Skip to main content

Town And Country Planning Bill

Volume 448: debated on Monday 20 February 1984

The text on this page has been created from Hansard archive content, it may contain typographical errors.

7.4 p.m.

Report received.

moved Amendment No. 1:

After Clause 1, insert the following clause:

( "Tree preservation orders in antiopation of disposal of Crown land.

.—(1) A local planning authority or, in Scotland, a planning authority may make a tree preservation order in respect of Crown land in which no interest is for the time being held otherwise than by or on behalf of the Crown if they consider it expedient to do so for the purpose of preserving trees or woodlands on the land in the event of its ceasing to be Crown land or becoming subject to a private interest.

(2) No tree preservation order shall be made by virtue of this section except with the consent of the appropriate authority.

(3) A tree preservation order made by virtue of this section shall not take effect until the land in question ceases to he Crown land or becomes subject to a private interest, whichever first occurs.

(4) A tree preservation order made by virtue of this section shall not require confirmation under section 60 of the Act of 1971 or section 58 of the Act of 1972 until after the occurrence of the event by virtue of which it takes effect in accordance with subsection (3) above; and any such order shall by virtue of this subsection continue in force until—

  • (a) the expiration of the period of six months beginning with the occurrence of that event; or
  • (b) the date on which the order is confirmed, whichever first Occurs.
  • (5) On the occurrence of any event by virtue of which a tree preservation order takes effect in accordance with subsection (3) above the appropriate authority shall as soon as practicable give to the authority that made the order a notice in writing of the name and address of the person who has become entitled to the land in question or to a private interest in it; and the procedure prescribed under the provisions mentioned in subsection (4) above in connection with the confirmation of the order shall apply as if the order had been made on the date on which that notice is received by the authority.

    (6) In section 58(4) of the Act of 1972 after the words "section 59 of this Act" there shall he inserted the words "and section ( Tree preservation orders in anticipation of disposal of Crown land) of the Town and Country Planning Act 1984".

    (7) Any order made before the date on which this section comes into force which would have been a valid tree preservation order but for the fact that—

  • (a) the land in respect of which it was made was Crown land; and
  • (b) no interest in the land was for the time being held otherwise than by or on behalf of the Crown,
  • shall be deemed to have been a valid tree preservation order: but any order validated by this subsection shall have effect (and be deemed always to have had effect) as provided in subsection (3) above.").

    The noble Lord said: My Lords, this new clause arises from a suggestion made in another place that the provisions of the Bill should be extended to tree preservation orders. It was recognised from the outset that this was a valuable and sensible suggestion for improving the Bill. However, its implementation has not been easy and that is why I must apologise for bringing this new clause before your Lordships at such short notice.

    At present, tree preservation orders cannot be made in respect of Crown land in which there is no subsisting private interest. We have heard quite a lot about "subsisting private interest" during the course of our discussions on the Bill. However, the need for the clause arises from what happens when Crown land upon which trees are growing is sold or let. If the local planning authority concerned considers that the trees ought to be preserved, it can make a tree preservation order as soon as the land ceases to be Crown land or a private interest in it is created. But even the speedy procedure for making a provisional tree preservation order which the 1971 Act contains takes a few days. A tree, though, can be cut down in a few minutes, so there is inevitably a period when the trees are at risk.

    The new clause would enable a planning authority to make a tree preservation order in respect of Crown land in which there is no subsisting private interest. However, the order will not take effect until the land has been sold or a private interest in it, such as a lease, has been created. Even then, it will take effect only provisionally and it will require to he confirmed within six months of the sale or creation of the private interest that brings it into effect. In this way, the short-term protection of the trees is ensured, but the new owner of the land will have the normal opportunity to have his views properly considered before the order takes permanent effect.

    The clause covers two other points. First, we recognise that the provisions of Section 266 of the 1971 Act may sometimes have been misunderstood. We believe that some tree preservation orders may erroneously have been made in respect of Crown land in which there is no subsisting private interest, just as we know that planning permissions have erroneously been granted in these circumstances. Subsection (7) would therefore validate such orders so that they take effect as if they were orders made under this new clause. Secondly, it should be noted that subsection (6) of the clause applies only to Scotland, where the statutory powers relating to tree preservation orders differ from those in England and Wales. The purpose of subsection (6) is to ensure that a tree preservation order made under the clause is recorded in the Register of Sasines after it is confirmed. I hope that your Lordships will share my view that these are useful new powers. I beg to move.

    My Lords, on behalf of the Opposition I arise with alacrity to express our appreciation of the terms of the new clause and of the spirit in which the Minister in another place. Mr. Neil Macfarlane, was quick to recognise the point that was made to him by the Member for Chipping Barnet, Mr. Sydney Chapman. Mr. Sydney Chapman, to my knowledge, has always been very diligent, fair, robust and independent in his point of view. He is certainly a very knowledgeable Member of another place on these matters. He made his point not merely because he is knowledgeable about town and country planning matters but because he has assumed the responsibility of president of a certain body. However, it surprises me that it was left to a Back-Bencher to point out this deficiency in the Bill.

    The history of this matter is not a happy one. Indeed, it is somewhat sad. We on this side of the House acknowledge the Government's immediate recognition of the deficiency and the way in which they have put it right by means of this new clause. There can be few matters in planning legislation which arouse more anger and apprehension in the country generally than the protection of trees. As was pointed out in another place, we are talking in terms of 50,000 acres of land owned by these bodies. The Member for Chipping Barnet may well have had in mind interests which both he and I share. As his constituency includes the Friern Barnet mental hospital, he must know, as I do, that it is intended that by 1993 this very large area of land, upon which there are many hundreds of trees, should pass from Crown to private ownership. Therefore, he has every right to be concerned.

