give to the owner of the land on which that part is situated ("the relevant land") a direction in writing specifying the manner in which and the time within which he shall replant the relevant land.

    (2) Where a direction is given under paragraph (1) and trees on the relevant land are felled (pursuant to the consent), the owner of that land shall replant it in accordance with the direction.

    (3) A direction under paragraph (1) may include requirements as to - 

    (a) species;

    (b) number of trees per hectare;

    (c) the preparation of the relevant land prior to the replanting; and

    (d) the erection of fencing necessary for the protection of the newly planted trees.

Compensation
     9.  - (1) If, on a claim under this article, a person establishes that loss or damage has been caused or incurred in consequence of - 

    (a) the refusal of any consent required under this Order; or

    (b) the grant of any such consent subject to conditions,

he shall, subject to paragraphs (3) and (4), be entitled to compensation from the authority.

    (2) No claim, other than a claim made under paragraph (3), may be made under this article - 

    (a) if more than 12 months have elapsed since the date of the authority's decision or, where such a decision is the subject of an appeal to the Secretary of State, the date of the final determination of the appeal; or

    (b) if the amount in respect of which the claim would otherwise have been made is less than £500.

    (3) Where the authority refuse consent under this Order for the felling in the course of forestry operations of any part of a woodland area, they shall not be required to pay compensation to any person other than the owner of the land; and such compensation shall be limited to an amount equal to any depreciation in the value of the trees which is attributable to deterioration in the quality of the timber in consequence of the refusal.

    (4) In any other case, no compensation shall be payable to a person - 

    (a) for loss of development value or other diminution in the value of the land;

    (b) for loss or damage which, having regard to the statement of reasons submitted in accordance with article 6(c) and any documents or other evidence submitted in support of any such statement, was not reasonably foreseeable when consent was refused or was granted subject to conditions;

    (c) for loss or damage reasonably foreseeable by that person and attributable to his failure to take reasonable steps to avert the loss or damage or to mitigate its extent; or

    (d) for costs incurred in appealing to the Secretary of State against the refusal of any consent required under this Order or the grant of any such consent subject to conditions.

    (5) Subsections (3) to (5) of section 11 (terms of compensation on refusal of licence) of the Forestry Act 1967 shall apply to the assessment of compensation under paragraph (3) as it applies to the assessment of compensation where a felling licence is refused under section 10 (application for felling licence and decision of Commissioners thereon) of that Act as if for any reference to a felling licence there were substituted a reference to a consent required under this Order and for the reference to the Commissioners there were substituted a reference to the authority.

    (6) In this article - 

    "development value" means an increase in value attributable to the prospect of development; and, in relation to any land, the development of it shall include the clearing of it; and

    "owner" has the meaning given to it by section 34 of the Forestry Act 1967.

[Application to trees to be planted pursuant to a condition
     [10.] In relation to the tree[s] identified in the first column of Schedule 1 by the letter "C", being [a tree] [trees] to be planted pursuant to a condition (being a condition imposed under paragraph (a) of section 197 (planning permission to include appropriate provision for preservation and planting of trees)), this Order takes effect as from the time when [that tree is planted] [those trees are planted].]

[Orders made by virtue of section 300
     [11.] This Order takes effect in accordance with subsection (3) of section 300 (tree preservation orders in anticipation of disposal of Crown land).]

Dated this [    ] day of [insert month and year]

[if the Council's Standing Orders require the sealing of such documents:]

[The Common Seal of the [insert name of Council]

was hereunto affixed in the presence of - 


]

[if the Council's Standing Orders do not require the sealing of such documents:]

[Signed on behalf of the [insert name of Council]




Authorised by the Council to sign in that behalf]

[CONFIRMATION OF ORDER

[This Order was confirmed by the [insert name of Council] without modification on the [    ] day of [insert month and year]

OR

[This Order was confirmed by the [insert name of Council], subject to the modifications indicated by [state how indicated], on the [    ] day of [insert month and year]




Authorised by the Council to sign in that behalf]

[DECISION NOT TO CONFIRM ORDER

[A decision not to confirm this Order was taken by [insert name of Council] on the [    ] day of [insert month and year]




Authorised by the Council to sign in that behalf]

[VARIATION OF ORDER

[This Order was varied by the [insert name of Council] on the [    ] day of [insert month and year] under the reference number [insert reference number of the variation order]




Authorised by the Council to sign in that behalf]

[REVOCATION OF ORDER

[This Order was revoked by the [insert name of Council] on the [    ] day of [insert month and year] under the reference number [insert reference number of the revocation order]




