RESTRICTION ON PLANTING OF TREES, ETC. IN OR NEAR CARRIAGEWAY (Hansard, 17 February 1970)

§ Dr. Dickson Mabon
I beg to move Amendment No. 26, in page 12, line 38, leave out '(shrubbery in centre of street)' and insert '(planting of trees in street), any provision in any local enactment having the like effect as that section'. The Amendment does two things. First, it makes a purely drafting alteration in the reference to the powers in Section 14 of the Burgh Police (Scotland) Act, 1903. The rubric to that section of the 1903 Act reads, Shrubbery in centre of street", but this is not entirely accurate, since the relevant part of the section covers more than shrubbery in the centre of streets, and includes the planting of trees or shrubs anywhere in any street.
Second, the Amendment preserves the powers of local authorities which operate under similar local Act powers—for example Edinburgh and Dundee—and it is noteworthy that Section 14, and more particularly the local powers in Edinburgh and Dundee, give local authorities control over planting in private as well as public streets, and are therefore additional to any powers conferred by Clause 8 of the Bill. I think that this is a welcome Amendment.

§ Mr. Brewis
I think that the Amendment is satisfactory. We have recently had a report from the Special Housing Advisory Committee which said how important it was that trees and shrubs should be planted on council estates, and that these plants made a tremendous difference in built-up areas.
I thank the Minister for sending me a letter about the planting of poplars at the side of roads, in which he pointed out the technical reasons why this is not a good thing to do in Scotland. I am a little alarmed about the distance of 5 metres from the edge of the road, because I think that there are still woods as close to the road as that, but in general the Amendment is very satisfactory.

Earl of Dalkeith
I beg to move Amendment No. 27, in page 12, line 41, 281 leave out "made-up carriageway" and insert "road".

§ Mr. Speaker
I have suggested that with that Amendment we can take Amendment No. 30, in page 13, line 11, leave out subsection (4), which is linked with it.

Earl of Dalkeith
Is it necessary to be quite so pedantic about this? Could we not talk about a road, as we have done throughout the earlier parts of the Bill? Why is it necessary to start referring to a "made-up carriageway", and then have to give elaborate explanations of what is a made-up carriageway? Could we not, for the sake of simplicity, insert "road" instead of "made-up carriageway"?

§ Dr. Dickson Mabon
We have had representations from a number of people—and we shall come to these in a moment—about a person's right to plant trees, and so on, in his own garden. If we were to accept the Amendment the complaint would be somewhat aggravated, to put it mildly.
If we said "road" instead of "made-up carriageway", we would extend considerably the distance within which the planting of trees or shrubs would be prohibited. In Clause 48, by definition "road" includes the verges, so that the Amendment would prevent planting within five metres from the boundary of the road, which would extend the prohibited area further into land in private ownership on both sides.
In any case, it is desirable that the prohibition on planting should be related to distance from the made-up carriageway. The object is to minimise such evils as roots undermining the carriageway, leaves dropping on to the carriageway, where they cause skidding in many cases, and so on. There is no great necessity to protect verges outside the metalled part of the road. To the extent that it is desirable to prevent damage to footways, this also would be covered by the Clause as drafted.
I agree that the second Amendment is consequential. If the hon. Gentleman waits for a later debate, he will see that if we were to accept this Amendment we would aggravate the people whom we have been trying to placate. I hope that the hon. Gentleman will allow us to get 282 to Amendments Nos. 28 and 47, rather than continue with this argument.

§ Dr. Dickson Mabon
I beg to move Amendment No. 28, in page 12, line 41, at end insert 'without the highway authority's consent which shall not be unreasonably withheld'.

§ Mr. Speaker
I have suggested that with that Amendment we can take the following Amendments: No. 29, in page 12, line 41, at end insert 'without the consent of the highway authority'. No. 48, in Clause 48, page 26, line 42, after first authority', insert as references'.

§ Dr. Mabon
May I address myself first to Amendments Nos. 28 and 47. As I hinted in the previous debate, these Amendments, taken together, are intended to meet representations which have been made by, among others, the Association of County Councils, the National Farmers Union of Scotland, Glasgow Corporation, Glasgow Tree Lovers Society, and the Civic Trust, that the Clause as drafted is too restrictive and could prevent farmers from growing crops, or persons from planting flowers within their gardens, if the distance from the edge of the carriageway were less than five metres.
My right hon. Friend the Member for Edinburgh, East (Mr. Willis) made an earnest plea about this, and my hon. Friend the Joint Under-Secretary of State indicated at c. 189 of the Committee's proceedings that the drafting of subsection (1) would be reconsidered. The main Amendment is in Clause 48 Amendment No. 47, where the definition of "shrub" as including a plant of any description is deleted. The reference to trees or shrubs therefore cannot be taken as relating to flowers, farm crops, and so on, in Clauses 19 and 20. The wider definition will, however, be retained in Clause 8, where it is necessary to enable highway authorities to plant flower beds, and so on. This restriction on the categories of plants which are prohibited gets over a good deal of the difficulty that has been felt about the Clause.
Amendment No. 28 provides more flexibility in regard to the planting of trees and shrubs, and I hope that it will 283 commend itself to the hon. Gentleman. Instead of there being a flat prohibition on such planting, highway authorities are empowered to consent to the planting of trees and shrubs within five metres from the edge of the carriageway, and their consent is not to be unreasonably withheld. This will give highway authorities discretion to allow the planting of trees and shrubs of suitable types for the situation. The Government Amendments, taken together, will give the flexibility which was missing from the Clause as drafted while still enabling highway authorities to control the planning of poplars or forest-type trees too close to the carriageway.
Amendment No. 29 to some extent duplicates Amendment No. 28. Moreover, it does not go quite as far as our Amendment does. Let us say that on this occasion the good Lord is on the side of the angels. I hope that the hon. Gentleman will allow our Amendment to be made in preference to his.

