Clause
156
Power
to make non-material changes to planning
permission
Mr.
Dhanda:
I beg to move amendment No. 477, in
clause 156, page 83, line 29, at
end insert—
‘(1) TCPA 1990
is amended as follows.
(2)
’.
The
Chairman:
With this it will be convenient to discuss the
following amendments:
Government amendment No.
478
No. 30, in
clause 156, page 83, line 33, after
‘may’, insert
‘on the request of a person
interested in any of the land to which the permission
relates’.
No.
31, in
clause 156, page 83, line 34, leave
out ‘relating to land in their area’ and insert
‘for which they are the local
planning
authority’.
No.
32, in
clause 156, page 83, line 34, leave
out ‘they are satisfied
that’.
No. 33,
in
clause 156, page 83, line 36, leave
out ‘a local planning authority must
have’.
No. 34,
in
clause 156, page 83, line 37, after
‘regard’, insert ‘must be
had’.
No. 35,
in
clause 156, page 83, line 40, leave
out from beginning to end of line 1 on page
84.
Government
amendment No.
479
Clause stand
part.
Mr.
Dhanda:
This clause will enable a local planning authority
to make a minor change to a planning permission that relates to land in
its area where it is satisfied that the change is not a material one.
This provision is necessary because, when developers seek to implement
their permissions, they can often find that minor changes to their
original proposals are necessary. Such issues are particularly common
for complex, large-scale developments that take long periods to be
built.
Examples
might include slightly moving the entrance to an office or providing a
new fire escape, because of changes to building regulations that have
occurred during the development process. In the past, such minor
changes were dealt with locally, with planning authorities making a
judgment about whether they were so minor that they could be allowed
without any formal procedure. We are taking advantage of and
introducing such a formal procedure under the clause.
However, case
law has thrown into doubt whether such an approach, which existed in
the past, is lawful and acceptable. That has led to widespread
uncertainty for both planning authorities and developers, and a
generally more cautious approach has led to even minor and
insignificant changes requiring a new full planning application. All we
seek to do is to reintroduce a little practical flexibility into the
system.
Mr.
Curry:
How many times could a developer come
back for a minor modification in the course of a
development? I know of circumstances in my constituency where planning
permission has been granted and then a series of small incremental
changes have been made that end up changing the shape of the
development significantly. Local residents, having perhaps acquiesced
to or been willing to accept an original planning permission, have
ended up with something radically different from what they had
consented to in the first place. They had no opportunity to intervene
in the mean time. How many times can that happen and how much does it
add up
to?
6
pm
Mr.
Dhanda:
The right hon. Gentleman makes an interesting
point. No two developments are the same, and when I say
“minor” I mean it. That is part of the reason that I gave
a couple of specific examples, such as fire escapes due to changes to
building regulations. Such really minor matters have resulted in big
planning applications being lost entirely. I hear what the right hon.
Gentleman says, but it is a bit like asking me how long a piece of
string is, because no two developments are the
same.
Mr.
Curry:
My point was about a series of changes
being applied for in respect of a single development,
which have the cumulative effect of changing significantly the nature
of the development. Is that dealt with in the clause, or could
developers use salami
tactics?
Mr.
Dhanda:
I assure the right hon. Gentleman that the clause
is not about changes to a development that result in
a material change. It is about very minor changes. I hope that that
reassures him. I also ask members of the Committee to remember that a
similar provision has existed in Scotland for about a quarter of a
century and has worked well.
The
Government amendments will provide further clarity as to how the power
will work. Amendments Nos. 477 and 478 are technical drafting changes
that I trust will be totally uncontentious. Government amendment No.
479 makes a number of changes to the clause, first by inserting
proposed new subsection (4) to proposed new section 96A, requiring that
the power in the clause can be exercised only by a person with an
interest in the land or someone acting on their behalf. I note that
Opposition Members’ amendment No. 30 is intended to achieve a
similar outcome, so I hope that that will allay their
concerns.
Secondly,
the amendment will add proposed new subsection (5) to proposed new
section 96A, so that an application to make a non-material
change—I emphasise that point again—must be in the form
and manner prescribed. It is intended that, as with other
planning-related applications, the standard application form will be
used. Thirdly, proposed new subsection (6) will allow us to prescribe
how such an application should be publicised and who should be
consulted as part of the process.
