orchards and tpo

1: Orchards and TPO’s Dr D P O’Callaghan F.Arbor.A., MICFor., MAE Principal Practice Consultant Landscape Planning Limited

2: Tree Preservation Orders 1990 Town & Country Planning Act Section VIII : Chapter 1 ‘Special Controls Trees’ s197 The Duty to Make TPO’s s198 The Power to Create Orders Also contains ‘Exemptions’ at s198 (6)(a) and 198 (6)(b)

3: The Regulations Pre 02 August 1999 the Regulations that Apply are the 1969 Regulations as amended in 1985. Post 02 August 1999 the Regulations that apply are the 1999 Regulations.

4: The Regulations Under the 1969 Model Order: A fruit tree cultivated for fruit production was exempt from a TPO by virtue of Para. (2)(d) of Schedule 2. This was ambiguous and often caused problems, particularly where old properties that had orchards were being re-developed.

5: The Regulations The 1999 Model Order is more precise in respect of fruit trees: The exemption only applies to trees cultivated for fruit production in the course of a business or trade where the work is in the interests of the business or trade.

6: Outcomes In the context of old / veteran orchards where fruit production has ceased in respect of a trade or business it is permissible to create a TPO to protect the trees. Therefore, statutory protection for old / veteran orchards is possible under the current regulations.

7: Amenity The Act says at S.198: “If it appears to a local planning authority to be expedient in the interests of amenity …” How is this generally interpreted?

8: Amenity The Act does not define ‘Amenity’ Taken to mean ‘Visual Amenity’ But does ‘Amenity’ mean ‘Visual Amenity’’? If you can see the trees they have amenity; if you can’t they don’t! (The basis for the Helliwell System)

9: Amenity The word ‘amenity’ was defined by the Court of Appeal in 1920 in ‘Ellis’ as: “Pleasant circumstances, advantages, and all that flows from that …” (Scrutton LJ, Ellis v Ruislip & Northwood Urban District Council, [1920] 1KB 343) The UK/I RPAC of CTLA would concur with this definition – perhaps Mr Helliwell would not

10: Government Advice Government Guidance on TPOs at paragraph 3.2 of the ‘Blue Book’ Tree Preservation Orders: A guide to the Law and Good Practice 2000 sets out that ‘visual amenity’ is not the only criterion for the inclusion of trees within a TPO, (although it is the most often cited reason) as follows:

11: Government Advice Present or future benefit; Intrinsic beauty; Contribution to the Landscape; Scarcity; Importance as wildlife habitat. Could we perhaps add Historic and / or Cultural significance?

12: The Legal Framework There is further advice available in ODPM (Now DCLG) Circular 06/2005 (Defra Circular 01/2005) “Biodiversity & Geological Conservation” (To accompany PPS 9) Specifically at Paragraphs 90 & 91

13: The Legal Framework Para. 90 Re-enforces the ‘duty’ that LPAs have with respect to making provision for the protection of trees when granting planning consent under s.197, and the ‘powers’ to make TPOs at s.198 of the 1990 Town & Country Planning Act

14: The Legal Framework Para. 91 “Veteran and other substantial trees and may types of woodland, especially ancient semi-natural woodland can be of importance for biodiversity conservation. When considering whether particular trees or woodlands merit a TPO in the interests of amenity, LPAs should, where appropriate, include consideration of their nature conservation value.”

15: Legal Framework The legal framework to protect old / veteran orchards exists; Is there a need for additional legislation? Perhaps we need to look at new Regulations rather than new Primary Legislation.

16: Regulations Circular 06/2005 at Paragraph 92 deals with Hedgerows and refers to the ‘Hedgerow Regulations 1997’. These were created s.97 of the Environment Act, 1995. To protect important hedges in the countryside & prevent their removal through a system of notification to the LPA

17: Regulations The 1997 Hedgerow Regulations set out clearly defined criteria to be used to determine whether a hedgerow is important, as follows; Archaeological Interest; Historic Interest; Landscape Interest / Value; Wildlife Value.

18: Regulations Hedgerows should be at least 30 years old and meet the criteria in order to be deemed important. This seems to be an eminently sensible approach. If in doubt, notify the LPA, which then has 6-working weeks to assess the hedgerow and come to a decision on whether it is important or not.

19: Regulations Could a similar system be devised for: Old / Veteran Orchards? Veteran Trees? Historic Orchards / Trees?

20: Veteran Trees Trees that are of interest biologically, aesthetically or culturally because of their age; Trees in the ancient state of their life; Trees that are old relative to others of the same species

23: Veteran Trees Guidelines: DBH (Smith & Bunce 2004) 750mm Field Maple, Rowan, Yew, Birch 1000mm Oak, Ash, Scots Pine, Alder 1500mm Sycamore, Lime, Elm, Poplar, Beech, Willow other Pines and Horse Chestnut

24: Veteran Trees Tree Attributes (EN 2000; Fay & de Berker 2003) Girth large for the species concerned; Major trunk cavities or progressive hollowing; Naturally forming water pools Decay holes (rot holes); Physical damage to the trunk; Bark loss; Large quantity of deadwood in the canopy; Sap runs; Crevices in the bark, under branches, on the root plate Fungal fruiting bodies; High number of interdependent species; Epiphytic plants

25: Veteran Trees An ‘Old Look; High Aesthetic Interest; Pollard form or indications of past management; Have cultural / historic value; Prominent in the landscape. Let’s look at some examples and see if they would qualify?

30: Veteran Trees The features and assessment systems provide measurable criteria for classification of trees as ‘Veterans’; The Hedgerow Regulations provide an existing methodology for implementing a system of notification; A set of Veteran Tree Regulations is not beyond our abilities!

31: Let’s Look at Orchards Old Orchards are a dwindling resource; They are ‘Historic’; They have ‘Heritage’ value They have ‘Cultural’ significance; They have Biodiversity / Nature Conservation value;

32: Orchards Often Orchards are associated with an old building, probably listed; Edwardian, Victorian, Georgian, possibly older; If they are in the curtilage of a ‘listed’ building, then there is added strength to the historic / heritage value; The older the orchard the greater the possibility of them containing rare varieties of fruit trees.

33: Orchards Similarly the older the orchard the higher the chances of the trees being classified as veterans; Seems like we are part of the way to devising a set of criteria that could be used to classify and orchard as ‘Important’; Veteran & Old Orchards Regulations?

34: General There is precedence for such ‘Regulations’ as proposed under existing legislation; TPO Regulations (Town & Country Planning Act) Hedgerow Regulations (Environment Act) Therefore, the production of Veteran Tree Regulations and / or Old Orchard Regulations is possible under either of the above, or in the case of Orchards perhaps the Listed Buildings & Conservation Areas Act.

35: The Way Forward Decide on what is required for Veteran Trees & Old Orchards; Devise the criteria (largely done for Veteran Trees); Talk to the Regional Tree Officer Groups and NATO; Involve the professional Arboricultural organisations, i.e. UK/I Chapter of ISA, the AA, and the ICF;

36: A Way Forward Involve the professionals from other disciplines also, Landscape, Ecology, CABE Space etc. Lobby for the Regulations! It is not ‘Rocket Science’! It is achievable!