3A: Environmental Legislation and Designations

Question 1

What would you do if you suspected there was Japanese knotweed on site?

Answer 1

Although it is not illegal to have Japanese knotweed in your site, it is illegal to let it spread and it can cause damage to hard landscaping and buildings, therefore it is good practice to eradicate it. It should be reported to the LPA, or in the case of flytipping, the EA. It is best to appoint specialists; I don’t have any experience with Japanese knotweed myself so I would make sure I asked colleagues who do, or ensure there was someone on the project team who knew what they were doing.

Question 2

What would you advise your client if you were instructed to work on a site that included 10-15 trees of poor quality?

Answer 2

firstly I would advise that an arboriculturist was involved as this is outside of my personal professional competence. I would also check if they were subject to any protective designations, such as TPOs, conservation areas, or ecological designations. Ecologists / heritage consultants may need to be involved if this is the case. This would ensure the best outcome for the trees, and also ensure that the project went forward in accordance with all necessary procedures in relation to the trees, therefore protecting myself and the client. It is also likely that a felling license would be necessary (for more than 5m2 per calendar quarter).

Question 3

What would you advise your client if you were instructed to work on a site that included trees within a conservation area?

Answer 3

I would advise the client of the tree’s protection and the process they would have to go through with the LPA to remove the trees. Depending on the site, it may also be appropriate to appoint a heritage consultant. I would also advise the appointment of an arboriculturalist to ensure that all of the trees were healthy and not a risk to the public or contractors.

Question 4

When would it be legally permissive to fell a tree protected by a TPO?

Answer 4

Either if it poses immediate risk to people or property, or if permission to fell it has been obtained from the LPA or forestry commission.

Question 5

What are the implications of programming tree felling in May?

Answer 5

This would fall within bird nesting season: for any works to be carried out an ecologist would have to be involved to ensure no harm to birds.

Question 6

What grants are available for tree planting on private lands?

Answer 6

There are a number of grants available from sources such as the Woodland trust, forestry commission, lottery funding. Countryside stewardship, habitats directive from the EU - post-brexit this may have changed.

Question 7

How long does consent for works on TPO trees lasts for?

Answer 7

Consent for works on trees under a Tree Preservation Order is generally valid for two years. However, the LPA can decide to set a different time limit with a condition in the consent.

Question 8

Are there any exemptions to carrying out works to a tree protected by a TPO?

Answer 8

There are a number of exemptions, such as…

• cutting down a tree when the whole tree presents an urgent and serious safety risk
• in a commercial orchard, or pruning fruit trees in accordance with good horticultural practice
• work which is directly in the way of development that is about to start for which detailed planning permission has been granted (not permitted development)
• cutting down a dead tree
• removing dead branches from a living tree

Question 9

What are the implications of trees in conservation areas?

Answer 9

Trees in a conservation area that are not protected by a TPO are protected by section 211 of the Town and Country Planning Act. This protects them in a similar way to TPOs.
These provisions require people to notify the local planning authority, using a ‘section 211 notice’, 6 weeks before carrying out certain work on such trees, unless an exception applies. The LPA may then designate it with a TPO within the six weeks.

Question 10

What is a Tree Preservation Order (TPO)?

Answer 10

A Tree Preservation Order is an order made by a LPA in order to protect specific trees, groups of trees or woodlands in the interests of amenity, as outlined in the Town and Country Planning Act.
TPOs prohibit:
•	cutting down
•	topping
•	lopping
•	uprooting
•	wilful damage
•	wilful destruction

Question 11

What are some common designations that may affect work / design within your site?

Answer 11

TPOs, Conservation Areas, SSSI, Listed Buildings, protected species, AONBs.

Question 12

What British Standard exists in relation to trees?

Answer 12

BS-5837 is the British Standard for Trees in relation to design, demolition and construction.

Question 13

What is a felling license and when does it apply?

Answer 13

A felling license is required to fell trees commercially and is administered by the Forestry Commission. If on private land, it is only required for over 5 cubic metres per calendar quarter.

Question 14

What is ISO14001?

Answer 14

An international standard that relates to environmental impact and sustainability

Question 15

What legislation exists to protect the countryside?