Fourthly, there are amendments
to section 5(3) and schedule 1 to the 1990 Act,
providing that a local authority can make a change under the provision
only if it is the local planning authority for the planning permission
in question. Opposition amendment No. 31 is intended to achieve a
similar outcome, so perhaps we are aligned in our thinking. Finally,
section 69 of the 1990 Act will be amended to require that a request
for a non-material change be recorded on the planning register. I hope
that we can agree that those are sensible changes to a sensible
provision, and that Opposition Members will not press amendments Nos.
30 and
31.
Robert
Neill:
The Minister has shortened what I need to say. He
is right that we have the same objective. Lest anyone
should wonder why the matter is of significance, there are situations
such as that of the Thames Gateway involving urban development
corporations, national parks and so on, which not be the local planning
authority. I
am grateful to the Minister for having dealt with such issues. Some of
our amendments were drafted similarly, with objectives that I accept
have been achieved by the Government
amendments.
Amendment
No. 35 is slightly different and harks back to the concern expressed by
my right hon. Friend the Member for Skipton and Ripon. In the first two
proposed new subsections, the starting proposition was that any changes
should not be material. However, the concern is that a number of
changes can have a significant cumulative effect. Proposed new
subsection 96A(3) worries me, because read together with the other
provisions it suggests that new conditions can be imposed or
old ones removed or altered if they are not material. I am trying to
think of circumstances in which they would not be material. If they
were not material, why were they imposed in the first place? That is
the part that seems odd and tautologous. I am worried about the risk of
what are asserted to be non-material conditions being changed, as it is
difficult to think of a non-material condition. I would be grateful if
the Minister could help us on that.
Mr.
Dhanda:
I have given an example on a couple of occasions
about fire doors. It is a good example. There could be a development
that is working but then a new set of building regulations is
introduced. We cannot have a set of circumstances in which the entire
process must begin again with the planning application. That has
happened; I have an example of it that I am happy to share with the
hon. Gentleman, but I do not want to bore him.
The hon. Gentleman mentioned
amendment No. 35, which would remove the ability to make non-material
changes by removing or altering existing conditions or imposing new
ones. It would prevent a local planning authority from making minor
changes to an existing planning condition, unless there was a further
formal planning condition. We would not want to go through such a
process. However, were it accepted that the kind of non-material
changes to a planning permission that I have outlined should be
allowed, the planning authority would be best placed to decide what is
material or not. There seems little reason to impose a restriction that
would prevent a minor change to a planning condition. While it is
accepted that section 73 of the 1990 Act provides an existing mechanism
to vary a condition, an alternative route to making minor changes
should be allowed. On the record, I want to reinforce the point that we
are talking about really minor changes.
Robert
Neill:
I am grateful to the Minister for
reinforcing that point. I understand his point about minor variations
to conditions, and the ability to amend a condition, but I am still
interested to think of circumstances in which it would be appropriate
to remove a condition completely or to impose a wholly new one. I
understand and see the good sense in changing a condition for the
reasons that he has explained. However, I am concerned that we do not
open up the flood gates, beyond that which he would wish to see, by
allowing the complete removal of a condition or the imposition of a
wholly new one. Is the process to be circumscribed to allow an old
condition
to be removed but a similar one to be imposed, so that the package of
conditions remains the same? That might make sense. Were a condition
removed entirely, one might ask why it was there in the first place if
it was sufficiently immaterial to be removed. That is a different
matter from the Minister’s valid point about making a minor
amendment to a remaining condition.
Mr.
Dhanda:
I do not have a great deal to add other than that
local authorities who have worked with developers to get some of the
important developments up and running have brought the matter to our
attention. They have had difficulties, and in the past have done this
in an informal and ad hoc way. The clause is necessary to remove that
ad hoc and informal way of reaching the same position, because legal
challenges have resulted in major developments being knocked back to
square
one.
Robert
Neill:
We have not had a Division all
afternoon, and I am not about to ask for one now.
Amendment agreed to.
