With the depth of winter firmly upon us, it is no surprise that we are continuing to see more storms such as Storm Isha wreaking havoc across Scotland and other parts of the UK. With these storms, brings extensive damage not only to residential and commercial properties but also to Estates, farms and other rural land interests such as forestry. A particular headache for property owners and landowners alike, is how to deal with trees damaged in these storms, more particularly, those affected by a tree preservation order ("TPO").
In Scotland, TPOs are governed by the Town and Country Planning (Scotland) Act 1997 and the main purpose of them is to preserve the tree(s) in question. They are put in place in situations where the local planning authority considers the following criteria to have been met:
- "it is expedient in the interests of amenity to make that provision" and/or
- "the trees, groups of trees or woodlands are of cultural or historical significance"
Once a TPO has been made, it will either be recorded in the General Register of Sasines or registered with Registers of Scotland (depending on where title to the property is registered) and recorded as a burden on the title to the relevant property/land interest. It is important to note that even if the ownership of the property changes over the years, the TPO will continue to exist as it is binding on the land, not the property owner.
In normal circumstances where a TPO has been made, the landowner shall be prevented from carrying out or arranging for "the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees" without obtaining the prior consent of the local planning authority. Failure to adhere to this or any of the conditions under a TPO, will result in an offence being committed and this can lead to a fine of up to £20,000 being imposed and, on conviction of indictment, an uncapped fine.
However, in circumstances where a tree protected by a TPO is badly damaged in a storm and, if left unattended, would pose an urgent safety issue (e.g. an immediate risk to property or to road infrastructure), this would be considered an exemption under the legislation and work could be carried out or arranged for by the property owner concerned. However, it should be noted that there would still be an obligation on the property owner to provide written notice of the proposed works to the relevant planning authority immediately following the work having been undertaken.
Regardless of whether a tree protected by a TPO is removed as a result of storm damage or not, it is important for Scottish property owners to note in general that they are under a duty to replace the tree with a similar species and of an equivalent size at the same site as soon as reasonably possible. However, for trees forming part of a woodland, the landowner shall be permitted to replant either on the original site, on land close to the original site or in a completely different location as may be agreed with the relevant planning authority. Once planted, the replacement tree(s) will be subject to the existing TPO and any conditionality attached to it. The only exceptions to this replanting rule are where either (a) a property owner applies to their local planning authority to be exempted from this requirement and are successful; or (b) the trees affected by the TPO form part of a woodland and are removed only as a result of them posing an urgent safety issue with no prior consent having been obtained from the local authority.
In light of the above, property owners and landowners should be prudent when dealing with any TPOs which affect their property and if in doubt, should consult with their local planning authority in the first instance to ensure that they act appropriately and comply with the legislation.
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