December 2011 Newsletter
Major Frustrations for Developers
We are currently involved in a number of developments whereby clients are potentially facing lengthy delays to their projects due to ecology constraints.
The nature of ecology work is such that timing is everything. Unlike comedy though, it’s no joke!
If you miss the survey season for a particular species, it could be in excess of nine months before you can carry out further surveys to feed results in to your planning applications.
One of the main frustrations for developers is the general presumption against allowing surveys and mitigation schemes to be undertaken as a condition of planning consent, prompted by the 2009 decision in Woolley v Cheshire East Borough Council & Millennium Estates Ltd. Natural England, the regulatory body that grants licenses in respect of European Protected Species, welcomed the decision in that case and now encourages Local Authorities to refuse to register applications without detailed, up to date surveys having been carried out.
With the fragility of the development industry and indeed the wider economy at the moment, in some cases rigid application of the ‘rules’ may seem to be having a stifling effect on much needed development.
So...what are the solutions?
The most obvious solution is advance planning to ensure that surveys are programmed at the correct time of year. Many local planning authorities, and indeed many independent ecologists, show little sympathy for developers who ‘miss the boat’ in terms of survey seasons, however if you do happen to miss a particular survey ‘window’ the consequences for the timing of your development could be pretty severe.
We fully understand that for whatever reason, survey windows and opportunities can be missed, therefore its critical that surveys are planned and booked in advance.
Also bear in mind that your ecology service providers are likely to respond favourably (preferential dates & rates!) if they have plenty of advance notice of survey requirements. It also pays to get in early before your competitors book up your suppliers’ time when the survey season does arrive. How often have you been stung by last minute survey requirements and had to waste time scouring the countryside for an ecologist?
Tree Preservation Orders
We continue to receive requests for advice when a Tree Preservation Order (TPO) lands on our clients’ desks and we continue to recommend that clients consider very carefully the impact of a TPO before simply accepting it.
There may be occasions when you are advised by your arboriculturist that there’s ‘nothing you can do’ when faced with a TPO; it’s highly unlikely that we will ever give you that sort of advice.
We always advise our clients to have any TPO that lands on their desk properly checked out as a matter of urgency. There are strict time limits within which you can respond to the making of a TPO and even if you think the protected trees don’t affect your proposals too much, that might not always be the case.
We’ve seen cases where truly awful Orders have been served that seek to protect truly awful trees. We’ve been able to negotiate the removal of some trees from Orders, we’ve been able to demonstrate that some Orders are invalid and in some cases we’ve even been able to negotiate that Orders are not confirmed. It definitely pays to get someone who knows what they’re doing on your side quickly!
Remember as well, just because an existing TPO may have been around for a number of years, still doesn’t necessarily mean its valid!
Technical Due Diligence
Speaking to an engineering associate recently served as a good reminder of a service that we haven’t promoted for a while. One of the first things a developer will do when faced with an opportunity to develop a site is carry out a technical due diligence to establish what risks are associated with a particular site.
Well, we’ve done a similar exercise in respect of trees, landscape and ecology on hundreds of sites over the years and clients generally find the exercise incredible value for money. For example, instead of playing a guessing game or taking a risk with proposed layouts, wouldn’t it be good to know at a glance:
- What trees the local planning authority are likely to want to keep;
- What trees could be reasonably removed to maximise the ‘development window’;
- How close you can build to retained trees;
- If there are likely to be any ecology constraints on site (bats, badgers and newts for example);
- What potential positive aspects you can use to promote the idea of development?
With a simple walkover survey before you invest time and money in the site we can give you some great pointers on all the above and save you time further into the application process. Money well spent?
What’s the difference between a tree survey and a tree survey?
Well, it depends if you want to tick a box or whether you want a planning consent!
We’ve always been proud of our reputation to see solutions to problems where others cannot. There is no greater time when this applies than when we carry out tree surveys for our clients.
We’ve often been known to ask the question ‘What use is a list of trees to you?’ when its obvious that what you need is someone to help you get a planning consent.
While the ubiquitous ‘list of trees’ type of tree survey will enable you to tick a box on a planning application form, will it actually help you achieve your objectives?
What happens if the removal of a couple of low quality trees gets you a bigger development window? Will the list of trees tell you that?
What happens if the Root Protection Area conflicts with your proposed layout? Will the list of trees provide a solution?
What happens if there are potential constraints in terms of shade, landscape impact, invasive species etc? Will the list of trees provide the answers you need?
We’ve been helping clients get planning consent for nearly 20 years now and a very long time ago we realised that the ‘list of trees’ approach, while cheap, doesn’t cut the mustard in planning terms.
By all means, if you have time and patience and are happy to run the risk of a refusal on the grounds of loss of, or impact on trees, we can certainly stick to the basics and produce a list of trees for you. We do however like to support our clients by going a little further than that and advising you up front if there any potential ‘banana skins’ awaiting you. After all, the more things you build, the more work you’ll pass our way!