Answer 15

Main acts are CROW Act and the Wildlife and Countryside Act
Also the Countryside Act, Natural Environment Act, hedgerow regs, National Parks and Access to the Countryside, Town and Country Planning Act… also NPPF (e.g. Green Belt)
International policy/legislation: Bern and Bonn Conventions protect habitats and wildlife, and EU birds and habitats directives (which I believe have been adopted by the UK since Brexit)

Question 16

How might being in an AONB affect your work on a site?

Answer 16

Being in an AONB generally means there are more constraints on development from a visual perspective. The first thing I would do is check what guidance and policy there is regarding the AONB - development plans and SPDs from the AONB and / or the LPA, and also whether there are design guides. It will be important to consult with the AONB at all stages of the project.

Question 17

What would happen if a contractor hit a TPO tree?

Answer 17

Ensure it was not a danger to people on site / the public
Report to local tree officer; they might claim against contractor.
Question why it happened and why they weren’t protected - are you liable for negligence in not making them on a plan or ensuring the contractor knew about them? Or is the contractor liable? If any chance of you being liable, contact your insurer immediately.

Question 18

What is the role of Natural England?

Answer 18

Statutory consultee, designate and manage national parks and AONBs, National Character Areas, duties to DEFRA and government policy.

Question 19

How are ancient and veteran trees protected in law?

Answer 19

They are not automatically protected - but can be protected by a TPO or by being in ancient woodland.

Question 20

What are the CHIP regs?

Answer 20

Chemical Hazard Information and Packaging.

Question 21

What is a SSSI and what implications does it have on a site?

Answer 21

Sites of Specific Scientific Interest are a conservation designation protecting areas extremely valuable for flora, fauna, physiological and geological features.
The intentional or reckless damage of a SSSIs features or disturbance of its wildlife, is an offence.
Natural England has responsibility for identifying and protecting SSSIs in England under the provisions of the Wildlife and Countryside Act.

Question 22

What legislation covers public right of way across land?

Answer 22

The Countryside and Rights of Way Act. expand on this

Question 23

What legislation exists to protect badgers?

Answer 23

The Protection of Badgers Act, and also Wildlife and Countryside Act.

Question 24

Apart from TPOs, how else may trees be protected?

Answer 24

• Conservation Areas
• There may be ecological, arboricultural and heritage designations such as SSSIs, registered parks and gardens and trees within the curtilage of listed buildings (less weight on the specific trees themselves than TPOs)

Question 25

What is the process of making a TPO?

Answer 25

Application to the relevant LPA, with a clear defined location of the tree along with the reasons for protection. The tree (or woodland/group) must be healthy and stable, be visible from a public place (as TPOs relate to the amenity) and cause harm to the amenity of its surroundings if removed.
Objections must be made within 28 days of this being submitted.

Question 26

Is a felling license required from the Forestry Commission for TPO trees?

Answer 26

Not necessarily - for TPO trees, felling licenses are still only required if felling more than 5 cubic metres on private land per calendar quarter.

Question 27

What is a provisional TPO?

Answer 27

An order made to protect a tree before a full order can come into effect. They last for six months. For example, if a LPA thinks the tree should have a TPO and it is under pressure from a planning application.

Question 28

What is a Conservation Area?

Answer 28

A conservation area is an area of special architectural or historic interest, with a character or appearance that is desirable to be preserved or enhanced. They also automatically protect any trees within them over 75mm diameter. They are usually historic cores of villages, towns and cities. Defined in the listed buildings and Conservation Areas Act, and designated by the LPA.

Question 29

What are registered parks and gardens?

Answer 29

Designated landscapes which have special historic interest, designated by Historic England. There is a presumption against any development which has an adverse impact on the character of these protected landscapes, although they do not have the same protection as things like listed buildings and scheduled monuments.

Question 30

Tell me about protected species and how they may affect our work as landscape architects?

Answer 30

Protected species in the UK are species considered to be most threatened. There is a statutory list of priority species and habitats in the UK biodiversity action plan and in legislation such as the natural environment and rural communities act. Species and habitats are protected through designations in the planning system.
If a protected species (or habitat) is found on our site, there is likely to be implications on the design and construction of a scheme: protection, mitigation and conservation will be factored into any design, and the process and phasing of construction may be affected.
Designations should be recognised and considered at the earliest stage in a project.
If protected species or habitats are present, it would be crucial to make sure an ecologist was involved in the project, as although we have experience in creating habitats within our landscape designs, detailed ecological advice, technical input and design is beyond our professional capabilities as landscape architects.

