S17.13 Tree Preservation Order (TPO)

T.P.O. Procedure

What is a Tree Preservation Order

A Tree Preservation Order is an Order made by Local Authorities that imposes conditions for the preservation of trees, groups of trees or woodlands in the Authorities' district, by prohibiting the cutting down, topping, lopping or the wilful destruction of trees, etc. except with the Authorities' consent.

A T.P.O. can additionally impose conditions regulating the requirements for the planting of trees or securing the replanting of trees within any part(s) of a woodland area which may be undergoing development under forestry operations that have been permitted under the order.

Why Are Tree Preservation Orders Made

Legislation under various Town and Country Planning Acts and Regulations makes it the responsibility of the Local Authority to protect the natural environment. To enable the Local Authorities to achieve this end these Acts and Regulations empower the Authorities to impose conditions for the preservation and planting of trees under Tree Preservation Orders as appears to the Authority to be necessary.

Local Authorities are responsible for granting planning permission for building developments within their areas of responsibility. In granting such permissions it is their duty to create Tree Preservation Orders as they think necessary, prior to development, to preserve trees, woods, hedges etc. and save areas from unnecessary destruction while at the same time possibly enhancing the environment of the community that will eventually live there.

Who Can Make a Tree Preservation Order

The Council send in a draft of the T.P.O. The T.P.O. should be allocated the appropriate running number.

When the draft T.P.O. is received, if it is not stated in a letter, check with the agent what it is they would like you to confirm. They may just wish to know that the subjects can be identified and that there are no discrepancies in the deed or they may want to know who the current owners are.

The draft T.P.O. is examined by the Sasines T.P.O. referral officer who checks for any discrepancies and for the search sheets affected. They then refer the Draft T.P.O. to a Land Register Plans officer if appropriate, to check whether there are any further discrepancies along with any Land Register Title Numbers that may possibly be affected. The council is notified by way of an email which will state any discrepancies and advise whether the T.P.O. is acceptable for recording after it has been confirmed. The draft T.P.O. is then logged via the O drive, with a paper copy of the email being filed.

When the actual T.P.O. is presented for recording only a comparison with the draft T.P.O. is required (ensuring that all discrepancies have been rectified and that the T.P.O. has been confirmed).

Recording/Registration of a T.P.O.

A planning authority can grant a T.P.O. under section 160 of the 1997 Act. The T.P.O. is then confirmed at a later date by the planning authority, with or without modification, after the authority has considered any objections. Section 161(2) provides that, as soon as may be, after a T.P.O. has been confirmed, it shall be recorded or registered by the planning authority.

It is not competent to record or register a T.P.O. before it has been confirmed. Any T.P.O. presented for recording before it bears to have been confirmed should be rejected.

Requirement for Confirmation

While it is not competent to record or register a T.P.O. before it has been confirmed there is a requirement, in terms of current legislation, for the local planning authority to send a copy of the order to the Keeper; however the Keeper is under no statutory duty to take action on the unconfirmed order. This is separate from any request by the local authority to vet a draft order to confirm that all proprietors of the affected area have been identified.

Accordingly, any T.P.O. presented for recording or registration before it bears to have been confirmed should be rejected. However it should be borne in mind that, in the absence of an application form, the deed may have been submitted purely because the Council had a statutory requirement to do this and it is for the business unit to file such documents in an appropriate manner.

Section 160 T.P.O.

A planning authority can grant a Tree Preservation Order under section 160 of the 1997 Act. The T.P.O. is then confirmed at a later date by the planning authority itself, with or without modification, after the authority has considered any objections. Section 161(2) provides that, as soon as may be, after a T.P.O. has been confirmed, it shall be recorded or registered by the planning authority.

Evidence of Confirmation

Evidence that the T.P.O. has been confirmed should be in the form of a docquet in suitable terms endorsed or annexed to the T.P.O. It may be authenticated by a 'proper officer' in terms of section 193 of the Local Government (Scotland) Act 1973 as an alternative to the normal method of execution of deeds by the planning authority. The docquet is recorded or registered as part of the Order.

Evidence in another form (e.g. a letter from the chief executive of the planning authority), whilst not sufficient to permit recording in the Sasine Register, is sufficient to permit registration in the Land Register of a T.P.O. exclusively affecting registered land.

It has come to light that some T.P.O.s may have been recorded or registered before confirmation. The standing of such recordings or registrations must be in serious doubt. The remedy, if a remedy is sought, is, as regards Sasine Recordings, to re-record the T.P.O. with a confirmation and docquet under section 143 of the Titles to Land Consolidation (Scotland) Act 1868. When a title sheet reflects an unconfirmed T.P.O., the position can be regularised by adding a note that the T.P.O. was confirmed on whichever date, upon application being made on Form 2 with appropriate evidence.

Section 163 T.P.O.

As an alternative to a section 160 T.P.O., a planning authority can make use of an emergency procedure under section 163 of the 1997 Act. Section 163 allows a T.P.O. to take provisional effect at once; the T.P.O. then has effect for six months or until it is confirmed, whichever happens first. Once again, the T.P.O. cannot competently be recorded or registered until after it has been confirmed.

If a section 163 T.P.O. is not confirmed within six months from the date on which it was made, it falls. The question then arises whether a planning authority can competently confirm the T.P.O. on a later date, so that it revives. The Keeper has been advised that a lapsed T.P.O. is able to be confirmed at a later date and so be renewed. Accordingly, any section 163 T.P.O. confirmed outwith the six month period should be accepted for recording in the Sasine Register or registration in the Land Register.

Example Minutes:

MID 04677 (No.101) 24 Feb. 2004
TREE PRESERVATION ORDER cited as CITY OF EDINBURGH TREE PRESERVATION ORDER NO.3 2003 (MIDMAR DRIVE) (under S.160 & 163 of Town and Country Planning (Scotland) Act 1997) by CITY OF EDINBURGH COUNCIL affecting trees within field to east of MIDMAR DRIVE, EDINBURGH, part of 18.625 acres, referred to in Feu Con. to which Alexander Grant was a party, recorded 7 Sep. 1923. Effective on 25 Jul. 2003 and confirmed 16 Feb. 2004 (S.160 & 161).
- owners wherof being (1.) Trustees under Deed of Trust by ALEXANDER GRANT LAING, (2.) ANTHONY RUPERT LAING and (3.) FLAGSTAFF PROPERTIES LIMITED.
- PLAN.

PTH 00848 (No.12) 27 May. 2010
TREE PRESERVATION ORDER citied as SOUTHFIELD, DRUIDS PARK, MURTHLY TREE PRESERVATION ORDER NO. 1 2009 (under Sections 160 and 163 of Town and Country Planning (Scotland) Act 1997), by PERTH AND KINROSS COUNCIL affecting trees within area A1 and A2 on plan, standing within inter alia (1) subjects [part of former MURTHLY HOSPITAL], referred to in Disp. to Cullochgold Services Limited, recorded 20 Aug. 1997 and (2) 0.645 acre, forming KINCLAVEN LODGE, DRUIDS PARK, MURTHLY, referred to in Feu Disp. to William Henry Armstrong and another, recorded 30 Nov. 1988. Dated 20 Oct. 2009 and confirmed 24 Mar. 2010.
- the present owners thereof being CULLOCHGOLD SERVICES LIMITED and JOHN THOMAS HALLEY MCPHERSON and SHEENA JOAN MCPHERSON, spouses, 3 Abbots Road, Grangemouth.
- PLAN.
- see PTH31468, PTH1384, PTH23087 and PTH22931.