December 15th, 2016 by James Goudie KC

“The legislative regime for tree preservation orders does not stand apart from the comprehensive statutory scheme for land use planning. It is an integral part of that statutory scheme, and an important one”: per Lindblom LJ at paragraph 38 in Barney-Smith v Tonbridge and Malling Borough Council (2016) EWCA Civ 1264.

There are two means by which a LPA can achieve formal protection for trees and control over work to trees which have been given such protection: (1) the imposition of conditions on the grant of planning permission; and (2) the making of TPOs. “They can be used in combination with each other, or separately.” That is left to the LPA’s discretion.  An authority’s power to make a TPO, and the consequent statutory protections for the tree(s) included in the TPO, “complement” its functions in making decisions on proposals for development, including its power to impose conditions on grants of planning permission.  See also per Elias LJ at paragraph 60.

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