Authorised by the Council to sign in that behalf]



SCHEDULE 1
Article 4


SPECIFICATION OF TREES


Trees specified individually
(encircled in black on the map)

Reference on map Description Situation
[T1] [ash] [complete if necessary to specify more precisely the position of the trees]

Trees specified by reference to an area
(within a dotted black line on the map)

Reference on map Description Situation
[A1] [trees (of whatever species) within the area marked A1 on the map] [complete if necessary to specify more precisely the position of the trees]
[A2] [the ash, beech, larch and oak trees within the area marked A2 on the map] [complete if necessary to specify more precisely the position of the trees]

Groups of trees
(within a broken line on the map)

Reference on map Description (including number of trees in the group) Situation
[G1] [2 ash trees, 3 elm trees and 3 oak trees] [complete if necessary to specify more precisely the position of the trees]

Woodlands
(within a continuous black line on the map)

Reference on map Description Situation
[W1] [mixed hardwoods (mainly     )] [complete if necessary to specify more precisely the position of the trees]
[W2] [mixed conifers and deciduous trees (mainly     )]  



SCHEDULE 2
Article 7



PART I

Provisions of the Town and Country Planning Act 1990 applied with adaptations or modifications

Provision of the Town and Country Planning Act 1990 Adaptation or Modification
Section 69 (registers) (a) In subsection (1) - 

    (i) omit - 

    ", in such manner as may be prescribed by a development order,",

    "such" in the second place where it appears, and

    "as may be so prescribed"; and

    (ii) substitute "matters relevant to tree preservation orders made by the authority" for "applications for planning permission".

(b) In subsection (2) - 

    (i) after "contain" insert ", as regards each such order"; and

    (ii) for paragraphs (a) and (b) substitute - 

" (a) details of every application under the order and of the authority's decision (if any) in relation to each such application, and

(b) a statement as to the subject-matter of every appeal under the order and of the date and nature of the Secretary of State's determination of it.".

(c) Omit subsections (3) and (4) (as required by section 198(4)).

Section 70 (determination of applications: general considerations) (a) In subsection (1) - 

    (i) substitute - 

    "Subject to subsections (1A) and (1B), where" for "Where";

    "the authority" for "a local planning authority";

    "consent under a tree preservation order" for "planning permission" where those words first appear; and

    "consent under the order" for "planning permission" in both of the other places where those words appear;

    (ii) after "think fit", insert - 

    " (including conditions limiting the duration of the consent or requiring the replacement of trees)"; and

        (iii) omit "subject to sections 91 and 92,".

      (b) After subsection (1) insert - 

        " (1A) Where an application relates to an area of woodland, the authority shall grant consent so far as accords with the practice of good forestry, unless they are satisfied that the granting of consent would fail to secure the maintenance of the special character of the woodland or the woodland character of the area.

        (1B) Where the authority grant consent for the felling of trees in a woodland area they shall not impose conditions requiring replacement where such felling is carried out in the course of forestry operations (but may give directions for securing replanting).".

      (c) Omit subsections (2) and (3).

Section 75 (effect of planning permission) (a) In subsection (1) substitute - 

    (i) "Any" for the words from "Without" to "any";

    (ii) "consent under a tree preservation order" for "planning permission to develop land";

    (iii) "the consent" for "the permission"; and

    (iv) "the land to which the order relates" for "the land".

(b) Omit subsections (2) and (3).

Section 78 (right to appeal against planning decisions and failure to take such decisions) (a) In subsection (1) substitute - 

    (i) "the authority" for "a local planning authority";

    (ii) "consent under a tree preservation order" for "planning permission" in the first place where those words appear;

    (iii) "consent under such an order" for "planning permission" in the second place where those words appear;

    (iv) for paragraph (c) substitute - 

" (c) give a direction under a tree preservation order, or refuse an application for any consent, agreement or approval of that authority required by such a direction; or

(d) fail to determine any such application as is referred to in paragraphs (a) to (c) within the period of 8 weeks beginning with the date on which the application was received by the authority,".

(b) Omit subsection (2).

(c) In subsection (3) for "served within such time and in such manner as may be prescribed by a development order." substitute - 

" in writing addressed to the Secretary of State, specifying the grounds on which the appeal is made; and such notice shall be served - 

    (a) in respect of a matter mentioned in any of paragraphs (a) to (c) of subsection (1), within the period of 28 days from the receipt of notification of the authority's decision or direction or within such longer period as the Secretary of State may allow;

    (b) in respect of such a failure as is mentioned in paragraph (d) of that subsection, at any time after the expiration of the period mentioned in that paragraph, but if the authority have informed the applicant that the application has been refused, or granted subject to conditions, before an appeal has been made, an appeal may only be made against that refusal or grant.".