Earl of Dalkeith
I welcomed the sight of the Minister's Amendment, which appeared before I had tabled my own which has more or less the same effect. I agree with the Minister that we shall still suffer from a bit of restriction which is rather unnecessary, and I suggest that before the next stage of the Bill he should consider linking the Amendment with two metres instead of five metres. This would meet the point made so eloquently in Committee by the right hon. Member for Edinburgh, East (Mr. Willis).

§ Mr. Speaker
Order. The noble Lord is speaking to an Amendment which is not before us at the moment.

Earl of Dalkeith
I think that the Amendment is a considerable improvement. Nevertheless, those who have gardens on the edge of a highway, as happens in Edinburgh, will still frequently have to ask permission before they can plant certain trees and shrubs in their gardens. One wonders whether it is necessary for them to have to do this.
By Amendment 47 the Minister of State is depriving us of the definition of a shrub, which is perhaps rather a pity. It is quite easy to define. A shrub can be many things. It may be a prepared drink consisting of fresh orange or lemon mixed with rum. I personally prefer the 284 interpretation normally put on it, a woody plant smaller than a tree. This would have done admirably. It can mean a twig, sprig or sprout or, according to the Oxford Dictionary, a mean, inferior, insignificant person.

§ Mr. Speaker
Order. I am enjoying this, but we are dealing with whether a highway authority's consent should or should not be given and whether it should not be unreasonably withheld.

Earl of Dalkeith
I thought we were taking also Amendment No. 47, which concerns the definition of a shrub?

§ Mr. Speaker
I apologise wholeheartedly. I had forgotten Amendment No. 47—back to the various definitions of shrubs.

Earl of Dalkeith
Oddly enough, Mr. Speaker, I have finished my definitions. May I suggest that the Minister considers putting in the sensible definition of a woody plant smaller than a tree. My reason for suggesting this is linked with Clause 8 where a special definition is given to "shrub" in that context. It means a plant of any description. This could include noxious weeds like thistles or willow-herb, which can sow themselves on adjoining land. This would be in contravention of an Act which was passed in 1962 or 1963. I invite the Minister to look again at this.

§ Mr. Willis
I, too, thank my hon. Friend for moving this Amendment, which gives a much greater degree of flexibility. I still think that there are difficulties. For instance, the noble Lord and I live in North Edinburgh, which has many squares containing beautiful gardens, and the trees and shrubs in those gardens are certainly not 5 metres from the highway. Does this mean that every time the gardener wishes to replant anything he has to go to Edinburgh Corporation to get permission? The Clause still seems to be restrictive.
There are many miles of country roads which are tree-lined and the trees are hardly 2 or 3 feet, never mind 5 metres, from the highway. If a tree is blown down in a gale, or a farmer thinks that a tree is getting old and should be replaced, he has to go to the county council to ask for permission to plant a tree where a tree may have stood for hundreds of years. Although I am grateful for 285 what my hon. Friend has done, there are still certain difficulties which might be looked at at a later stage of the Bill.

§ Mr. Buchanan-Smith
I thank the Minister for moving the Amendment. He mentioned several bodies which have made representations to him. One body which made representations to me was the Scottish Association of Registered Housebuilders, whose members are concerned with development. They found difficulties in the original Clause. The local authorities to which they have to go for planning permission often insist on planting schemes within the development. As the Clause stood there could be an element of conflict between what the Bill laid down and what the local authority required the developers to do.
It is generally accepted that there will always be conflict on these matters. On the one hand, we try to ensure safety on the roads and avoid damage to trees and, on the other hand, we want to see greater amenity and more trees. To the extent that the Amendments make tree planting possible, albeit permission from the local authority is required, I welcome them. I congratulate my noble Friend on his persistence in this matter of the shrubs, and I welcome Amendment 47. Previously the gardener envisaged by the right hon. Member for Edinburgh, East (Mr. Willis) would have had to seek permission not only to plant or replant a shrub but to plant a pansy. Clearly, the Amendments were necessary, and I welcome them.