At Liam McGough Tree services we aim to provide you with accurate up to date information about your trees to help you make informed decisions.
Two types of Law in UK:
1. Common Law
2. Statute Law
1. Common Law:
No Jury – Judge makes decision Based on:
Law of precedent
Changes over time
Cases heard in Civil / County Court
2. Statute Law:
‘Law of the sovereign Power’
Determined by Acts of Parliament and Regulations (Regulations are based on an Act that has already been approved, and served as a means to make the Act easier to understand and adhere to)
Lesser (summary) offences heard in a Magistrate’s Court
Serious offences – Crown Court – Judge and Jury
UK Legislation (Acts), UK Regulations and EU Regulations are all statute law
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Common Law Related to Arboriculture
Ownership:
Person who owns the land that the tree is on, owns the tree
Deeds / Plan should show who is responsible for a -------- Boundary
Ditches – ownership conventionally on the outside of he ditch, as spoil from clearing your own ditch can only be placed on your land --------------------------------------------
Overhanging branches:
Right exists to cut back to boundary, tree owner has no obligation to pay for this
Cannot enter neighbouring property without permission – cutting down the tree would be criminal damage
Owner has a responsibility to stop anything ‘escaping’ from his property that will stop a neighbour enjoying theirs – includes roots
Neighbour can cut back to boundary above and below ground. If cutting back causes damage that is proven to cause failure of tree, neighbour would be liable. Includes roots
Cannot climb the tree to operate work – trespass
If tree fails as a direct result of pruning action he may be liable for damages
An injunction can be sought from the court forcing owner to address a foreseeable danger – i.e. tree about to fall and cause damage / injury (Actionable Nuisance)
Local Government (Miscellaneous Provisions) Act 1976 – if he refuses to act the neighbour can approach LPA who can serve an order forcing action
He must be aware of the possibility of legally protected wildlife being present – an offence will be caused if he is guilty of disturbance to protected species
Arisings:
Should be offered back to the owner, cannot throw them over the fence
Owner has no obligation to take them, neighbour must then dispose of them
Mynors says they can be placed back on owner’s property as long as you don’t set foot on the property
Fruit:
Fallen fruit remains the property of the tree owner
Legal right to enter neighbouring property to collect fruit, as long as no damage is caused, and they don’t linger
The owner does not have to collect the fruit or leaves
Poisonous elements:
‘Duty of care’ owed to neighbour by tree owner (i.e. if animal eats poisonous berries and dies, the tree owner is liable)
If cattle lean over or enter property, the responsibility then lies with the owner of the boundary
Access:
If owner wants to prune his own tree, he cannot enter the neighbouring property without permission (See Access to Neighbouring Lands Act 1992)
Damage or prediction of damage from tree: (Actionable Nuisance)
Neighbours can apply for an injunction to force the owners to manage the tree
Apply in the Civil or County Court
Injunction can be for the life of the tree
‘Law of Joint and Several Damages’
“If action is taken against a named individual, and then it is discovered that trees in other ownership are also causing problems, if the judge finds in favour of the plaintiff, it is the named individual’s responsibility to show others’ liability, or he will be held liable for all damages”
Up to the person who action is taken against to prove that he is not liable for the other trees and does not own them
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Statute Law Related to Arboriculture
Access to Neighbouring Lands Act 1992
If a property owner has a need to access a neighbouring land to carry out work on their own property, and the neighbour unreasonably refuses, an order can be issued to force allowed access
There must be a viable need to enter the property
Highways Act 1980, and as amended 1986
Section 154
Notice served to prune vegetation obstructing passage of vehicles or pedestrians (14 days)
Or obstructing the view of drivers, signs, light from a streetlight, etc
Or threatening the highway by falling
Vehicles – 5.2 metres, pedestrians 2.4 metres
Owner will have to prune or remove
If refused HA can enter land to do the work
He will be charged and have to clear arisings
Section 294
Allows courts to authorise entry onto private property to carry out works associated with Section 154 notice
Section 138
It is an offence to plant a hedge bounding the highway without the Highway Authorities permission
Section 141
It is an offence to plant a tree within 15 feet of the centre of the carriageway
Section 161
It is an offence to light a fire which results in danger to road users
Other sections relating to planting of trees on roundabouts and central reservations (branched to ground to limit visibility); notices served to restrict new planting or remove existing planting which causes danger on bend or junction; offence to erect a notice on a highway tree; warning signs and barriers must be used when working on the highway
Occupiers Liability Acts 1957 and 1984
‘Occupier’ (tenant etc) has a ‘Duty of Care’ to people entering the property
1957 Act covered 2 types of people:
‘Invitees’ – A person entering land without contract but on business of interest to both himself and the occupier
‘Licensees’ - A person entering with the occupiers expressed or implied permission but with no community of interest
1984 Act extends duty of care to
‘Persons other than visitors’, including trespassers, and people exercising private rights of way
Duty of care is owed by occupier if;
He is aware of the danger or has reasonable grounds to know it exists
He knows or has reasonable grounds to believe that the non-visitor is in the vicinity or may come into the vicinity of the danger concerned
The risk is one against which he may reasonably be expected to offer some protection
Different liability owed to children, people with expert knowledge, and trespassers
The Prescriptions Act 1832
Right to Light – If they have enjoyed undisturbed light for at least 20 years
Does not apply to incremental growth – only to instant detrimental change
The Local Government (Miscellaneous Provisions) Act 1976
Section 23/24 – If someone is threatened by a tree in another’s ownership the Local Authority can serve a notice to the owner forcing them to do the work. If they still refuse, the LA can access the land, deal with the tree and seek to recover reasonable costs (Person who is threatened can deal with this scenario under Common Law)
Forestry Act 1967
