Tree Protection – Time for Change

Alister Rankine considers how statutory protection has the potential to fail the UK’s vulnerable tree stock, and suggests it is time to push for a radical shake-up in the current system.

Have a look at the photographs of the two trees below

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It would not be unreasonable to presume that the Oak, a fine mature specimen growing in an open field, and visible for a great distance, is protected, and that the Leyland Cypress, a poor specimen growing in a suburban garden, is not. In fact the opposite is true. There is nothing to prevent the Oak form being cut down today with no legal repercussions. The Cypress, on the other hand, is growing in a Conservation Area. Consequently, if the owner wishes to cut the tree down the Local Planning Authority must be given six weeks’ notice. As professional arborists it is difficult to countenance this situation with logic and reason. So imagine what the general public might think!

I have used this somewhat simplistic example to highlight what is becoming an increasing concern – namely the vulnerability of our dwindling tree stock. A random search of the internet reveals a plethora of websites dedicated to the threats that face our trees and woodlands. They promote the issues and provide advice that relies on the legislation and designations that currently exist to ostensibly protect our trees. Interestingly, few, if any, point to the inadequacy of the current system and how this might just be contributing to the problem.

It is not the intention of this article to detail existing tree protection legislation. In summary, however, it can be stated that a tree not protected by a Tree Preservation Order (TPO) or in a Conservation Area or subject to a Planning Condition has no statutory protection. Consequently, trees like the Leyland cypress above currently enjoy greater protection than those like the oak. Other legislation and designations do exist that recognise the value and potential importance of the protection of trees. For example, Planning Policy Statement 9 (PPS 9) acknowledges the importance of existing trees and woodlands, but is itself fraught with issues of interpretation.

With ever increasing pressures on trees, in particular from development, there is a real danger that consideration of the obvious candidates for protection and preservation will be at the ultimate expense of the myriad ‘lesser’ trees that fall foul of the current apathy generated in the prevalent climate of arboricultural obscurity.

Protective legislation is not alien to the natural environment. The Countryside and Wildlife Act 1981 and Countryside and Rights of Way Act 2000 embrace the plight of vulnerable members of our natural heritage; birds and bats, badgers and newts being obvious beneficiaries.

Whilst not easy when considering the protection afforded by these statutes, it is not impossible to make analogies with the current tree legislation. The protection offered to birds is not by virtue of their location or species (with a few exceptions). Protection is not dependent on an assessment of what value a bird contributes to the wider amenity of an area. Bats are similarly advantaged. So why should trees be segregated? It is true, of course, that trees may receive ‘borrowed’ protection by virtue of the fact that they might provide nesting sites for birds and roosts for bats – an irony not lost on the arborist.
Urban myths and apocryphal anecdotes abound when it comes to tree preservation legislation. For example, how many times have tree officers been asked to put an emergency TPO on a threatened tree? The circumstances driving the request may constitute an emergency, but the mechanisms for responding to such requests win few prizes for alacrity. It is a popular misconception that the tree officer is hovering in the wings of the stage upon which the tree drama is unfurling, poised to react with the ubiquitous ‘slapping’ of the TPO on the hapless tree. Guidance in ‘The Blue Book’ (ODPM publication ‘Tree Preservation Orders – A Guide to The Law and Good Practice’) on making TPO’s occupies five pages of close type – hardly conducive to securing a swift response, particularly when, in an increasingly litigation conscious society, the least error could render to good intentions of the Local Authority worthless.

The procedures for making TPO’s vary from authority to authority. Much depends on the resources at the disposal of the individual tree officer. Lack of administrative backup and frequently split sites for planning and legal departments conspire to aggravate the protracted process from making the order to sealing, copying and serving. Rarely can a TPO be made and served within a single working day. In the meantime the trees remain vulnerable and unprotected.

A recent ally promising some safeguarding of existing trees is the revised British Standard BS5837:2005 ‘Trees in Relation to Construction – Recommendations’. This has been broadly welcomed in arboricultural circles. The increased awareness that the standard promotes is both positive but also potentially negative. The conscientious architect and developer will consider the issues relating to trees on development sites and use these to inform layout design complemented by pragmatic tree retention and protection and future management. The less scrupulous punter will anticipate the potential constraints that trees may impose, and take evasive action to eliminate the problem.
It is not my intention to take a pessimistic stance over this matter nor to broadcast an arboricultural prophesy of doom. I am, however, deeply concerned that countless trees could be under threat as a direct consequence of the incipient vulnerability wrought by our current tree protection legislation.
So what is the way forward? Given the facts, I feel it is apposite to champion a major review of tree protection, and to consider the creation of encompassing and comprehensive legislation under a new Act of Parliament to be called The Tree Protection Act.

I accept that this is probably very ambitious and that it will require a great deal of careful research, consideration and consultation. It would be pointless at this stage to anticipate the details of the Act, but as a basis for initial discussion I want to put forward my primary thoughts on the advantages of the proposal. These are given with no priority and no preconceptions that they should be integral to the final product.

• Protection for all trees regardless of age, species or location. There will of course be exemptions, probably in line with those current with existing legislation.
  • Increased public perception of the value of trees. This may not just be the aesthetic value. In our market economy, especially property, much store is given to built features. How often do trees feature on sales particulars? Currently TPO’s are brought to light in legal searches, and are perceived to be more of a liability than an asset. A Tree Protection Act can help to change this culture.
  
• Enhanced Duty of Care. The Act will effectively introduce a legal responsibility for the maintenance and general stewardship of trees. It seem paradoxical that we live in a society besotted with the internal combustion engine which is widely acknowledged to be a contributor to atmospheric pollution and a major factor in the equation of environmental degradation. We lavish huge sums of money on our vehicles to keep them maintained and functioning, and we are governed by countless laws and regulations. Yet, when it comes to our trees, universally recognised as environmental benefactors, as owners we frequently ignore their needs, abuse their status and curse their presence.
  
• Optimised use of Local Authority Resources. At present much of the time spent by local authority tree officers making and administering the TPO system is reactive; frequently engendering frustration, anger and resentment amongst respective stakeholders. Whilst the tree officer may have good reason to make a TPO, the tree owner can feel victimised and may perceive the order to be an indictment. If all trees had protection status this perception would cease. A considerable proportion of tree officer time is occupied assessing TPO applications and Conservation Area notifications. Applications under a new system would still be necessary but could be carried out under license by local authority registered arborists, thus promoting the role of the tree officer to one of proactive mentor and adviser.
  

I am under no illusions that a new Tree Protection Act would be a panacea to all our current tree related problems and dilemmas.

We do not live in a perfect world, and to strive for an arboricultural Utopia would be unrealistic. We are fortunate to at least have statutory protection for selected trees in the UK at present. However, I do believe very strongly that we should consider a change in practice and address the existing process that has a tendency to foster positive discrimination of our trees, and pander to bigotry fuelled by misguided intentions.

Alister Rankine
Alister Rankine is a fully trained forester and arboriculturalist with more than thirty years’ experience and runs his tree and woodland management consultancy, ‘Hillside Trees’ at Chilcompton in Somerset. alistair@euroarb.eu.com