Back in 2019, which seems a long time ago now, we wrote an article entitled “Protected Trees on your Guernsey Property”, which looked at the Tree Protection Order (TPO) mechanism in Guernsey planning law.

That position is now set to change.

The Development and Planning Authority has launched a 6-week public consultation period (commencing on 5 February 2021) for public views to be provided upon a revised protection process and which is set out in a twelve page consultation document.  For those readers interested, that document can be accessed here:  https://www.gov.gg/CHttpHandler.ashx?id=136119&p=0

The consultation document reminds us that a significant number of the island’s mature trees were lost to Dutch Elm disease in the 1990s and that woodland cover in the island is only 3.4% compared to a European average of 46%.  Admittedly there are many significant differences between a Guernsey and European woodland comparison, but the point is that the little woodland subsisting here is often worthy of legal protection.

The consultation document recognises that there is no definition of ‘amenity’ in the principal piece of Guernsey planning legislation, and in consequence, it is difficult to achieve consistency in determining what ‘amenity’ means in the realm of tree preservation.  Often, the protection of trees is time critical, and frequent mention is made of ‘expediency’ and contact with the Development and Planning Authority occurring at the earliest possible stage.

As one would expect, an action taken by a public body will need to be transparent, reasoned and defendable. The consultation details at some length an ‘Amenity Value Assessment’ taking into account criteria such as visibility of the tree(s); the trees’ individual impact (such as size/form/rarity/character and appearance); the wider impact the tree(s) may have in the local surroundings; how the tree(s) support biodiversity and ecology; and several other more technical factors.

Given the sheer variety of circumstances that will surround a decision to formally protect a tree, a group of trees or even an area, it is important that the TPO toolkit is flexible and reliant upon expert professional opinion.  That said, it must maintain a fair balance. The grant of a TPO will have an immediate impact upon a landowner’s ability to develop property, and may even in some cases preclude certain development entirely.

It is right and proper that those persons likely to be adversely affected by a proposed TPO should have the opportunity to make formal representations. The consultation document sets out arguments that the Development and Planning Authority can take into account, and conversely, those which it cannot.  It is expected that those submitting views on the consultation document might consider these proposals quite closely.

It will be interesting to follow this process in the course of the next weeks and months, and particularly given the now incontrovertible evidence of the importance of trees in the mitigation of climate change.  We will be pleased to provide further commentary as matters unfold.

 

Author Alastair Hargreaves Advocate & Managing Partner