Felling Licences - Licence not required if:
You fell no more than 5m³ and sell no more than 2m³ in any calendar quarter
Felling less than 8cm diameter }
Thinning less than 10cm diameter }
Coppicing less than 15cm diameter }
For tree pruning
If a Forestry Commission Grant Scheme is in place
If trees are dead, dangerous, or causing an ‘actionable nuisance’
If an Act of Parliament in place (i.e. a Section 154 notice)
If the tree is in a garden, orchard, churchyard, public space
If planning permission has been gained and work is part of implementing that development
For the purposes of maintaining utilities
Wildlife and Countryside Act 1981 (as amended)
Wild Birds – Schedules 1-4
‘It is an offence to kill injure or take any wild bird, or to take damage or destroy its nest while in construction or use, or take or destroy any of its eggs’
Schedule 1 – Birds afforded extra protection – ‘It is an offence to disturb intentionally or recklessly whilst building in or near a nest containing eggs or young or the dependant young of such a bird’
Schedule 2 part 1 – Exemptions - No birds (from 1993) are treated as pest birds. Birds that can be killed or taken outside the closed season can only be done so under license
Wild Animals – Schedule 5
(Only animals listed in Schedule 5 are protected) – ‘It is an offence to intentionally kill, injure or take, or intentionally or recklessly damage, destroy or obstruct access to any structure or place used for shelter or protection or disturb any animal while it is occupying such a place’
Wild Plants – Schedule 8
‘It is an offence to intentionally pick, uproot, trade in, possess for the purpose of trade, or destroy any plant listed in Schedule 8. It is also an offence for anyone, other than an authorised person, to uproot any wild plant’ (1 tree in the list – Plymouth Pear, Pyrus cordata)
Schedule 9
Lists non-native species which it is illegal to release or plant
Licences
Can be granted to allow otherwise illegal acts either for the well-being of protected species or where there is a threat to public safety
Breaches
Prosecution can be brought by police or a Local Authority within 6 months of evidence coming to light and within 2 years of the offence
Penalties
Prison up to 6 months, fine up to ‘level 5’ (£5k at present), per offence
Countryside and Rights of Way Act 2000 (CROW)
CROW gave the public rights of entry for the purpose of recreation to ‘access land’
‘Access land’ includes areas shown as ‘open country’ on maps (Moor, Mountain, Heath, Down or Common land)
Act removed liability from occupiers – ‘duty of care’ not recognised on natural features
Public Rights of Way – Encouraged the creation of new routes and clarification of existing ones, and enabled the diversion of rights of way to protect SSSI’s
Wildlife – Introduced a concept of a reckless offence being committed against listed wildlife (no longer an offence to plead ignorance)
The Conservation (Natural Habitats etc) Regulations 1994 (European involvement)
Regs about European Protected Species (EPS) and designation of sites where there are EPS
SPA’s – Special Protection Areas (relating to birds)
SAC’s Special Areas of Conservation
SSSI’s are UK domestic protection – sites can be designated all three
European designation is more powerful (European Court)
How we get SAC’s? – Secretary of State proposes a list of sites to EU – if agreed it gets interim designation of ‘Sites of Community Importance’, then SOS has 6 years to get them up to full SAC status
Government has powers of ‘compulsory acquisition’ – can take private land and designate as SAC
‘It is an offence to deliberately capture, kill, disturb, or trade in the animals listed in schedule 2 and pick, collect, cut, uproot, destroy or trade in plants listed in schedule 5’ – Offences can be licensed for science and education, conservation and public health and safety
The Conservation (Natural Habitats etc) (Amendment) Regulations 2007
Clarified what ‘deliberately’ meant – got rid of the incidental result offence – i.e. ‘we didn’t mean to’ is no longer an offence as deliberate meant ‘accepting the possibility’ – i.e. deliberated / thought about it
Threshold of deliberate raised – deliberate disturbance must be likely to significantly affect a significant population of the local distribution or abundance of that species
The Conservation (Natural Habitats etc) (Amendment) (England and Wales) Regulations 2009
Changes as follows:
‘Surveillance’ more detailed provision made for surveillance to be determined by the priority of the species concerned – keep a close eye on severe risk species
Incidental offences – records of such incidents must be kept, and the results used to determine the need for any research or conservation measures
Disturbance – now includes anything likely to impair ability to survive, breed or reproduce, rear or nurture young, hibernate or migrate
Guidance – published guidance taken into account by the courts when dealing with offences – i.e. you should be up to date
Defences – those defences for tending mercy killing and collecting evidence for prosecution still apply, unless the prosecution shows the defendant was wrong to conclude that there was no satisfactory alternative, and the action was not detrimental to the species concerned
The Conservation of Habitat and Species Regulations 2010 (All the last three regs and amendments now reside under this heading)
Licensing now required to work with an EPS (European Protected Species)
Licence applied for via Natural England or the Forestry Commission
Licence only granted if risk to public safety, in the interests of conservation, or if there is no detrimental affect, or no alternative (i.e. tree work with bats)
Contractor should keep records of all work
Protection of Badgers Act 1992
Offences – wilfully kill, injure, take a badger or attempt to do so. Possession or control of a dead badger, or any part of, or anything derived from a dead badger. Cruel ill treatment of a badger (use of tongs while taking or killing, digging, and use of firearm other than those permitted). Interfere by damaging or obstructing a badger sett which shows signs of current use, cause a dog to enter a badger sett, disturb a badger within a sett with intent or recklessly. Sale, possession or control of a live badger. Unlicensed ringing, tagging or marking of a badger.
Exemptions – Kill as an act of mercy, an unavoidable result of lawful activity (i.e. running it over), anything authorised under the Animals (Scientific Procedures) Act 1986. To prevent serious damage to land, crops or poultry. For the purposes of hunting foxes with hounds (blocking up badger setts to stop fox running to ground). In the course of a business where licenses have been issued
Licenses – issued for development, road construction, scientific or educational research, conservation, investigating an offence, tree work, etc.