Amendments
made: No. 478, in clause 156, page 83, line 30, leave out
‘of TCPA
1990’.
No. 479,
in
clause 156, page 84, line 1, at
end add—
‘(4) The power
conferred by subsection (1) may be exercised only on an application
made by or on behalf of a person with an interest in the land to which
the planning permission
relates.
(5) An application
under subsection (4) must be made in the form and manner prescribed by
development order.
(6) A local
planning authority must comply with such requirements as may be
prescribed by development order as to consultation and publicity in
relation to the exercise of the power conferred by subsection
(1).
(3) In section 5(3)
(purposes for which Broads Authority is the sole local district
planning authority) for “97” substitute
“96A”.
(4) In
section 69(1) (register of applications
etc)—
(a) after
paragraph (a)
insert—
“(aa)
applications for non-material changes to planning permission under
section 96A;”,
(b) in
subsection (2)(a) after “(1)(a)” insert “and
(aa)”, and
(c) in
subsection (4) after “(1)(a)” insert “,
(aa)”.
(5) In section
286(1) (challenges to validity on ground of authority’s powers)
after paragraph (a)
insert—
“(aa) an
application for non-material changes to planning permission under
section 96A;”.
(6) In
Schedule 1 (local planning authorities: distribution of functions), in
paragraph 3(1), after paragraph (a)
insert—
“(aa)
applications for non-material changes to planning permission under
section 96A;”.’.—[Mr.
Dhanda.]
Clause
156, as amended, ordered to stand part of the
Bill.
Clause
157
Tree
preservation
orders
Alun
Michael:
I beg to move amendment No. 439, in
clause 157, page 87, line 24, at
end insert—
‘(7A) In section
210 (penalties for non-compliance with tree preservation
order)—
(a) for
subsection (1) substitute—
“(1) If any person contravenes tree
preservation regulations, he shall be guilty of an
offence.
(1A) In proceedings
for an offence under this section, it shall be a defence to prove the
following matters—
(a)
that works to the tree were urgently necessary in the interests of
safety or health or for the preservation of the
tree;
(b) that it was not
practicable to secure safety or health or, as the case may be, the
preservation of the tree by other
means;
(c) that the works
carried out were limited to the minimum measures immediately necessary;
and
(d) that notice in writing
justifying in detail the carrying out of the works was given to the
local planning authority as soon as reasonably practicable.”,
and
(b) omit subsection
(4).’.
The
Chairman:
With this it will be convenient to
discuss the following amendments: No. 440, in
schedule 3, page 121, line 17, leave out sub-sub-paragraph
(a).
No. 441, in
schedule 3, page 121, line 26, at
end insert ‘, and
(c) in the
side-note and the heading above the section for “in conservation
areas” substitute “not subject to tree preservation
order”.’.
No.
442, in
schedule 3, page 121, line 32, leave
out paragraph 10 and insert—
‘10 In
section 213 (duty to plant replacement tree in conservation
area)—
(a) for the words from
“at a time” to the end of the paragraph substitute
“at a prescribed time”,
and
(b) in the side-note, for
the words after “controls”, substitute “under
section
211”.’.
New
clause 15—Register of
trees
‘After section 210 of
TCPA 1990 insert—
210A
Register of trees of special
interest
(1) The Secretary of
State may compile and maintain a register of trees situated in England
and appearing to him to be of special interest, or may approve with or
without modification such a register compiled by other persons or
bodies, and may amend any register so compiled or
approved.
(2) The Welsh
Ministers may compile and maintain a register of trees situated in
Wales and appearing to them to be of special interest, or may approve
with or without modifications such a register compiled by other persons
or bodies, and may amend any register so compiled or
approved.
(3) The Secretary of
State or, as the case may be, the Welsh Ministers shall, as soon as
practicable after including in the register an entry relating to any
tree, notify the persons mentioned in subsection (4) of this section of
the inclusion and send them a copy of the
entry.
(4) The persons
are—
(a) the owner and
(if the owner is not the occupier) the occupier of the land on or over
which the tree or any part of it is growing;
and
(b) any local planning
authority in whose area such land is
situated.”’.