Question 31

Examples of protected species?

Answer 31

Badgers, otters, bats, great crested newts, certain bird species

Question 32

Examples of protected habitats?

Answer 32

Hedgerows, wood pasture, orchards, arable field margins, various grassland types.

Question 33

What is biodiversity net gain?

Answer 33

Biodiversity Net Gain (BNG) is an approach to development that leaves biodiversity
in a better state than before.
In England, there is no standard approach yet but there is a DEFRA calculator which is most commonly used… new environment bill proposes a mandatory 10% BNG.

Question 34

What funding is available to help protect and enhance the environment?

Answer 34

Agri-environmental schemes, countryside stewardship schemes (which I believe has post-brexit equivalents but would need to double check before advising a client), woodland and forestry grant schemes, grants for planting trees.

Question 35

What is JNCC?

Answer 35

The Joint Nature Conservation Committee: a coordinating body between UK environmental agencies, and also coordinates with global nature conservation.

Question 36

What is Natural England?

Answer 36

Natural England is an independent agency and non-departmental public body. It was established as a result of the Natural Environment and Rural Communities Act. NE works to improve landscapes, biodiversity and resources.
They designate AONBs and National Parks, promote conservation and access to the countryside, contribute to social and economic wellbeing through management of the natural environment, and designate and manage SSSIs, heritage coasts, national trails, and more.

Question 37

What is an Area of Landscape Value?

Answer 37

ALVs are designated by LPAs and are an additional way of limiting or controlling development in certain regional or local areas of landscape importance.

Question 38

What are national parks?

Answer 38

They are large areas of countryside designated for both their natural beauty and for providing access to the countryside. There are 14 national parks in the UK, plus the broads which has equal status. They are managed by National Park Authorities, which are LPAs for the parks.
They are a statutory designation, and are covered in the CRoW act and national parks and access to the countryside act.

Question 39

Which legislation covers AONBs, SSSIs and Ramsar sites?

Answer 39

Countryside and Rights of Way Act.

Question 40

What are AONBs?

Answer 40

AONBs are valuable and distinctive landscapes that are not as large or accessible as national parks - they are designated based on their aesthetic beauty and not recreation or leisure opportunities (although many do still have lots of open access land / trails / outdoor leisure opps).
They do not have separate LPAs like National Park Authorities - but are run by an AONB partnerships, which include members from relevant parish, local and county councils, conservation groups/charities, local social/educational groups, national trust, natural England, forestry commission, Historic England and utilities companies.
They are a statutory designation, and are covered in the CRoW act and national parks and access to the countryside act.

Question 41

What are country parks?

Answer 41

Created and managed by LPAs as open space primarily for recreation in a countryside environment, but often also conservation.

Question 42

What is a SSSI?

Answer 42

SSSI based on its important or unique flora and fauna, or geological or physiological characteristics. It is a statutory designation, as set out in the CROW act, and they are designated and managed by natural England.

Question 43

What are Ramsar sites?

Answer 43

International designation protecting wetlands around the world. They are inshrined in UK law through legislation such as the Wildlife and Countryside Act and CROW act.

Question 44

How are ancient woodlands protected by law?

Answer 44

Ancient woodland is not actually under any automatic statutory legal protection. If they also lie within a SSSI or have a TPO, they are protected by law. The NPPF recommends their preservation, and a felling license is required to fell more than two trees.

Question 45

What is ancient woodland?

Answer 45

Ancient woodland is a non-statutory designation managed by Natural England - woodland that has been in continuous existence since 1600.

Question 46

What is the British standard relating to trees?

Answer 46

B5837 - Trees in Relation to Design, Demolition and Construction.

Question 47

What is B5837?

Answer 47

It is the British standard relating to trees - Trees in Relation to Design, Demolition and Construction.

Question 48

What additional protection may a nature reserve have in addition to protection offered from a SSSI?

Answer 48

It may also be protected as a Ramsar site (if wetland), or as a national nature reserve (managed by Natural England) or local nature reserve (managed by local authority). It may also be subject to local by-laws.

Question 49

In addition to the CROW act, what other legislation covers protected species?

Answer 49

• Wildlife and Countryside Act,
• Protection of Badgers Act
• Natural Environment and Rural Communities Act