Apply to Natural England / DEFRA
Heavy machinery any closer than 30 metres to a sett – license required
Other work any closer than 20 metres to a sett – licence required
New planting at least 3 metres away from a hole – licence required
Breeding season December to June, (January and February most sensitive)
Red Data Books
Around since 1964
Produced by specialists from around the world
Categories according to how endangered species are:
Extinct
Extinct in the wild
Critically endangered (Extremely high risk of extinction)
Endangered (Very high risk of extinction)
Vulnerable (High risk of extinction)
Near-threatened
Click beetles (violet and scarlet) are on the list and exist only in veteran trees
Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999
Procedure that must be followed for certain types of project (usually big scale – mineral extraction etc, or sensitive site like SSSI)
Purpose to give environmental factors due consideration, and to provide modification or alternatives
Onus is on developer – he has to produce an Environmental Statement, laying out perceived effects and mitigation – should include a non-technical summary
Developer can ask LPA for a ‘screening opinion’ asking if they need to make an environmental statement
LPA has 3 weeks to respond – if required, he can ask for a ‘scoping opinion’ – i.e. what should go into it. LPA has to provide this in 5 weeks
Environmental Statement should accompany Planning Proposal
LPA has 16 weeks to decide and can either;
Grant full permission; with conditions; reject
In Forestry: EIA is required for
Afforestation – 5 Ha or more
Deforestation – 1 Ha or more
Constructing forest roads
Quarrying to construct roads
SSSI’s - (National Parks and Access to the Countryside Act 1949)
Around since 1949
Just over 4000 sites in UK designated (some are SPA’s and SAC’s also)
SSSI’s – wildlife or geology importance. Most will have been influenced by man so will require ongoing maintenance
Notification of SSSI – Through Wildlife and Countryside Act 1981 (as amended)
All owners and occupiers notified
Site is immediately protected after notification
4 month period for objections – then either confirmed or not
Confirmation must be within 9 months of original notification
Licence required through Natural England for any work – called ‘PDO’ – Potentially Damaging Operation
Response should be within 10 working days – if nothing after 4 months, assume refusal
Conditions or time limits can be imposed
Appeals can be made to SOS within 2 months of refusal notice
Work done without permission investigated by Natural England
Penalties:
£20k fine in magistrates court
£unlimited in crown court
Plus restoration costs
£5k fine for not keeping to management notice in magistrates, £unlimited in crown
£2.5k fine for removing or damaging a sign
£200 obstructing an officer or failing to notify change of ownership
The Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991
If you carry controlled waste you must be registered as a carrier
Controlled waste is:
Scrap metal, effluent, clinical waste, unwanted surplus substances, building or demolition waste, anything which is disposed of as broken, worn out, contaminated or spoiled
In Arb terms:
If you produce the waste you do not need a carriers licence
If it is wind blown or someone else has cut it down, you do
If produced on building site – classified as building waste & license is needed
Critical word is ‘waste’ – if everything to be re-used license not needed
The Control of Pollution (Oil Storage) (England) Regulations 2001
Refers to the above ground storage of oil – ‘Oil’ includes: Petrol, solvents, mineral oil, heating oil, lubricating oil, vegetable oil, waste oil
2 requirements:
The structural integrity of the primary container
Requirement for secondary containment
Storage should be:
10 metres or more form a water course
50 metres or more from a bore hole or well
Contingencies in place for spillage (i.e. absorbent spill kits)
Risk Assessment should be done before siting or filling tanks
The Dangerous Substances and Explosive Atmospheres Regulations 2002
In arb terms mostly applies to petrol
Find out risk – put control measures in place – accident procedure – make sure employees are informed and trained
The Environmental Damage (Prevention and Remediation) Regulations 2009
Apply to operators of economic activities
‘Environmental Damage’ refers to:
Adverse effects on SSSI’s
Adverse effects on EPS’s
Adverse effects on surface or ground water
Contamination resulting a risk to human health
Operators must:
Prevent damage in the first place
Prevent further damage once it has started
Provide information to the authority
Carry out remediation as directed
Submit remediation proposals
Pay costs as required
Authorities must:
Establish the damage is actually environmental
Identify the responsible operator
Serve a remediation notice
Types of remediation:
Primary – to restore the actual damage
Complementary – to complement where primary does not fully restore
Compensatory - to compensate while the damage is being restored
The operator has 28 days to appeal on the grounds that:
They did not cause the damage
The damage is not ‘environmental’
A third party was responsible
The activity was authorised
The remediation notice is unreasonable
Natural Environment and Rural Communities Act 2006
Main points:
created ‘Natural England’
created ‘Commission for Rural Communities’
will work together, and with Forestry Commission, Environment Agency and Rural Development Agencies to ensure sustainable development
broadened powers of the Secretary of State to pay grants for suitable ventures
made the conservation of biological diversity an essential consideration of public bodies and statutory undertakers when determining policies
Wildlife Protection:
offence to possess certain pesticides (used for illegal killing)
offence to sell, possess, or transport certain invasive, non-native species
birds bred in captivity and released to get same protection as wild birds
new schedule for birds which re-use nests – Golden and White Tailed Eagles and Ospreys
Habitat protection:
enhanced SSSI legislation
greater pressure on public bodies to notify before carrying out or permitting damaging operations
ignorance of SSSI status no longer a defence
greater power to enter and erect signage
updating of pre 1985 SSSI’s
Rights of Way:
clarified the use of mechanically propelled vehicles on public rights of way, to prevent historical use creating a claim for right of access
extended powers for public path creation
Anti Social Behaviour Act 2003 – Part 8 – High Hedges
The relevant part of the ASBA to this particular issue is Part 8 (which came into force on June 1st 2005): the section dealing with “High Hedges‟. It has come about primarily because of the large number of disputes between neighbours regarding overgrown conifer hedges between domestic gardens, where “reasonable enjoyment‟ of one property is being adversely affected by a hedge next door. The main “culprit‟ has been Leyland Cypress, because of its rapid growth rate and density.
The Department of Communities and Local Government (DCLG) has issued guidance leaflets which are freely available from both local authority offices and their website, and various freely downloadable documents on the procedures which should be followed in the case of a dispute. The part to be played by the local authority is clearly indicated in these publications.
The Act covers two distinct issues:
Loss of light to gardens
Loss of light to windows (of main living rooms)
A “high hedge” is defined as:
“so much of a barrier to light or access as
a) is formed wholly or predominantly by a line of two or more evergreens / semi-evergreens
b) rising to a height of 2 or more metres”
The “acceptable‟ height for such a hedge is described as the ‘Action Hedge Height’ (AHH). If a given hedge is above this height, action should be taken to reduce it appropriately. NB work cannot be ordered that would result in the demise of the hedge, or reduce it below 2m.
Allowance is made for re-growth, whereby it is deemed acceptable to reduce below the AHH by 60 – 100cms.
Procedure for resolving disputes:
The complainant and the hedge owner should endeavour to resolve the matter through discussion (The complainant need not necessarily be resident)
If this fails independent mediation should be sought
As a last resort the local authority can be asked to adjudicate
LA should consider the interests of the wider community as well as complainant and owner (presence of TPO‟s, Conservation Area status, protected wildlife etc.)