New
clause 16—Protection of trees not subject to a tree
preservation order
‘(1) In
section 211 of the TCPA 1990 (preservation of trees in conservation
areas), in subsection (2), after the words “in a conservation
area” add “and to any other
tree”.
(2) In section
212 (power to disapply section
211)—
(a) after
subsection (2)(b),
insert—
“(bb)
trees in such other areas or descriptions of areas as may be so
specified;”;
(b) in subsection (2)(c), before the word
“size”, insert
“description,”;
(c)
after subsection (2),
insert—
“(2A)
Such regulations may, in particular, exempt from the application of
section 211 any works to a tree whose felling would require a licence
under the Forestry Act 1967.”;
and
(d) omit subsection
(4).’.
Alun
Michael:
Mr. Illsley, I have known you for more
than 20 years as a vigorous and forthright Member of Parliament, so it
is slightly odd to see you trapped in the Chairman’s role of
complete neutrality. It is a real penance for a politician of your
calibre. However, it does not prevent you from listening or indeed
reading. I therefore want to lighten your hours on the Planning Bill by
handing you a copy of “The Heritage Trees: Britain and Northern
Ireland”.
Mr.
Dhanda:
Is it a signed
copy?
Alun
Michael:
It is indeed. Mr. Illsley, you will
find the volume entertaining and illuminating. It is evidence of the
rich, national treasury that we have in our wild variety of ancient and
precious trees and of the need for reform of the tree preservation
order system. In recent times, some nationally important trees have
been lost such as T’yr Ash oak, which was the largest oak by
volume in Wales with a girth of more than 6 m. It was estimated to be
about 375 years old. A large limb fell from the crown. The owner became
concerned about the risk of further collapse and arranged for it to be
felled. It was not protected by a tree preservation order. A good deal
of campaigning took place to protect the tree because it was seen as a
significant loss to the local community, members of which wanted an
investigation into alternatives, such as whether
retention was possible. Unfortunately—although it might have had
reasons—the Brecon Beacons national park authority would not put
a preservation order on the tree, despite an independent arboricultural
consultant’s report that the tree could be managed to reduce the
risk to acceptable levels. The tree has now been felled and lost for
ever.
However,
given that some trees throughout the country with little wider value
are protected by tree preservation orders, I hope that the Minister
will be willing to accept the amendments and new clauses. He is a
reasonable and caring man so I am sure that he will listen to my
suggestions or table his own amendments. There is always a belief, in
any Ministry, that it can draft provisions slightly better than a Back
Bencher can. I leave open the possibility of the Minister introducing,
on Report, amendments that would have the same final impact.
I thank the
Woodland Trust, the Tree Council and Charles Mynors, a barrister with
considerable experience and the author of an authoritative book on
these issues, for their assistance. I am also grateful to the Minister
for enabling me to explore relevant issues with him and his officials
before the debate so that we could move forward constructively. That
sort of engagement is extremely
valuable.
6.15
pm
One problem
with tree preservation orders is that they can be used in various ways.
Some councillors use them rarely, and only to protect the most valuable
trees, whereas others use them as a device to protect trees of little
value, as with a recent order in Dorset to protect
an unremarkable front-garden tree in an ordinary
suburban street. Some use them more cynically as a device to prevent
development. There was a recent order in Essex on a back-garden cherry
tree that happened to be at the entrance to a proposed housing scheme.
Trees are sometimes protected by reference to groups or to areas of
land, which means that the group may contain an individual tree of
little amenity value. For example, in Liverpool, there are several area
orders, each covering a large housing estate. Against that
background, it is not surprising that there are unauthorised works on
trees in a wide variety of circumstances. An unprincipled developer may
fell a beautiful specimen tree to unlock a development site, or a
householder may lop a branch off an unremarkable back-garden tree
because it is shedding leaves, which block the gutter. Between those
two examples, there is a whole range of situations, varying as to the
number of trees involved and the amenity value of each. The
extent of the works carried out varies between felling and pruning, and
the culpability of those responsible varies accordingly.
