Jon Heuch, Duramen Consulting
Between February 2018 and March 2019 English councils were sent Freedom of Information requests asking them how many Tree Preservation Orders they administer and the age of their oldest TPO.
The specific question asked was altered during this process, in order to remove any uncertainty over the request. Towards the end of the process, councils were asked to provide a spreadsheet listing their TPOs. With a return rate of 93% it is now possible to estimate that English councils have around 205,000 Tree Preservation Orders (i.e. not including TPOs that have been revoked and those not positively confirmed). A handful of councils report that they still have TPOs predating the 1947 legislation that introduced the current TPO system.
The reason for the requests arose from the revision of the National Planning Policy Framework (NPPF). Since March 2012 the NPPF has provided guidance to local councils to refuse planning applications that could result in the loss or deterioration of irreplaceable habitats such as ancient woodlands and veteran trees. However, the wording for the exception to this rule has been modified over time so that since February 2019 it has required ‘wholly exceptional reasons’ for allowing planning permission that may lead to loss or deterioration, which resulted in various organisations suggesting that veteran trees are now ‘protected’. The reality is that, as many readers will know, without TPO or Conservation Area protection, there is nothing to stop heavy pruning or other damage to veteran trees or the felling of individual veteran trees. There thus seems to be mis-match between a large number of TPOs already served and a policy that places value on veteran trees above all others.
It is my first-hand experience that categorising a tree in a BS5837 survey as ‘veteran’, rather than protecting it, possibly encouraged its pre-emptive removal prior to a planning application being submitted. On the one hand, planning policy has eventually recognised the importance of veteran trees, but on the other, it has provided no new power to prevent pre-emptive tree felling. Furthermore, with long-term budget pressure on local authorities, austerity has clearly had long-term impacts on the number of experienced tree officers. Assessed by personal experience, it has become apparent that various councils are having problems administering their TPOs.
The main findings of the study are as follows:
Since the start of the study a number of councils have merged, but 364 councils were approached to identify how many TPOs they administer. There are 27 non-unitary county councils (those with district/borough councils); 25 of these have no TPOs, and all the TPOs in their areas are served and administered by their respective district/borough councils. However, two – Derbyshire and Leicestershire – still administer their own TPOs. Neither of these counties allows a tree work application to be submitted via the Planning Portal directly, and Leicestershire council’s website provides very little sign of its 274 TPOs. Searches of the relevant district/borough websites within these two counties may not cover the county council TPOs. In total, 339 councils appear to have TPOs, although I await confirmation that the Isles of Scilly has a single TPO, the whole archipelago being a Conservation Area!
There are a number of councils with surprisingly few TPOs. The City of London reports 9, Blackpool 34, Tower Hamlets 57, Tamworth 70, Kettering 81 and Hyndburn 91. At the other end of the spectrum, around 50 report over 1000 TPOs and there are 8 with over 2000 TPOs. The credible record is held by the London Borough of Bromley with 2708, and Charnwood not far behind with 2636. A small number of councils were unable or unwilling to respond to the request, with the jointly administered Adur and Worthing implying that they had better things to do than count their TPOs. I am still awaiting clarification from the council that responded by saying it has 7753 TPOs! It argued that its residents like and demand TPOs, but I calculated that if the council had served 2 TPOs every week since 1947 it would still have fallen short of this number!
As for the oldest TPO, at least 10 planning authorities own up to having TPOs predating the 1947 legislation: Wealden council holds the record of an 85-year-old TPO served in 1935 with others following: Brentwood and Runnymede 1943, North East Derbyshire 1944, Wiltshire and Wycombe 1945, and Chiltern, Ryedale, South Bucks 1946. Six councils have TPOs from 1947, pre-dating the 1948 Regulations. After I pointed out to one tree officer who is responsible for a pre-1948 TPO that Mynors’ book (2nd edition para 21.5.3) reads ‘it must be doubtful whether a prosecution based on a pre-1948 order would be very fruitful’, he replied that he knew he wouldn’t be able to serve a new TPO on the same trees but he likes to know what the Forestry Commission is up to!
Whilst come councils volunteered that their TPOs were under review, the responses of some others suggested there are problems:
Old TPOs: Since a common trigger point for serving a TPO is a planning application and thus proposed development, it is not surprising that the plans of old individual TPOs showing the locations of protected trees are out of date, sometimes seriously so.
Photocopies: Photocopies of old out-of-date plans make for difficult interpretation. Furthermore, many, if not most, TPOs have been initially served in the ‘immediate’ form, requiring ‘confirmation’ at a later date. The need to provide copies of the TPO pre-confirmation has led to the common occurrence of the available copy of a TPO showing no sign of confirmation.