    (d) For subsection (4), substitute - 

    " (4) The appellant shall serve on the authority a copy of the notice mentioned in subsection (3).".

    (e) For subsection (5), substitute - 

    " (5) For the purposes of the application of section 79(1), in relation to an appeal made under subsection (1)(d), it shall be assumed that the authority decided to refuse the application in question.".

Section 79 (determination of appeals)[24] (a) In subsections (1) and (2), substitute "the authority" for "the local planning authority".

(b) Omit subsection (3).

(c) In subsection (4), substitute - 

    (i) "section 70(1), (1A) and (1B)" for "sections 70, 72(1) and (5), 73 and 73A and Part I of Schedule 5";

    (ii) "consent under a tree preservation order" for "planning permission"; and

    (iii) "the authority." for "the local planning authority and a development order may apply, with or without modifications, to such an appeal any requirements imposed by a development order by virtue of section 65 or 71.".

(d) Omit subsections (6) and (6A).

(e) In subsection (7), omit the words after "section 78".




PART II

PROVISIONS OF THE TOWN AND COUNTRY PLANNING ACT 1990, AS ADAPTED AND MODIFIED BY PART I

The following provisions of the Town and Country Planning Act 1990, as adapted and modified by Part I of this Schedule, apply in relation to consents, and applications for consent, under this Order.

Section 69
    (1) Every local planning authority shall keep a register containing information with respect to matters relevant to tree preservation orders made by the authority.

    (2) The register shall contain, as regards each such order - 

    (a) details of every application under the order and of the authority's decision (if any) in relation to each such application, and

    (b) a statement as to the subject-matter of every appeal under the order and of the date and nature of the Secretary of State's determination of it.


    (5) Every register kept under this section shall be available for inspection by the public at all reasonable hours.

Section 70
    (1) Subject to subsections (1A) and (1B), where an application is made to the authority for consent under a tree preservation order - 

    (a) they may grant consent under the order, either unconditionally or subject to such conditions as they think fit (including conditions limiting the duration of the consent or requiring the replacement of trees); or

    (b) they may refuse consent under the order.

    (1A) Where an application relates to an area of woodland, the authority shall grant consent so far as accords with the practice of good forestry, unless they are satisfied that the granting of consent would fail to secure the maintenance of the special character of the woodland or the woodland character of the area.

    (1B) Where the authority grant consent for the felling of trees in a woodland area they shall not impose conditions requiring replacement where such felling is carried out in the course of forestry operations (but may give directions for securing replanting).


Section 75
Any grant of consent under a tree preservation order shall (except in so far as the consent otherwise provides) enure for the benefit of the land to which the order relates and of all persons for the time being interested in it.


Section 78
    (1) Where the authority - 

    (a) refuse an application for consent under a tree preservation order or grant it subject to conditions;

    (b) refuse an application for any consent, agreement or approval of that authority required by a condition imposed on a grant of consent under such an order or grant it subject to conditions;

    (c) give a direction under a tree preservation order, or refuse an application for any consent, agreement or approval of that authority required by such a direction; or

    (d) fail to determine any such application as is referred to in paragraphs (a) to (c) within the period of 8 weeks beginning with the date on which the application was received by the authority,

the applicant may by notice appeal to the Secretary of State.


    (3) Any appeal under this section shall be made by notice in writing addressed to the Secretary of State, specifying the grounds on which the appeal is made; and such notice shall be served - 

    (a) in respect of a matter mentioned in any of paragraphs (a) to (c) of subsection (1), within the period of 28 days from the receipt of notification of the authority's decision or direction or within such longer period as the Secretary of State may allow;

    (b) in respect of such a failure as is mentioned in paragraph (d) of that subsection, at any time after the expiration of the period mentioned in that paragraph, but if the authority have informed the applicant that the application has been refused, or granted subject to conditions, before an appeal has been made, an appeal may only be made against that refusal or grant.

    (4) The appellant shall serve on the authority a copy of the notice mentioned in subsection (3).

    (5) For the purposes of the application of section 79(1), in relation to an appeal made under subsection (1)(d), it shall be assumed that the authority decided to refuse the application in question.