The
amendments would replace the two current offences with a single
offence. When dealing with offences, the courts always have the power,
and, indeed, the duty, to tailor the sentence to fit the circumstances
of the case. In an either-way offence—one that is triable in the
Crown court or before a magistrate; the parties have the option of
going to either forum—a minor breach will usually attract a
trivial fine from a magistrate. If either party is silly enough to go
to Crown court, the eventual penalty will be significantly larger.
Major breaches result in larger fines in the Crown court, and any
significant element of development gain may be taken into account. That
is reflected in practice.
There is
similar legislation relating to listed buildings, with a single offence
of unauthorised works that is triable either way, and the maximum
penalty may be imposed . There have been more than 100 convictions
since the existing penalties were introduced in 1991. Of those cases,
16 were tried in the Crown court, with only two resulting in a fine of
more than £20,000. The remaining 85 cases were heard by
magistrates. That suggests that the creation of a single offence would
not result in trivial offences being at risk of excessive punishment,
which has, until now, been the reasoning behind the refusal to move
from two offences to one. Indeed, if anything, the penalties are too
low to put off determined offenders.
There is a
wholly artificial distinction between major offences—those that
result in the death of the tree or seem likely to do so—and
minor offences. For the former, there is an unlimited maximum fine. For
the latter, the maximum is only £20,000. That leads to a
somewhat arid debate on which category properly applies. That is
particularly unprofitable when works are carried out on more than one
tree, with some in each category. Sometimes, authorities choose not to
prosecute the more serious offence because they cannot be sure that the
tree will die, but they do not prosecute the minor offence, either,
because the maximum penalty is perceived to be small.
Turning to
the proposed dangerous works exemption, there is an exemption in
section 198(6) of the 1990 Act, which means that consent is not
required, first, for works to trees that are dying, dead or dangerous
and
secondly, so far as is necessary, for the prevention of nuisance. The
first exemption is significantly wider than the corresponding exemption
in Scotland, which exempts only works that are necessary to prevent a
danger. Similar provisions apply when obtaining a felling licence under
the Forestry Act 1991. In their 1994 review of tree preservation order
legislation, the Government proposed to limit the dangerous trees
exemption so that in future it would allow only the minimum works
necessary to remove the cause of the danger. If only part of a tree was
dangerous, only that part could be removed. My proposal would enable
the Government to honour that commitment. I am aware that it was a
previous Conservative Government who made it and failed to deliver on
it, but I am sure that Ministers would agree that it was a reasonable
one at the time. It is just a pity that it was not
delivered. The
Bill simply repeals section 198(6) of the 1990 Act. The replacement
provisions will enable the Secretary of State or Welsh Ministers to
make regulations to cover almost anything, but which do not relate
specifically to situations that are currently exempt. The proposed
provision makes it plain that works to alleviate a danger are always
exempt from the need for consent. It also makes it clear that the
exemption cannot, and must not, be misused or abused, and it justifies
the carrying-out of the minimum works immediately
necessary—again, that is exactly in line with listed buildings
legislation, where the corresponding exemption was tightened up in 1986
with precisely the same aim as my
amendments.
The
second part of the exemption in section 198(6) of the 1990 Act, for
works to abate a nuisance, was considered in the Court of Appeal, in
the case Perrin v. Northampton, just before Christmas. The scope
of that exemption is now very uncertain. The right way to deal with
that dilemma is to remove that exemption altogether, which would be a
matter for regulations that would be made in due course. It would also
be prudent to lose the “dead or dying” exemption
altogether—again, as in Scotland—but that, too, would be
a matter for the regulations. If a tree is dead or dying, and if it is
dangerous, works could be carried out without consent—because of
the danger, not because it is dead or dying. Otherwise, there is no
logic in the exemption. For all those reasons, it would be sensible to
have the “danger” exemption tightly drafted in primary
legislation, rather than leave it to the
regulations.
The new
clauses propose a register of trees which, following discussions, I
have tried to make as simple as possible. It is not a requirement, and
the responsibility would not be placed on the
shoulders of a specific body. In the past, we have considered giving
responsibility for such a register to English Heritage or equivalent
bodies in Wales, or other alternatives such as the Countryside Agency
or Natural England. I do not think that it is necessary for us to take
such decisions. Indeed, an agency outside Government, or a voluntary
organisation, may be the most appropriate body to draw up the register,
which Ministers would then recognise. That would be the best of both
worlds.