LA officer will perform the necessary calculations to determine the AHH (explained below)
LA may then issue a formal notice detailing action to be taken by hedge owner
The hedge owner and complainant have a right to appeal against the notice
Failure to comply is an offence
The order remains with the property
Prosecution could lead to a fine of up to £1000
LA may carry out the works in default and recover costs from the owner
LA may, at their discretion, charge the complainant a fee for their services
The procedure for calculating AHH is as follows:
1) calculate height for the loss of light to gardens
2) calculate height for the loss of light to main house windows
3) take the lower of these two figures
4) if less than 2m, round up to 2m
5) resultant number is AHH
Loss of light to gardens AHH is determined by:
Finding effective depth of garden
Multiplying by the correct factor for orientation
Correcting if the hedge is set back
Correcting for any slope
Effective depth is either
Distance between hedge and opposite end – for rectangular gardens, or
Area of garden ÷ effective hedge length – for more complex shapes
The correction factors:
for orientation varies from 0.65 to 0.25 according to whether the hedge is to the north or south – there being 8 factors in all
distances set back from the boundary (beyond a metre) are added to AHH
degrees of slope are added for gardens sloping down from the house, or subtracted for those sloping upwards
Loss of light to windows :
Depends on height and distance of hedge
Only applies to ‘main’ rooms – such as living, dining, kitchen, bedroom
Does not apply to toilets, bathrooms, storerooms, circulation areas
Applies only to dwellings
Not outbuildings, sheds, greenhouses, summer houses, garages, workshops
Can include glazed doors – if they form a major source of light
For conservatories – the opening into the house is taken as the window position
There are various calculations determine by the angle of hedge to the window. The simplest example being a hedge directly opposite, where the AHH is:
Distance from window to hedge ÷ 2 + 1m
For first floor windows 2.7m (the height of the average floor) is added to the AHH
Hedgerow Regulations 1997 (From The Environment Act 1995)
The criteria for designation as an important hedgerow within the regulations:
Must be at least 30 years old, and at least 20 metres in length (unless one end joins another hedgerow) gaps of 20 metres or less are considered to be part of the hedgerow. The factors below all represent particular archaeological, historical, wildlife or landscape value
There are 8 criteria listed as paragraphs within the Hedgerow Regulations 1997 – these are;
1 – The hedgerow marks a pre 1850 parish or township boundary
2 – The hedgerow incorporates an archaeological feature
3 – The hedgerow is part of or associated with an archaeological site
4 – The hedgerow marks the boundary of, or is associated with, a pre 1600-AD estate or manor
5 – The Hedgerow forms an integral part of a pre-Parliamentary enclosure field system
6 – The hedgerow contains species;
Listed in part 1 (protection at all times) of Schedule 1 (birds which are protected by special penalties), Schedule 5 (animals which are protected) or Schedule 8 (plants which are protected) to the Wildlife and Countryside Act 1981
Categorised as a declining breeder (category 3) in Red Data Birds in Britain published in 1990 for the Nature Conservancy Council and RSPB
Categorised as ‘endangered’, ‘extinct’, ‘rare’ or ‘vulnerable’ in Britain in The Red Data Books
7 – The hedgerow includes;
At least 7 woody species on average, in a 30 metre length; or
At least 6 woody species, and has associated with at least 3 of the features specified below; or
At least 6 woody species, including either a black poplar tree, (Populus nigra) a large-leaved lime, (Tilia platyphyllos) a small-leaved lime (Tilia cordata) or a wild service tree (Sorbus torminalis); or
At least 5 woody species, and has associated with at least 4 of the features specified below
<= 30m; count all woody species
30m – 100m; count all species in central 30m stretch
100m – 200m; count all species in central 30m stretch within each half of the hedgerow and divide the aggregate by 2
200m +; count all species in central 30m stretch within each third of the hedgerow and divide the aggregate by 3
8 – The hedgerow is adjacent to a bridleway or footpath, a road used as a public path, or a byway open to all traffic; and includes at least 4 woody species and has associated with it at least 2 of the features specified below
Associated features are as follows:
A bank or wall which supports the hedgerow along at least ½ its length
Gaps which in aggregate do not exceed 10% of hedge length
Where the length of the hedge does not exceed 50m, at least 1 standard tree – a standard tree is defined as:
Single stem at least 20cm diameter measured at 1.3m
Multi-stemmed tree with at least 2 stems who’s diameters are 15cm or more measured at 1.3m
Where the hedge is between 50m and 100m – at least 2 standard trees
100m+ at least one every 50m (average)
At least 3 ground flora species (listed in section 2 of the regs) within one metre in any direction of the outermost edges of the hedge
A ditch along at least ½ the hedge length
Connections scoring 4 or more points, where a connection to another hedgerow counts as 1, and where connection to a woodland, in which the majority of trees are broadleaved trees, or a pond, counts as 2
A parallel hedge within 15m of the hedge
Five specific locations where hedgerows are covered by the regulations, and one where they are not:
On or adjoining land used for agriculture or forestry
On or adjoining land used for the breeding or keeping of horses, donkeys, ponies
Common Land
Village Greens
SSSI’s or Nature Reserves
Not Covered: Garden Hedges (domestic dwellings)
Six exemptions from the need to submit a Hedgerow Removal Notice:
To make a new opening which substitutes an existing one which gives access to land (as long as the original gap is planted within 8 months)
To obtain temporary access to any land in order give assistance in an emergency
To obtain access to land where another means of access is not available or is available only at disproportionate cost
For national defence purposes
Where development has been authorised by planning permission (or is deemed to have been granted)
To carry out works, under certain Acts of Parliament, for the purposes of flood defence or land drainage
To prevent the spread of, or ensure eradication of, a plant or tree pest
In respect of any felling, lopping or cutting back to prevent obstruction of, or interference with, electric lines and plant, or to prevent danger under the Electricity Act 1989
For the proper management of the hedgerow
Highways Agency – i.e. building new roads (when the Secretary of State is the highway authority)
Process:
Notify council (with hedgerow removal notice)
LPA has 6 weeks to respond with 4 choices
Full consent
Consent with conditions
Issue a HRN (Hedgerow Retention Notice)
Let the 6 weeks elapse
Differences between Hedgerow Regs 1997 and High Hedges legislation:
High hedges = domestic, Hedgerow Regs = Rural
Age consideration with Hedgerow Regs
Length Consideration with Hedgerow Regs
Person that is applying – Owner with Hedgerow Regs, neighbour with High Hedges
Evergreen with High Hedges, deciduous with Hedgerow Regs
Hedgerow Regs about destruction, High Hedges about trimming / management
The Electricity Act 1989 and Telecommunications Act 1984
Both permit service providers to reduce vegetation where there is an interference with overhead services actual or imminent
The Environmental Damage (Prevention and Remediation) Regulations 2009
Apply to operators of economic activities
‘Environmental Damage’ refers to:
Adverse effects on SSSI’s
Adverse effects on EPS’s
Adverse effects on surface or ground water
Contamination resulting a risk to human health
Operators must:-
Prevent damage in the first place
Prevent further damage once it has started
Provide information to the authority
Carry out remediation as directed
Submit remediation proposals
Pay costs as required
Authorities must:-
Establish the damage is actually environmental
Identify the responsible operator
Serve a remediation notice
Types of remediation:-
Primary – to restore the actual damage
Complementary – to complement where primary does not fully restore
Compensatory - to compensate while the damage is being restored
The operator has 28 days to appeal on the grounds that:-
They did not cause the damage
The damage is not ‘environmental’
A third party was responsible
The activity was authorised
The remediation notice is unreasonable
The Treasure Act 1996
an interesting thought – if during the course of his exploits he uncovers some “treasure‟, which includes things like coins and other metal objects which are at least 10% by weight precious metal (gold or silver) he has to notify the local coroner within 14 days of either the day after he finds them, or from when he first realises they’re treasure
rewards may be payable under certain circumstances
failure to comply may result in a prison sentence (not exceeding 3 months) or a fine (not exceeding level 5), or both
National Parks and Access to the Countryside Act 1949
it is possible that the woodland lies within a SSSI, in which case there will be restrictions on the activities that can take place
The Birds Directive 1979
it is also theoretically possible that the area has the designation of Special Protection Area (SPA) by virtue of the birds it supports
TREE PRESERVATION ORDERS
Town and Country Planning Act 1990; Town and Country Planning (Trees) Regulations 1999; Amendment 2008/09
What actions does a TPO prohibit?
