Change to regulations on trees; PROPERTY BRIEFING.

Byline: RICHARD FREEMAN-WALLACE

TREE troubles affect many developers and landowners. A new addendum to the government's Tree Preservation Orders (TPOs) guidance was issued in May 2009 to reflect recent legislation.

The changes include a fast-track appeal process and a right for all parties to claim costs, including where local planning authorities refuse consent to carry out work to protected trees or impose conditions.

Trees can slow or even stop development, costing landowners and developers many thousands of pounds. A recent case in Armagh cost Mallor Limited pounds 2,500 and costs for one tree which the company had uprooted and replaced. The tree in question had a TPO and the replacement tree was not to the satisfaction of the department, so Mallor had to provide a second alternative tree for consideration. The company eventually had to stump up well over pounds 3,000 for a tree - because it had a TPO.

Tree Preservation Orders prevent the cutting down, lopping, uprooting, topping, trimming or damaging in any way of trees under such an order without the permission of the planning authority. There are fines of up to pounds 20,000 per tree for breaking the order.

The responsibility to maintain trees was highlighted in a case when a member of the public driving along the road collided with a tree that had fallen from the defendant's land onto the road. The injured party made a claim for damages and won because the High Court agreed that the landowner was responsible for the maintenance of the tree.

Even though the owner employed a forestry inspector to monitor the condition of the trees, the inspector had failed to notice the fungal infection that weakened it, and led to the accident. All landowners whose trees are close to highways should take note of the high degree of care they need to take, and the wisdom of being covered by comprehensive insurance.

The new addendum to TPO legislation has come about following consultation. It has suffered from piecemeal amendments over the years, and the Householder Development Consents Review - Steering Group Report, published last year, said that a more "fundamental review of the regulations" was required.

The report recommended that: "The Tree Preservation Order system should be revised to provide a more modern system of tree protection that regulates with a lighter touch. Blanket TPOs should be time-limited and allowed to lapse."

The addendum does not address blanket TPOs but does aim to 'improve procedures' for all of those who become involved with TPOs.

Clarity is needed with TPOs. It took judge 12000 words to spell out what a tree is in the Palm Developments Limited v Secretary of State for Communities and Local Government [2009] case, concerning a tree preservation order.

Mr Justice Cranston finally declared that a tree not only includes saplings but also trees yet to grow from the woodland floor, saying that TPOs extended to all trees "even if not in existence at the time".

Perhaps it's time for a root and branch review? Richard Freeman-Wallace is head of property at Watson Burton