The
amendments would provide flexibility—they give the Government
the capacity to recognise the importance of those trees, some of which
are visited by thousands of people every year and are a part of our
very valuable heritage—without creating a
bureaucracy, so to speak, or placing additional burdens, particularly
financial ones on Government agencies. It is envisaged
that works to register trees would simply be notified to the planning
authority, as applies to non-TPO trees, in conservation areas. That
pattern already exists, and it works perfectly well, as those of us
with experience of conservation know. The new procedure would actually
lead to a lighter
touch. Planning
authorities use tree preservation orders in a wide variety of
situations, so no consistent standard applies nationally. That should
be compared with measures to protect historic buildings, which are
listed by the Secretary of State or Welsh Ministers on the advice of
English Heritage or Cadw on the basis of nationally applied standards.
The production of a simple, straightforward and nationally supervised
register that lists only the most valuable trees—it is therefore
not a big bureaucratic list—would allow the protection of those
particularly valuable trees and introduce a mark of excellence for
trees of national importance, as opposed to those selected by local
authorities merely because they are quite nice. There would be no
question of trees being designated on the basis of groups in certain
areas.
Finally,
unless there is a guarantee that the dead or dying exemption is
removed, planning authorities often decline to make tree preservation
orders on veteran or ancient trees, as their removal might not require
consent. While a register could be produced and maintained on a
non-statutory basis, as is the case with the register of historic parks
and gardens in Wales, a statutory register, as used in England, would
have more weight, for example, as a material consideration in
determining planning applications. I believe that the protection of our
most precious trees, as illustrated in that book, and a recognition of
the risk to them, as illustrated in the case that I mentioned and in
other cases, would be a considerable step forward in recognising an
important part of our national heritage, and I commend the amendment
and the new clauses to the
Committee.
Mrs.
Lait:
I congratulate the right hon. Gentleman on tabling
the amendments and new clauses, and I join him in
hoping that the Government will accept them, particularly the new
clauses. I congratulate the Woodland Trust, both on its initiative and
on the work that it is already doing to seek out the ancient trees that
it believes should be registered. I have never come across an
organisation so open to being the registering body.
If the
Government do not accept the new clauses, I hope that they accept the
argument and introduce with their own proposals. I understand in
principle why the Government want to move tree preservation orders into
a regulatory system, but I am concerned that it is a centralising
measure. Equally, as one travels around the country, one is aware that
different local authorities operate wide and varying standards on which
trees should be covered by tree preservation orders. However, I am
concerned by about the scope of the new regulatory structure and the
trees that it would cover, so I hope that the Government will assure us
that it will not be drawn as broadly as possible, otherwise we will
find unremarkable trees listed with preservation orders when there is
absolutely no need to do
so.
I
also wish to know whether the Government think that all trees in town
parks should be listed, remarkable or not. Anyone who has lived
anywhere near a sycamore knows precisely how many small sycamores
spring up each year and the sheer work that goes into ensuring
that they do not grow any more. Having said that,
those few that grow to full height are magnificent specimens, so one
has to be reasonable-minded about how to approach the regulation of
trees.
Mr.
Llwyd:
I once dealt with a tree
preservation order on some sycamore trees, and I recall that a sycamore
tree is treated as a weed, not a
tree.
Mrs.
Lait:
As someone who contends with the
problem on an annual basis, I agree that they are weeds. However, a
full-grown sycamore is a magnificent tree, and one would not wish such
a tree in a key setting to be omitted from the listing. Given that
sycamores grow as weeds, however, there are times when one would not
wish to make an
order.
Inadvertently,
as so often happens with regulation, a completely inappropriate class
of use comes in. That is my concern with the transfer of tree
preservation orders, which are decided locally, to a national system of
regulations.
6.30
pm
Mr.