Section 79
    (1) On an appeal under section 78 the Secretary of State may - 

    (a) allow or dismiss the appeal, or

    (b) reverse or vary any part of the decision of the authority (whether the appeal relates to that part of it or not),

and may deal with the application as if it had been made to him in the first instance.

    (2) Before determining an appeal under section 78 the Secretary of State shall, if either the appellant or the authority so wish, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.


    (4) Subject to subsection (2), the provisions of section 70(1), (1A) and (1B) shall apply, with any necessary modifications, in relation to an appeal to the Secretary of State under section 78 as they apply in relation to an application for consent under a tree preservation order which falls to be determined by the authority.

    (5) The decision of the Secretary of State on such an appeal shall be final.


    (7) Schedule 6 applies to appeals under section 78.



EXPLANATORY NOTE

(This note is not part of the Regulations)


These Regulations replace the Town and Country Planning (Tree Preservation Order) Regulations 1969 and the Town and Country Planning (Tree Preservation Order) (Amendment) and (Trees in Conservation Areas) (Exempted Cases) Regulations 1975. They also amend the Town and Country Planning General Regulations 1992.

Part I of the Regulations defines terms used in the Regulations.

Part II prescribes the form of tree preservation orders and the procedure for their making, confirmation, variation and revocation. The prescribed form is set out in the Schedule to the Regulations.

Unless the works proposed are exempted by virtue of section 198(6) or (7) or section 200(3) of the Town and Country Planning Act 1990 or article 5 of the Order, the consent of the local planning authority is required before any tree protected by the Order may be cut down, topped, lopped, uprooted, damaged or destroyed.

The exemptions for which section 198(6) provides relate to the cutting down, uprooting, topping or lopping of trees which are dying, dead or have become dangerous, or the undertaking of those acts in compliance with obligations imposed by or under an Act of Parliament or so far as may be necessary for the prevention or abatement of a nuisance.

Section 198(7) provides exemptions relevant to section 39(2) of the Housing and Planning Act 1986 (c.63) (saving for effect of section 2(4) of the Opencast Coal Act 1958 on land affected by a tree preservation order despite its repeal) and section 15 of the Forestry Act 1967 (c.10) (licences under that Act to fell trees comprised in a tree preservation order).

Section 200(3) provides exemptions for the cutting down of a tree in relation to land where a plan of operations, or other working plan, has been approved by the Forestry Commissioners under a forestry dedication covenant, or under the conditions of a grant or loan made under section 1 of the Forestry Act 1979 (c.21).

Article 9 of the prescribed form provides for compensation in respect of the refusal of consents or the grant of consents subject to conditions. (Compensation arising from replanting directions is provided for by section 204 of The Town and Country Planning Act 1990.)

Part I of Schedule 2 to the prescribed form sets out adaptations and modifications to provisions of the Town and Country Planning Act 1990 which are applied by article 7 of the Order, and Part II of that Schedule sets out the provisions as they appear in consequence of those adaptations and modifications.

Part III of the Regulations makes special provision in relation to trees in conservation areas.

Part IV of the Regulations prescribes the procedure to be followed if an appeal in respect of an application made under a tree preservation order is to be disposed of without an inquiry or hearing. It provides for the submission of, and the opportunity to comment on, written representations by the appellant and the authority within prescribed time limits, and for the determination of appeals on the basis of the representations submitted within the prescribed time limits.

Regulation 17 in Part V amends the Town and Country Planning General Regulations 1992. The effect of the new provisions is that a local planning authority no longer has to apply to the Secretary of State for consent for the carrying out of certain works in relation to trees protected by a tree preservation order on land which it owns. The authority may authorise the carrying out of the works provided that the decision is taken by members or officers who are not directly involved with the management of the land to which the application for consent relates. New regulation 11A provides for publicity for applications, for the consideration of representations before a decision is made and for informing those who made representations of the authority's decision.

Regulation 18 revokes, with savings, the Town and Country Planning (Tree Preservation Order) Regulations 1969, the Town and Country Planning (Tree Preservation Order) (Amendment) and (Trees in Conservation Areas) (Exempted Cases) Regulations 1975, the Town and Country Planning (Tree Preservation Order) (Amendment) Regulations 1981, the Town and Country Planning (Tree Preservation Order) (Amendment) Regulations 1988 and so much of the Electricity Act 1989 (Consequential Modifications of Subordinate Legislation) Order 1990 as relates to the Town and Country Planning (Tree Preservation Order) Regulations 1969.


Notes:

[24] Section 79 was amended by the Planning and Compensation Act 1991 (c.34), section 18 and Schedule 7, paragraph 19.back



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