The principal effect of a TPO is to prohibit the:
(1) cutting down,
(2) uprooting,
(3) topping,
(4) lopping,
(5) wilful damage, or
(6) wilful destruction…
…of trees without the LPA's consent. The cutting of roots, although not expressly covered above, is potentially damaging and so requires the LPA's consent.
Define ‘tree’
The term 'tree' is not defined in the Act, nor does the Act limit the application of TPOs to trees of a minimum size. Fruit trees, for example, may be included in a TPO provided it is in the interests of amenity to do so. But for the purposes of the TPO legislation, the High Court has held that a 'tree' is anything which ordinarily one would call a tree
Name 3 considerations in an amenity valuation
(1) Visibility: the extent to which the trees or woodlands can be seen by the general public will inform the LPA's assessment of whether its impact on the local environment is significant. If they cannot be seen or are just barely visible from a public place, a TPO might only be justified in exceptional circumstances;
(2) Individual impact: the mere fact that a tree is publicly visible will not itself be sufficient to warrant a TPO. The LPA should also assess the tree's particular importance by reference to its size and form, its future potential as an amenity, taking into account any special factors such as its rarity, value as a screen or contribution to the character or appearance of a conservation area. As noted in paragraph 3.2 above, in relation to a group of trees or woodland, an assessment should be made of its collective impact;
(3) Wider impact: the significance of the trees in their local surroundings should also be assessed, taking into account how suitable they are to their particular setting, as well as the presence of other trees in the vicinity.
What are the different types of TPO, and how are they indicated on a plan?
The trees or woodlands to be protected must be specified in the 1st Schedule of the TPO and their location shown on a map which is also included in, or annexed to, the TPO. The scale of the map (ideally an up to date Ordnance Survey map) must be sufficient to give a clear indication of the position of the trees or woodlands (1:1250 will usually be sufficient for trees or groups of trees; 1:2500 will usually be sufficient for woodlands)
The Model Order provides that trees may be specified:
(1) Individually (each tree T1, T2 etc encircled in black on the map)
(2) By reference to an area (the boundary of each area A1, A2 etc indicated on the map by a dotted black line)
(3) In groups (each group G1, G2 etc shown within a broken black line), or
(4) As woodlands (the boundary of each woodland W1, W2 etc indicated by a continuous black line)
Any combination of these four categories may be used in a single TPO.
What are the 2 main problems with ‘Area’ TPOs?
There is no requirement in the Regulations to describe the trees in the 1st Schedule and plot them on the map with pinpoint accuracy. But if a tree is cut down apparently in contravention of the TPO, the LPA may find it difficult to bring a successful prosecution if they cannot show clearly that the TPO relates to the tree it was intended to protect
Also only protects trees that were there at the time – Area TPO’s may be 50 years old – difficult to prove trees were actually protected, advise is that Area TPO’s should be temporary
What is a Section 201 Direction?
If it appears to the LPA that a TPO should take immediate effect they may include in the TPO a direction applying section 201 of the Act (a 'section 201 direction'). The TPO takes effect on the date specified in the direction (which usually coincides with the date on which the TPO is made). But the TPO takes effect on a provisional basis only. It still needs to be confirmed by the LPA. If the TPO is not confirmed within six months of the date on which it was made, the provisional protection given by the section 201 direction comes to an end, although the LPA are not prevented from confirming the TPO after the six month period
What is a Regulation 3 Notice?
Under regulation 3 of the 1999 Regulations, the LPA must, on making a TPO serve on the owner and occupier of the land affected by the TPO:
(1) A copy of the TPO, and
(2) A notice ('a regulation 3 notice') stating
(i) The LPA's reasons for making the TPO,
(ii) That objections or other representations about any of the trees or woodlands specified in the TPO may be made to the LPA,
(iii) The date, being at least 28 days after the date of the regulation 3 notice, by which any such objections or representations must be received by the LPA, and
(iv) The effect of the section 201 direction if one has been included in the TPO.
Model Regulation 3 Notice
IMPORTANT THIS COMMUNICATION MAY AFFECT YOUR PROPERTY
TOWN AND COUNTRY PLANNING ACT 1999
TOWN AND COUNTRY PLANNING (TREES) REGULATIONS 1999
Tree preservation order: [title]
[name of Council]
THIS IS A FORMAL NOTICE to let you know that on [insert date] we made the above tree preservation order.
A copy of the order is enclosed. In simple terms, no one is allowed to cut down, top or lop without our permission any of the trees described in the 1st Schedule of the order and shown on the map.
Some information about tree preservation orders is in the enclosed leaflet, Protected Trees: A Guide to Tree Preservation Procedures, produced by the Department of the Environment, Transport and the Regions.
We have made the order because [give reasons].
[The order came into force, on a temporary basis, on [insert date], and will remain in force for six months. During this time we will decide whether the order should be given permanent status.]
People affected by the order have a right to object or make comments on any of the trees or woodlands covered before we decide whether the order should be made permanent.
If you would like to make any objections or comments, please make sure we receive them in writing by [insert date give at least 28 days from the date of the notice]. Your comments must meet regulation 4 of the Town and Country Planning (Trees) Regulations 1999 (a copy is attached). Please send your comments to [name and address of LPA officer]. We will carefully consider all objections and comments before deciding whether to make the order permanent.
We will write to you again when we have made our decision. In the meantime, if you would like any more information or have any questions about this letter, please contact [name, address and telephone number of LPA officer].
Dated: [insert date]
Signed: [Council's authorised officer] on behalf of [Council's name and address]
How long do people have to object to a TPO?
‘At least 28 Days’
What are the permissible ways of serving a TPO?
The LPA may confirm the TPO either:
(1) by delivering the documents into the hands of the owner or occupier,
(2) by leaving the documents at the usual or last known place of abode of the owner or occupier,
(3) by pre-paid registered letter or recorded delivery to the usual or last known place of abode of the owner or occupier
Who must it be served to?