Curry:
I am sympathetic to what the right hon. Gentleman
describes, but I should like a couple of reassurances that, when an
organisation wishes to restore, for example, an
historic garden, the tree preservation order will not prevent it from
restoring the garden to what it looked like, for example, in the 18th
century. In my constituency, near the village of Grewelthorpe, there is
a site called Hackfall, where the ground descends to the River Ure. In
the 18th century, it was a famous garden—so famous that
Catherine the Great had a dinner service with scenes from Hackfall
printed on it. It is now hopelessly overgrown, but I think that the
Woodland Trust is now the owner, and the land is gradually being
restored.
Perhaps even
more famous is Fountains abbey, including the magnificent Studley Royal
water garden, which hon. Members from Leeds will know about. The garden
was laid out by John Aislabie, who was Chancellor of the Exchequer and
made a packet from the South Sea bubble, which just goes to show that
ill-gotten gains can be put to uses that benefit generations to come.
The National Trust has restored magnificently that old 18th century
water garden, which was a huge task.
I want to be
certain that, if organisations seek to restore historic gardens, for
example, and that necessitates the removal of plants, vegetation and
trees that have subsequently grown up when the garden was neglected or
simply became overgrown, nothing that is proposed will stand in the way
of the re-creation of those magnificent areas. One of the greatest
cultural achievements of this country is its
gardens.
Mr.
Dhanda:
I congratulate my right hon. Friend the
Member for Cardiff, South and Penarth and the Woodland Trust on the
work that they have collectively put into the amendments and the new
clauses. Under the present tree preservation order system, a maximum
fine of £20,000 may be imposed when protected trees are felled
or otherwise destroyed without consent. A lower fine of up to
£2,500 is payable for other contraventions
of the system, such as the failure to obtain the local planning
authority’s consent before pruning a tree.
We need to
take a closer look at my right hon. Friend’s amendments Nos. 439
and 440, because we believe that the two-tier approach is the most
proportionate way forward. It is right that Parliament should recognise
that some offences are demonstrably graver than others and reflect that
in our legislation. A fine of £2,500 is not insignificant; it is
the equivalent of level 4 on the standard scale that we have talked so
much about over the past few weeks.
Some say that
£2,500 is nothing to an unscrupulous developer who is keen to
maximise the value of a site, but let us remember that we are talking
about only the unauthorised pruning of trees. The unauthorised cutting
down of trees is subject to a maximum fine of £20,000—so,
too, is any excessive pruning that is so badly executed that it
effectively destroys the tree as an amenity worth preserving. Case law
has made that clear, too.
The
amendments would have a further purpose. Under amendment No. 439,
anyone accused of unauthorised tree works would have a defence if they
could show that the works were urgently necessary on grounds of health
or safety and limited to the minimum needed under the circumstances. I
hope I can persuade my right hon. Friend that these matters are best
considered not in primary legislation, but in regulations, and I hope
he will continue to liaise and work with our officials and with the
Woodland Trust.
The Bill
includes the power to introduce regulations, including a power to make
prohibited works subject to exceptions, which is something the
amendments mention. I assure my right hon. Friend that we will
carefully consider the objectives of his amendments when preparing and
consulting on those regulations. Most people would agree that exempt
works to protected trees, in the interests of health or safety, should
not be open-ended; they should be limited to what is needed to deal
with the problem. We will give careful thought to all this and consult
widely on the detail to ensure that we get the wording right.
Turning to
new clause 16, together with amendments Nos. 441 and 442, under the
current system, trees that are situated in conservation areas have a
form of blanket protection. Before carrying out felling or pruning
works to such trees, one must first give the local planning authority
six weeks’ notice, thus giving it the opportunity to consider
whether the trees merit a tree preservation order. Local planning
authorities receive, on average, 120 such notices each year, resulting
in an average of only three new tree preservation orders per
authority.
The
amendments would extend the six week notification system to all trees
in England and Wales, whether on private or public land. On the face of
it, therefore, subject to whatever exceptions were included in the
regulations, the felling or pruning of all trees would become subject
to local authority control. However, we do not believe that the current
system is failing. The last comprehensive review of the system
concluded that it had stood the test of time and that its basic
framework should be retained.
