TREE PRESERVATION ORDERS: COMPENSATION (Hansard, 21 June 1988)

The Minister of State, Department of the Environment (The Earl of Caithness)

My right honourable friend, jointly with my right honourable friend the Secretary of State for Wales, has laid before the House the Town and Country Planning (Tree Preservation Order) (Amendment) Regulations 1988, which come into operation on 30th June. This is an interim measure taken in response to the widespread concern about the continued effectiveness of tree preservation orders on woodlands in the light of the implications of the 751WA Court of Appeal decision for the compensation payable by local authorities. We are undertaking a general review of tree preservation policy and legislation, and the appropriate scope of arrangements for compensation will be considered further as part of that review.

The new regulations will bring the compensation provisions for those trees in woodlands which do not require a Forestry Commission felling licence into step with the compensation provisions applicable to non-woodland trees protected by tree preservation orders. Local authorities will be enabled, when refusing consent to fell a woodland protected by a tree preservation order, to certify, in appropriate cases, that the trees have "outstanding or special amenity value". The effect of such a certificate will be that no compensation will be payable as a result of refusal of consent. However there is a right of appeal against certification to the Secretary of State, who may cancel the certificate. Accordingly, the interests of owners will be adequately safeguarded under the new arrangements.

Local authorities will also now have the opportunity to consider whether any tree preservation orders previously made should be varied to reflect the amending regulations. My department and the Welsh Office have written to them today to draw their attention to the regulations.

In order to ensure a comparable degree of protection for woodlands containing trees which are above the thresholds for Forestry Commission felling controls, the commission has agreed to change its practice in dealing with applications for a licence to fell trees in woodland which is subject to a tree preservation order. Where the purpose of such an 752WA application is to convert the land to agricultural use after felling, or in any other case where the applicant has not stated an intention to continue to use the land as woodland, the Forestry Commission will in future consider the application itself rather than refer it to the local authority to decide. In considering such applications the commission will be guided by its general presumption against the granting of felling licences to convert woodland to agricultural use, and will also take amenity considerations into account. Any claim to compensation as a result of refusal of consent will be against the commission and will be determined under forestry legislation. It is only in the exceptional case where the commission proposes to give consent that the matter would be referred to the Secretary of State for decision if the local authority objected, and that compensation would then be payable on the same basis as in the Canterbury case if consent were refused.

On the other hand, where the Forestry Commission receives an application for a licence to fell trees subject to a tree preservation order and the application is accompanied by proposals for replanting, the commission will continue to follow its present practice and refer the application to the local authority to deal with. In those circumstances, any claim to compensation as a result of refusal of consent would be against the local authority and would be determined under town and country planning legislation. But, in view of the replanting proposals that would have been submitted, we are advised that the amount of any compensation, being limited to the actual loss or damage caused or incurred, would be likely to be much more modest than in the Canterbury case.