As soon as practicable after confirming a TPO the LPA must notify the owners and occupiers of land affected by the TPO. This requirement extends not only to the owner and occupier of the land on which the trees are situated, but also the owner and occupier of any land adjoining the land on which the trees are situated
Name 5 possible reasons for a legitimate objection to a TPO
Objections and representations can be made on any grounds, for example:
1) challenging the LPA's view that it is expedient in the interests of amenity to make a TPO,
2) claiming that a tree included in the TPO is dead, dying or dangerous,
3) claiming that a tree is causing damage to property,
4) pointing out errors in the TPO or uncertainties in respect of the trees which are supposed to be protected by it,
5) claiming that the LPA have not followed the procedural requirements of the Regulations.
What is significant about TPOs issued pre – 12th March 1975?
TPOs made and confirmed before 1975 prohibited the cutting down, topping, lopping or wilful destruction of trees. They did not prohibit the 'uprooting' or 'wilful damage' of trees because these acts were not included in the Model Order until 12 March 1975. If the LPA have not yet varied their TPOs preceding this date to ensure they cover uprooting and wilful damage, they should consider doing so
What is the exact wording of the duty placed on LPAs in terms of trees and development?
‘…to ensure they make adequate provision for the preservation and planting of trees when granting planning permission by imposing conditions and making TPOs.’
When an application for Full Planning Permission is submitted what information should be on the site plan?
The LPA should obtain an accurate site plan showing the proposed siting of structures, the existing contours of the ground and any proposed alterations in ground level. The plan should provide details of all existing trees including their crown spread, indicating those to be retained and those to be felled. Areas to be set aside for new planting should also be shown. In addition, the LPA may require details of trees and other landscape features on land adjacent to the development site which might be affected by the development or might be useful for screening or other purposes. Further detailed guidance is given in British Standard 5837:1991, Guide for Trees in Relation to Construction.
How close to ancient semi-natural woodland can a developer go without needing to consult the Forestry Commission?
> 500 metres
What is the difference between a planning condition and a planning obligation? Give 2 examples of each.
Conditions: Perceived as ‘Imposed’ - The LPA's ability to impose conditions on a planning permission enables many development proposals to proceed which would otherwise be refused. The sensitive use of conditions can improve the quality of development control and enhance public confidence in the planning system. In the Secretary of State's view, planning conditions should only be imposed where they are both necessary and reasonable, as well as enforceable, precise and relevant both to planning and to the development to be permitted.
e.g.1 - When granting full planning permission, conditions may be used, for example, to require the erection of protective fencing around trees during the course of development or restricting works which would adversely affect them
e.g.2 - Planning conditions should be used, where appropriate, to secure the planting and establishment of new trees. A condition may also provide for the protection of the planting area during development operations, maintenance of the trees during the first few years (the number of which should be specified) and the replacement of any trees which are removed or die within that time.
Obligations: Perceived as ‘agreed’
As well as being able to grant planning permission subject to conditions, the LPA may seek to enter into a planning obligation with a developer regarding the use or development of the land concerned.
A planning obligation may:
(1) restrict the development or use of the land,
(2) require specified operations or activities to be carried out on the land,
(3) require the land to be used in a specified way, or
(4) require payments to be paid to the LPA as a single sum or periodically
e.g. - For example, where a site includes woodland or open space which would be lost if a development proposal went ahead, the LPA may wish to seek agreement from the developer to provide some form of replacement facility on the site or on other land over which the developer has control. It may not be essential to provide an exact substitute: a woodland walkway, for example, may in some cases be an acceptable replacement for a green space. But there should be some relationship between what is lost and what is replaced, in scale as well as in kind. DETR welcomes the use of planning obligations by some developers in creating nature reserves, planting trees, establishing wildlife ponds and providing other nature conservation benefits
What does Section 206 of the Act relate to?
Dead, dying or dangerous trees do not require consent to cut down, but section 206 requires a replacement tree to be planted in place of the removed tree when outside a woodland.
What are the 3 main exemptions from the need to submit an application to remove a TPO’d tree?
1/. Where the tree is dead, dying or diseased and therefore dangerous
2/. Tree work that complies with statutory legislation e.g. remove or restrict height of trees in accordance with Civil Aviation Act
3/. Nuisance – in a legal sense, trees that are causing a nuisance to not require permission to be removed – ‘Actionable Nuisance’ – i.e. legal action
List 4 others
1/. The LPA's consent is not required for cutting down or carrying out work on trees if required to implement a full planning permission. For example, the TPO is overridden if a tree has to be removed to make way for a new building for which full planning permission has been granted
2/. If a fruit tree is protected by a TPO and cultivated in the course of a business, the LPA's consent is not required for cutting it down or carrying out work on it, as long as the tree work is in the interests of that business.
3/. The Environment Agency do not need to obtain the LPA's consent before cutting down or carrying out work on trees to enable them to carry out their permitted development rights
4/. Statutory Undertakers do not need permission if safety is a concern or if they need to check their pipes etc… (railway, light railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier and lighthouse undertakers, and undertakings for the supply of hydraulic power; electricity operators, public gas transporters, water and sewerage undertakers, telecommunications operators and the Post Office; the Civil Aviation Authority or any body acting on their behalf)
(In accordance with NJUG Volume 4)
How much timber can be felled without the need for a felling licence?
5 cubic metres per calendar quarter (as long as no more than 2 cubic metres are sold)
How big a diameter of tree can be felled in a thinning operation without the need for a felling licence?
Up to 8cm diameter when Felling
Up to 10cm diameter when Thinning
Up to 15cm diameter when Coppicing (All at 1.3m)
What 4 things must an application to carry out work on a TPO’d tree be?
(1) be made in writing to the LPA,
(2) state the reasons for making the application,
(3) identify the trees to which the application relates, by reference to a plan if necessary, and
(4) specify the operations for which consent is sought.
(5) can also phase operations, i.e. over 5 years
What are the 3 options an LPA has on receipt of an application?
(1) refuse consent,
(2) grant consent unconditionally, or
(3) grant consent subject to such conditions as they think fit
What is an Article 5 Certificate?
In simple terms the effect of an article 5 certificate is to remove the LPA's liability under the TPO to pay compensation for loss or damage caused or incurred as a result of their decision when refusing consent or imposing conditions on an application to work a TPO’d tree. (On TPOs made before 2nd August 1999)
An article 5 certificate may be issued if the LPA are satisfied:
(1) that their decision is in the interests of good forestry, or
(2) that the trees, groups of trees or woodlands to which the certificate relates have an 'outstanding' or 'special' amenity value
Do LPAs have to apply for consent to work on their own trees?
No
What are Conservation Areas, and what is the legislation that covers them?
‘Conservation areas are areas of special architectural or historical interest the character or appearance of which it is desirable to preserve or enhance. They are designated by LPAs and are often, though not always, centred around listed buildings. Other buildings and landscape features, including trees, may also contribute to the special character of a conservation area’ Trees in conservation areas which are already protected by a TPO are subject to the normal TPO controls. But the Town and Country Planning Act 1990 also makes special provision for trees in conservation areas which are not the subject of a TPO (Section 211 Notice)
What is a Section 211 notice?