    The Government must recognise that the protection and preservation of trees can have enormous financial consequences if there is any possibility of land passing into private ownership without the tree preservation order being watertight. I was interested to hear the Minister point out that even under the emergency powers which are contained in the 1971 Act it is possible for these matters to take a few days. We are well aware of the situation where a tree which is crucial to the amenity of an area and which has a preservation order attached to it is suddenly lopped or cut down. People are very good at saying that they are sorry—that the notice had not arrived. I want the Minister—and it is purely a point across the Table—to take fully on board that it would be an absolute travesty if, when land was passing from Crown ownership to private ownership, there was a timescale which allowed the protection and conservation of the amenity to be put at risk.

    I recognise of course that the best people to understand the need for protection are the local authority. If the local authority cannot act until the ownership has changed—and I note the words "until the land in question ceases to be Crown land or becomes subject to a private interest, whichever first occurs" (I may be wrong, and I can certainly take advice, but surely they happen simultaneously)—well, therefore there is an interregnum, there is a no man's land. There is a time in which mischief can be done.

    If there is a time when it is neither one nor the other, and that is, by virtue of bureaucracy or administration, a period in which some damage can be done, then the House ought to ask the Government to look very closely at the situation. If it means that a local planning authority, the council, cannot act—and I appreciate they can only make the order with the agreement of the regional health authority, or the Post Office or whatever it is—I would have thought that one ought to look very closely at what might be called an overlap period. If there is a desire on the part of the Crown landowner to protect the trees, if the local authority, on behalf of the community, is expressing a desire that the trees be protected, and there is a period in which some damage can be done, can the Minister and his advisers look at the possibility of the tree preservation order either being made in advance or with a date of operation which applies immediately the ownership changes from one to the other? I certainly am very concerned about that point.

    Then we come to subsection (4). That is, "(a) the expiration of the period of six months beginning with the occurrence of that event"; or "(b) the date on which the order is confirmed". Can we take it that this in effect is the stopgap period while the ownership is changing? If the order is capable of becoming permanent—in other words, the order once made and subsequently confirmed is as permanent as one can have in planning legislation—then I am satisfied. But if it means that the local authority is simply going to ask for the holding period of six months and then has to go through the process again, then I fear for the possibilities. The Minister is well aware of some unhappy experiences that he and I know where Crown land changes into private ownership. We are talking about considerable sums of money that can be made; we are talking about land which is worth a lot more money with no trees on it than land upon which there are trees which are preserved.

    So with those few words of welcome—and I ask the Minister to understand them as words of welcome, and of appreciation to him—we on this side of the House feel that the Government have been wise in recognising the anxieties expressed in another place and fully shared in this place too.

    My Lords, it is obviously not my night; I have obviously made such a hash of explaining this amendment that the noble Lord, Lord Graham, did not really get the drift of what I was trying to say. The purpose of the clause is that it enables a tree preservation order to be made when the land is still Crown land. It is a sort of subliminal interest, if you like. It only takes effect as soon as the land is sold or the private interest is created. The new owner or lessor may, very naturally, want to object, and he has this six months which the noble Lord asked about in which to do that. After that time the order would be confirmed or not, depending upon whether his objection is upheld. I hope that now explains the position to the noble Lord.

    My Lords, I am grateful to the noble Lord. In order that I may be quite clear as to the timescale, suppose a Crown owning authority decides to dispose of land in a way which enables it to seek from the local planning authority the kind of planning permission that that local authority would give, on the basis that at the present time the land is hospital land and the intention is to maximise the value of the land to the public—as opposed to the private developer, speculator, owner; nothing derogatory is intended—and in order to make sure that the land changes hands not at £2,000 or £3,000 pounds an acre but at £70,000 or £80,000 an acre, if it is for housing in order to protect some of the trees one needs to give to the local authority the discretion not to make a blanket order. If we are talking in terms of the land changing ownership—shall we say?—on 1st July, am I right in thinking that the Minister is saying that the tree preservation order shall be applied for and shall come into effect on 1st July but shall be in existence before 1st July, so that it is as watertight as possible, and so that when the ownership changes the chopper comes down and the order shall be in existence?

    Yes, my Lords. In fact the chopper comes down even more quickly than that. The moment the transfer is signed between the Crown and the purchaser, at that very moment, the tree preservation order comes into effect. So there is absolutely no gap at all.

    On Question, amendment agreed to.

    Clause 3 [ Persons in occupation of land by virtue of a licence or contract]:

    moved Amendments Nos. 2 and 3:

    Page 5, line 3, leave out ("and 2") and insert (", (Tree preservation orders in anticipation of disposal of Crown land) and 2").
    Page 5, line 6, leave out ("section 2") and insert ("sections (Tree preservation orders in anticipation of disposal of Crown land) and 2").

    The noble Lord said: My Lords, Amendments Nos. 2 and 3 are consequential upon the amendment which your Lordships have just agreed. I beg to move the two amendments en bloc.

    On Question, amendments agreed to.

    moved Amendment No. 4:

    Page 5, line 14, leave out ("granted by an instrument").

    The noble Lord said: My Lords, this is a drafting amendment to secure consistency with subsection (1) of Clause 3. I beg to move.

    On Question, amendment agreed to.