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Advice to Angus Walker

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Enquiry

From
Angus Walker
Date advice given
8 August 2011
Enquiry type
Email

Mr Walker raised queries about plans in relation to Tree Preservation Orders and amendments to the DCO.

Advice given

Trees subject to Tree Preservation Order (TPO)

It is arguable that power to fell/lop trees protected by TPOs has the effect of compulsory acquisition because the power allows the undertaker to interfere with third party private rights - note that model provision 47 (4) provides that compensation shall be payable for damage to any tree and that any dispute shall be determined under Part 1 of the Land Compensation Act 1961 and Schedule J of the model provisions for harbours requires trees subject to TPOs to be shown on the land plan which, in accordance with Regulation 5 (2) (i), is a plan identifying amongst other things land which it is proposed shall be subject to powers of compulsory acquisition and over which it is proposed to exercise any right to use land. Although there is logic in showing trees protected by TPOs on an ecology plan, it is arguable that the land interests affected should also be identified on the land plan and in the book of reference.

Amendments to approved details

Model requirement 37 clarifies that for the purposes of ensuring that development is carried out in accordance with details approved by the Commission such details include any amendments subsequently approved by the Commission. The point made in relation to proposed requirement 24 is that LPAs do not have power to change/amend a DCO including removing or altering existing requirements, contrast the Commission's powers under s153 and Schedule 6. You may consider that this does not necessarily need to be reflected in the wording of the requirement.

Footpath diversions

The proposed reorganisation of the public rights of way may result in the diversion of a footpath (ie which rejoins the right of way and does not alter the point of termination). However, irrespective of the heading to Schedule 3 the effect of article 17 is clearly to extinguish and simultanously create an alternative footpath (and the test in s136 is framed in relation to extinguishment) so it may be clearer to use this terminology.