Under section 211 anyone proposing to cut down or carry out work on a tree in a conservation area is required to give the LPA six weeks' prior notice (a 'section 211 notice'). The purpose of this requirement is to give the LPA an opportunity to consider whether a TPO should be made in respect of the tree
What options are open to an LPA when in receipt of a Section 211 Notice?
(1) make a TPO if justified in the interests of amenity. The proposal would then have to be the subject of a formal application under the TPO, or
(2) decide not to make a TPO and allow the six week period to expire, at which point the proposed work may go ahead as long as it is carried out within two years from the date of the notice, or
(3) decide not to make a TPO and inform the applicant that the work can go ahead.
What does Section 203 refer to?
Compensation in respect of tree preservation orders:
A tree preservation order may make provision for the payment by the local planning authority, subject to such exceptions and conditions as may be specified in the order, of compensation in respect of loss or damage caused or incurred in consequence—
(a) of the refusal of any consent required under the order, or
(b) of the grant of any such consent subject to conditions
What does ‘destroy’ mean?
The Courts have held that you do not have to obliterate a tree in order to 'destroy' it for the purposes of the Act. It is sufficient for the tree to be rendered useless as an amenity or as something worth preserving.
What happens about a TPO’d tree destroyed by strong winds?
The Courts have not resolved whether there is a duty to replace trees uprooted or destroyed in strong winds. The Secretary of State considers that the duty does apply in such cases, although the LPA may decide not to enforce the duty depending on the circumstances of the case
What is a Section 207 Notice?
If it appears to the LPA that a duty to replace trees or woodlands has not been complied with, they can enforce the duty by serving on the landowner a notice under section 207 of the Act (a 'tree replacement notice'). A tree replacement notice has to be served within four years from the date of the alleged failure to comply with the duty (ie four years from the landowner's failure to plant the trees as soon as he or she reasonably could, not four years from the date of the removal of the trees
Is a replacement tree (planted in accordance with a Replacement Notice) automatically covered by the same TPO?
The Act does not provide that trees planted in accordance with a condition are automatically protected by the original TPO. Where the felled trees comprise all or part of a woodland and the replacements are planted within the woodland area described in the TPO, the Secretary of State considers that the replacement trees are protected by the TPO. In other cases, though, a fresh TPO may be required to secure the protection of the replacements.
What are the exceptions to the Right of Compensation after 2nd August 1999?
In deciding an application for consent under a TPO made on or after 2 August 1999 the LPA cannot issue an article 5 certificate. There is a general right to compensation. However, the TPO includes provisions which are intended to limit the LPA's liability to a fair and reasonable extent, and so the general right to compensation is subject to the following exceptions:
(1) no claim for compensation can be made if the loss or damage incurred amounts to less than £500;
(2) no compensation is payable for loss of development value or other diminution in the value of land. 'Development value' means an increase in value attributed to the prospect of developing the land, including clearing it;
(3) no compensation is payable for loss or damage which, bearing in mind the reasons given for the application for consent (and any documents submitted in support of those reasons), was not reasonably foreseeable when the application was decided;
(4) no compensation is payable to a person for loss or damage which was (i) reasonably foreseeable by that person, and (ii) attributable to that person's failure to take reasonable steps to avert the loss or damage or mitigate its extent;
(5) no compensation is payable for the costs incurred in bringing an appeal to the Secretary of State against the LPA's decision to refuse consent or grant it subject to conditions.
Addendum 2008 and 2009
Applications must include a sketch plan
Must include evidence if structural problems alleged
Must have diagnostic evidence of problems if health of tree is sited as a reason
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New Roads and Street Act 1991
The requirements are summarised in a Code of Practice, latest issue May 2002:
“Safety at Street Works and Road Works” – issued by the Secretary of State
The legislation requires an undertaker, and those working on its behalf, to carry out work in a safe manner, with regard to:
signing
lighting
guarding
The code is aimed primarily at operatives, but reminds managers and supervisors they have a responsibility to ensure all works and operatives are safe.
All road users should be informed well in advance of the size and nature of any obstruction.
Special consideration is required for disabled, elderly, children, prams etc.
Failure to comply is a criminal offence
Compliance with the code is taken as compliance with the legislation
The code does not apply to motorways or dual carriageways with hard shoulders – consult Chapter 8 of the Traffic Signs Manual
The Main Points
check (supervisor) for any restrictions – e.g. times of day
site specific risk assessment must be carried out
all personnel must wear hi-viz clothing – includes visitors
secure signs etc. from being blown over – not with kerbs, road pins
signs to be placed in accordance with distance guidelines
if on a footway, should minimise inconvenience to pedestrians – footway should never be restricted to less than 1 metre
check position, condition and cleanliness regularly
if temp. signs negate perm. signs – should be covered and Highway Authority informed
all signs (apart from those specifically for pedestrians) should be reflectorised
signs must accommodate traffic from all possible directions
must incorporate work areas and safety zones, plus any obstructions outside the main area – spoil heaps, parked plant etc.
signs may need duplication – always on dual carriageways
traffic control may be called for – traffic volume, road width
site should be inspected regularly if not in use
if conditions change so should signing
Site Layout
Works area – the actual excavation etc.
Working space – for storage and personal movement around the area
Safety Zone – between you and the traffic – to protect both – consists of
lead-in taper
longways clearance
sideways clearance
exit taper
if pedestrians are diverted into carriageway, there must be a safety zone between outer pedestrian barrier and traffic
dimensions are determined by speed limit – do not simply choose minimum distances - assess each site
where the carriageway width is so restricted as to prevent adequate sideways clearance, speed should be restricted to less than 10mph
Road Danger Lamps must be used at night on roads with a speed limit of 40mph and above – otherwise use discretion
provision of a ‘tapping rail’ must be considered – blind and partially sighted
temporary footways must always have rigid barriers
‘END’ signs must be placed where work area is 50m or more, but not where all the following apply
no temp speed limit or other restrictions
30mph or under
less than 20 vehicles in 3 minutes – both ways (400veh/hr)
less than 20 HGV per hour
when pedestrians are diverted to temporary footways – ramps must be provided for wheelchairs, pushchairs – should have a slip resistant surface and not impede the flow of water along gutters
Other Points
Highway Authority needs consulting where:-
closing the right hand lane of a dual carriageway
taking out of service pedestrian or cycle crossings
if the work site is on the approach to a traffic signalled junction
installing temporary traffic lights
disruption of traffic flow on a roundabout is likely
temporarily closing a cycle lane
if not wide enough for buses, public transport coordinator must be advised (min.6.75m two-way, 3.0m with traffic control)
railway company must be consulted if works are at or close to crossings, or queuing traffic could affect a crossing
you must be in a position to suspend work if necessary (e.g. bad weather) – may need additional signage, lamps etc.