The extension
of a blanket control for trees on the scale provided for in new clause
16 would impose significant new burdens on local authorities. The 120
or so notices received under the current system would end up increasing
very significantly indeed; yet under the current system,
only one in 40 notices results in a tree preservation order. I
appreciate that the new clause would allow exceptions to the rule,
which would be set out in regulations, and that those exceptions might
reduce the number of trees subject to blanket protection. However, it
is important that we do not extend the controls, and thus new
restrictions on landowners, without first being satisfied that they are
necessary. Turning
to new clause 15, in our view a good framework for protecting special
trees is already provided under the tree preservation order system, the
felling licence system and our system for safeguarding sites of special
scientific interest. Before embracing an additional statutory
designation, we would have to be satisfied that current statutory
systems were deficient. We are not convinced that they are deficient.
Existing sites of special scientific interest include many of the most
important concentrations of veteran trees and ancient woodlands, such
as the New forest, Sherwood forest and Windsor great park. Criteria
have also been developed that enable the designation of such sites of
special scientific interest solely on the basis of a concentrated
veteran tree
population.
Turning
to the tree preservation order system, I am conscious that there are
those who say that it is ill equipped to protect some of the most
outstanding veteran trees. I hope that I can reassure my right hon.
Friend. First, when considering whether to make preservation orders,
local authorities have a wide discretion. In my Department’s
view a tree’s historical or cultural importance may be
sufficient to justify making a tree preservation order. Many veteran
trees are important for their historical or cultural
associations.
Secondly,
it is said that special trees may not be protected by tree preservation
orders unless they are at risk. Let us be clear: the legislation states
that an order may be made where it appears expedient in the interest of
the amenity. There is no reference to trees having to be at risk. If it
is helpful to my right hon. Friend, we will look again at our guidance
on the issue to clarify that
point.
Finally,
it is said that veteran trees are compromised because, under the
current legislation, consent is not needed to carry out works to trees
that are dead or dying or have become dangerous. That is a valid
concern. At present, the exemption is in the 1990 Act, so we have had
limited opportunity to reform it, but the Bill provides us with the
opportunity to do so. Our favoured approach is to move the exemption to
regulations, and the Bill makes provision for us to do
so.
Again,
I assure my right hon. Friend that we will look critically at the
exemption when we develop the regulations, with a view to ensuring that
adequate provision is made for the protection of veteran trees.
Therefore, a national register, which of itself would provide no
additional protection, is not necessary. I applaud the work of the
Woodland Trust and others in taking forward their ancient tree hunt,
which seeks to identify veteran trees around the UK, and in securing
the long-term protection of such trees. However, in our view, that is
best pursued with local authorities and others who already have the
statutory powers to take
action.
I
therefore hope that my right hon. Friend will withdraw his amendments,
taking on board my comments in the spirit that they are intended. Let
us engage further with
the Woodland Trust and others who have an interest
in these issues, to ensure that we get the regulations absolutely
right.
Alun
Michael:
I am grateful to my hon. Friend. He has obviously
thought deeply about the issues raised in my amendments and new
clauses, and he has clearly taken the trouble, with his officials, to
engage with the issues. I think that I can describe the response as
sympathetic, but it does not perhaps move as far as I might have hoped.
However, he held out the prospect of further
engagement.
I should
be grateful if he agreed to meet me, perhaps with the Woodland Trust,
to discuss the matter further, rather than detaining the Committee at
this stage. I hope that he would be able to persuade me in such a
meeting—he is on the verge of doing so now—that he
intends to deal with most of the objectives absolutely in his
regulations. But I also hope that I could persuade him further on the
idea of the single offence and the value of the
register.
Mr.
Dhanda:
My right hon. Friend is very persuasive, and I
would be happy to meet him. I also have a copy of that book, for which
I am very grateful, and it is
signed.
Alun
Michael:
I am grateful to my hon. Friend. Applications in
triplicate from any other member of the Committee are invited. On the
basis of my hon. Friend’s willingness to engage further, I do
not wish to detain the Committee at this stage. With a view perhaps to
tabling amendments on Report in the light of further discussion or to
there being an initiative from the Minister by then.
Amendment agreed to.
Clause
157
ordered to stand part of the Bill.
Schedule 3
agreed
to.
Clause 158
and 159
ordered to stand part of the Bill.
Schedule 4
agreed
to.
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