Confirmation: Of all the uncertainties of old TPOs, the most worrisome is confirmation, or lack of it. It is too common to find councils issuing decisions on tree work applications but when pressed, the council has had to admit that it has no evidence that a TPO has been confirmed.
TPOs covering large Area designations: Some TPOs cover significant Areas (defined as protecting trees within the area at the time of the TPO designation). I have yet to establish the TPO covering the largest areas but a few rumours have come my way. However, where large areas have been included in a TPO and the plan is old with few landmarks, establishing what is protected and what is not is simply very difficult. Some plans are so large that they cannot be usefully photocopied onto one sheet of paper. For example, Thanet council has a TPO from 1956 that covers much of Broadstairs with 49 areas of trees, 2 groups and 10 woodlands. The TPO covers no fewer than 34 photocopied map sheets. To make matters even more difficult, the council admits that it holds no original TPOs prior to 1975, so cannot make a new copy.
Trees no longer present: TPOs predating the 1980s may include elm trees, most of which no longer exist in their original form, if at all. This is the simplest example, but there are many examples of TPOs showing trees that no longer exist.
Out-of-date records: Inevitably, some protected trees may have been removed lawfully and been replaced with newly planted trees. If the official TPO has not recorded this replacement, the chance of the replacement tree becoming protected is slim.
An example: The Borough of Thamesdown’s TPO No. 2 was served in 1976. It is now administered by the Borough of Swindon. The TPO covers undeveloped land and includes 83 individual trees, 42 areas, 1 group and 1 woodland. The copy of the TPO has an unendorsed section on confirmation. The photocopied plan showing the trees protected by the order has virtually no landmarks, so finding what might be protected requires comparison of existing aerial photographs with linear shapes with the TPO plan. Eleven of the areas state that ‘BRAMBLE’ is protected. Two separate photocopies of the TPO exist, one missing a crucial page. The area was fully developed many decades ago after the TPO was served, so there are many new trees planted and self-sown since 1976. There are also several hundred houses, a shopping centre, an arterial road and a primary school, none of which are shown on the TPO plan.
Availability of information on TPOs and Conservation Areas: Many people who attempt to get information on protected trees report difficulties. Some councils make it relatively easy to search online GIS with a mapping and/or search facility to get information. But there are many who do not have this set up or separate TPOs from Conservation Areas, with the latter merely providing a list of Conservation Areas. A few councils have an online mapping service but make it hard to find on their website!
It seems incongruous that central government has declared that veteran trees are important yet failed to acknowledge that they are not protected. Concurrently, central government has no information on the extent and number of Tree Preservation Orders, makes no effort to collect such information and as a result knows very little about them. The number of TPOs is such that maintaining them is a voluminous task – some councils have got on top of this and reviewed them; others seem not to have done so.
It seems highly desirable that communities and interested parties identify the trees of most importance to them. These individual trees need to be protected, and if there is inadequate capacity to maintain the current protection system, priorities need to be established.
The oldest TPOs – most certainly those served before 1948 – need to be reviewed and possibly re-placed, if the existing trees are worthy of protection. Those with ancient plans also need updating.
Those TPOs that have no signs of confirmation need reviewing, remembering that in the criminal court evidence beyond reasonable doubt is required. It seems only reasonable that a council should be able to show, beyond reasonable doubt, that a TPO was served and confirmed correctly before granting permission for tree works, let alone prosecuting people.
Inevitably, such reviews take time and resources; the results of any review will not be obtained for many months, if not years, in some cases. The financial stresses created by austerity and Covid-19 will work against such reviews, but with the clear break out from financial norms that Covid-19 has led to, now is the time to argue for such resources. We all agree that many trees are important locally and we need to create a protection system resilient for the 21st century.
The England Tree Strategy currently being consulted on suggests ‘work is needed to bring the system up-to-date’ (page 10) but the Technical Annex makes no mention of TPOs at all, focusing on ancient woodland. This surely is the time to ensure adequate resources are mobilised to focus the TPO system protects what society agree are the most valuable trees.
Dr Jon Heuch is an arboricultural consultant who has experience of TPO administration from several councils and has made tree work applications to numerous councils.
He maintains the online advice for Chartered Surveyors (RICS) dealing with Tree Preservation Orders and High Hedges at www.isurv.com.
This article was taken form Issue 190 Autumn 2020 of the ARB Magazine, which is available to view free to members by simply logging in to the website and viewing your profile area.