must have a contingency plan in case of mechanical failure e.g. traffic lights not working
should have ‘Stop / Go’ boards as a back up
Plant Health Legislation
The Plant Health Act 1967
The primary piece of legislation covering plant health in Great Britain
Prescribes the Forestry Commissioners as the ‘competent authority’, who can:-
Make orders to prevent the introduction and spread of forestry diseases
Require local authorities to undertake certain works to prevent such a spread
It creates certain offences
And imposes certain fees
The Plant Health (Forestry) (Great Britain) Order 1993
Prohibits the landing of;
specified tree pests
specified trees
‘relevant material’ – wood, bark, soil, growing medium, used forestry machinery
Lays down the conditions under which other relevant material may be permitted entry
Sets out the ‘protected zones’ for various pests, and prescribes conditions for their entry and movement within those zones
Prohibits the keeping, storage, sale or release of tree pests
Sets out conditions for sending relevant material to other Member States
Sets out rules for the registration of importers, forestry traders and producers
Sets out rules for the issue of ‘Plant Passports’
Sets out powers for inspectors to enter property and inspect goods, material
Prescribes offences and penalties for failing to comply with the order
It has been amended by various further orders in 1994, 95, 96, 98, 2001, 02, 04,05, 06, 07, 08, 09
The basic content remains the same – amendments are to accommodate new pests and or diseases as they arise
Other specific Orders and amendments include:-
The Watermark Disease (Local Authorities) Order 1974 (amended in 1992)
Sets out powers of LA’s to prevent spread of the disease
Can only exercise those powers in their own area
Officers may enter land to take samples if they suspect the disease may be present
Officer may take action himself or require the owner / occupier to do so
The Dutch Elm Disease (Local Authorities) Order 1984 (amended in 1988)
As for Watermark
The Treatment of Spruce Bark Order 1993 (amended 1994 and 2002)
Controls movement of spruce bark from areas affected by Dendroctonus micans, unless first treated
Permits movement of untreated bark to places where treatment can be carried out
Prescribes powers for inspectors
Creates offences and penalties
The Plant Health (Forestry) (Phytophthora ramorum) (Great Britain) Order 2002/04
Implements measures to prevent the introduction and spread of the disease
Regulates the import of trees, wood and bark of trees susceptible to the disease originating in those parts of the USA where the disease is known to be present
Provides for licences to import material for research purposes
Provides offences and penalties for failure to comply with the order
The Plant Health (Phytophthora kernovii Management Zone) (England) Order 2004
established a ‘management zone’ near Redruth in Cornwall
no person may move any susceptible material from inside to outside the zone
any beech, oak, rhododendron, tulip tree, Chilean hazel and certain magnolia
gave inspectors the right to close public footpaths
also to enter premises and seize material
offences can lead to a fine up to £5,000
The Plant Health (Forestry) (Amendment) Order 2006
added new requirements to protect against the introduction of the Oriental Chestnut Gall Wasp, Dryocosmus kuriphilus,
had become established in parts of Italy
requires imported plants of Castanea sativa to come from areas where the pest does not occur
it clarifies the definition of Russia
requires anyone notifying the Forestry Commission orally of a new pest to confirm it in writing
makes it clear that registered forestry traders must retain plant passports
The Plant Health (Forestry) (Amendment) Order 2008
added Thaumetopoea processionea - Oak Processionary Moth
and Gibberella circinata – Pitch Pine Canker
Oak Processionary Moth is not known to exist outside the EU, so controls only relate to the importation of susceptible material from other EU member states
all imported Oak trees must “ be accompanied by an official statement that they have been grown in a nursery, and that no symptoms of Thaumetopoea processionea have been observed at the place of production or in its immediate vicinity since the beginning of the last complete cycle of vegetation.”
The Plant Health (Forestry) (Amendment) Order 2009
prohibited the introduction and spread within the EU of Citrus Longhorn Beetle, but no actual measures were specified in respect of susceptible plant material entering the UK
introduced measures to prevent the introduction and spread of two forestry pests - the Emerald Ash Borer and the Siberian Conifer Silk Moth
prescribed landing requirements for host material of the former, principally trees and wood of Ash
amended the measures to permit the entry of oak trees of not more than 2 metres in height which have been grown in nurseries and which have been officially inspected and found free of any symptoms of Oak Processionary Moth
The Plant Health (Forestry) (Amendment) Order 2005 is documentation needed for the movement of certain plants and plant derived material within the European Community
‘a label and, where appropriate an accompanying document, issued in the European Community containing the relevant information, which gives evidence that the provisions of the order relating to plant health standards and special requirements for plants and plant products moving within the EC have been complied with’
Must contain:
Details of plants covered – botanical names
Original supplier – unique letter or number code
Country of origin if originating outside the EC
Phytosanitory Certificate is documentation for plants and plant derived materials being imported from outside the EC. It is a declaration by the exporter that the plants or plant products have been inspected, and are free of any ‘quarantine’ pests, and practically free from other injurious pests, and that they conform to the plant health requirements of the importing country
Guide to Plant Passporting
within the single market plant health checks are focused on the place of production
there are no border checks on plants within EC
spot checks may take place
certain material requires a ‘Plant Passport’
‘Plant Passports’ are required even within the UK
they are intended to ensure that only healthy plants are traded
those needing to be authorised are:
growers of listed plants
importers of plants
traders of plants when consignments are split
importers of certain propagating material (including seeds)
those who do not need to be authorised are:
retailers (providing they are not included above)
landscapers (providing they are not included above)
commercial growers solely of plants not requiring passports
individuals growing for own use
organisers / members of a gardening club
a customs clearance agent
a trader receiving plants passported down to their smallest tradable unit
you market only for amateur use
if you wish to issue Plant Passports your premises have to be inspected
routine repeat visits will be carried out to ensure compliance
there is a charge for the first inspection but not subsequent visits
even if you yourself are not authorised, you must
retain passports received for at least one year
report suspected pests or diseases immediately
issue other relevant supplier documentation
there is no standard plant passport, but it must contain certain information
there are 3 options in terms of format:
on a delivery note or other document travelling with the consignment
on labels attached to the plants and the delivery note
on labels alone
on a mixed consignment those plants requiring a passport must be clearly identified, by for example adding ‘PP’ or ‘P’, irrespective of numbers
designated ‘Protected Zones’ require passports for certain plants moving into and within them
if a trader splits or mixes plants a replacement passport will be required
if the passport itself cannot be retained (e.g. a label stuck to a crate) the information must be recorded manually or onto a computer log, providing it is accessible by an inspector
