Protected trees and woodlands, and high hedge legislation

Of the 1500 applications received by Scottish Borders Council during 2017, 110 related to “Works to trees”.  None of these applications were refused.  To date (end of May 2018), some 52 applications for “Works to trees” have been received by SBC.  An application for works to protected trees is required where it is proposed to fell, top, lop, uproot or otherwise damage or destroy any tree to which a tree preservation order relates, any tree located within a conservation area that has a trunk diameter of more than 75mm (3 inches) when measured at 1.5m (5ft) above ground level and any tree that is protected through a condition attached to a planning permission.

There are some 60 approved Tree Preservation Orders (TPOs) within the Scottish Borders Council area, many dating back to the 1970s.  They include individual trees, groups of trees and woodlands spread throughout the area.  Details of TPOs are available from the Tree Officer in the Planning and Building Standards Department.  There are currently some 43 Conservation Areas designated within the Scottish Borders.  The boundaries of these Conservation Areas are shown on the Local Development Plan Proposals Maps for the relevant settlement.  Under Section 172 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, anyone proposing to cut down or carry out work on a tree in a conservation area is required to give the planning authority six weeks prior notice.  The purpose of this requirement is to give the planning authority an opportunity to consider whether a TPO should be made in respect of the tree.

Planning Circular 1/2011, published in February 2011 sets out Scottish Government Policy on TPOs and trees in conservation areas.  The Town and Country Planning (Tree Preservation Order and Trees in Conservation Areas) (Scotland) Regulations 2010 state that an application for consent to works to a tree or trees protected by a TPO must specify the operations for which consent is sought; provide reasons for the operations; and identify the protected tree or trees by means of a map or plan of a size and scale sufficient for the purpose.  The planning authority should keep a register of all applications for consent and the decisions made.  Where a planning authority refuses consent or grants consent subject to conditions, the applicant may appeal to the Scottish Ministers within 3 months of the council’s decision.  Works to Trees applications can be made by the owner of the trees or any other person as long as the owner is notified of the application.  Unlike planning applications, there is no requirement to notify owners and occupiers of neighbouring land.  Works to trees applications require an application form and a plan which clearly identifies the trees affected by the application.  The application form should set out clearly what is proposed, whether it be felling, removing or reducing some branches or reducing the crown, and any proposals for replacement planting.  The reasons for the application should also be fully explained, preferably with the support of professional advice from an arborist or tree surgeon.

The council can only consider the impact of the work on the amenity value of the tree(s) or woodland and whether the work is justified.  There is no legal requirement for the council to consult on tree applications.  Details of “Works to trees” applications are included in the weekly list of planning applications on the council’s Public Access Portal but comments are not invited.  Decisions are made by the Tree Officer following a site visit.  Scrutiny of the applications received in 2018, so far, shows a tremendous variation in the quality of the submissions.  In many cases, there is no application form just a letter requesting permission; in some cases a photograph simply identifies the tree to which the application relates, and in many cases the reasons for the application are somewhat cursory.  Only in a small number of cases is the application accompanied by a report produced by a professional.

A report commissioned by the Scottish Executive [now the Scottish Government] to examine the effectiveness of the TPO system in Scotland, published in 2002*, concluded that the management of many TPO sites was either non-existent or to a very low standard through a combination of lack of knowledge, finance and commitment to the maintenance of protected trees.  With regard to procedures and technical standards, the report considered that there was a distinct lack of up-to-date government advice on TPOs.  The lack of an accurate consistent local authority database meant that there was no complete picture of the extent and nature of TPOs across Scotland.  It was recommended that all councils needed to update their records.  The report also identified that there was an uneven pattern in the way that councils applied the provisions of the 1997 Planning Act and linked regulations and a lack of adequate monitoring of changes to TPOs.  Little has changed since 2002.

*Roger Jessop; The Effectiveness of Tree Preservation Orders in Scotland, Scottish Executive Social Research, 2002 [ISBN 0950 2254; ISBN 0 7559 3439 3]

A relatively new provision is the High Hedges (Scotland) Act 2013, which came into force on 1 April 2014.  This Act was introduced in response to the increasing problem of high boundary hedges (the most notorious being leylandii) which harmed the enjoyment of a neighbour’s property (house and/or garden), normally as a result of the loss of light.  Unlike boundary fences or walls that require planning permission if they exceed two metres in height, there is no such restriction on planting trees or shrubs to form a hedge.  A ‘high hedge’ is defined in the Act as one which is “wholly or mainly formed by a row of two or more trees or shrubs which is over 2 metres in height and forms a barrier to light”.  An application for a ‘High Hedge Notice’ can be made by the owner and/or occupier of the affected property.  A potential applicant must have made efforts to resolve the issue with the neighbour themselves before an application is made.  An application received by the planning authority where there is no evidence of this having been attempted must be rejected.

In dealing with such applications, the planning authority must notify the owner and occupier of the land on which the offending hedge is situated and invite comments, which must be submitted within 28 days.  There is no requirement, however, to publicise high hedge applications.  The planning authority must visit the site and then decide “Whether the height of the hedge adversely affects the enjoyment of the domestic property which an occupant of that property could reasonably expect to have”.  If the planning authority considers that the hedge has little adverse effect it can decide to take no action.  If the planning authority decides that the hedge is having an adverse impact, it can issue a High Hedge Notice which sets out what the hedge owner must do to remedy the harm caused by the high hedge; this usually involves reducing the height of the hedge to 2 metres but could require other measures to be taken.  The act allows the applicant to appeal to Scottish Ministers against the decision of the planning authority not to issue a High Hedge Notice or if they consider that the works required by the High Hedge Notice do not go far enough.  The owner or occupier of the land on which the hedge is located can appeal if they think that a High Hedge Notice should not have been issued; if they consider that the works required by the Notice go too far or the council has not given them enough time to carry out the works.

Although there was a flurry of high hedge applications, nationally, when the Act came into force in 2014 (when there were over 120 applications), the number has decreased across Scotland since 2014.  In the Scottish Borders, there have only been three applications, one in 2014, one in 2015 and one in 2016.  In the first case, a High Hedge Notice was issued and complied with; and, in the second case, the council decided not to issue a Notice.  The third application (SBC Ref: 16/01092/HH), submitted in September 2016, would appear to remain undecided.  One wonders whether Scottish Borders residents are fully aware of the legislation on high hedges introduced by the Scottish Government in 2014 or whether, perhaps, this problem is more concentrated in the urban areas of the Central Belt and the North East, areas that saw considerable housing development in the 1970s and 1980s.  Explanatory guidance on applying for a high hedge notice is available from the Scottish Government and can also be accessed on the Scottish Borders Council Public Access Portal.