Council no longer manages trees on educational sites – Part II

This blog follows on from our recent article on this subject – Council no longer manages trees on educational sites.

We have now had a response to a recent Freedom of Information request.

Trying to avoid the Council’s earlier refusals to answer our earlier FoIs about this, we asked for the same information as before, but just about one school which we selected randomly.

The school’s identity has no particular significance. We believe that these responses reflect the same situation across many other schools in Bristol (and the rest of the country?) – the lease disclosed is a ‘Department for Education (DfE) standard Academy Lease’.

We asked…

[We] have been advised that Bristol City Council no longer maintains or manages trees growing on some sites owned by it.

In respect of Henleaze Junior School, is it a site where the responsibility for the care of the trees growing on its site has been passed to the school?

If so, please provide the following information:

1. Does the Council retain the ownership of the trees on the site?
2. If it no longer retains ownership, who does?
3. Does the Council still retain liability for any damage caused by trees on this site?
4. If it no longer retains liability, who does?
5. is this site available for tree planting by the public through sponsorship schemes such as TreeBristol or through tree-planting initiatives such as One Tree Per Child or the Urban Tree Challenge Fund?
8. Who makes decisions about the planting, maintenance or felling of trees on this site?
9. If it is not the Council, is the decision maker obliged to consult the Council before proceeding to maintain or fell a tree, whether or not the tree is growing in a Conservation area, or is protected by a Tree Preservation Order or is the subject of a planning application?

Please provide a copy of any lease entered into between to Council and Henleaze Junior School for the lease of its site.

The Council has responded to say…

The site is let to the Academy on a 125 year Department for Education standard Academy Lease.  The Council holds the Freehold of the site, but the responsibility for the management of the trees has passed to the Academy and the Council no longer retains liability for any damage caused by trees on this site?  The Academy does.

While the the site is available for tree planting by the public through sponsorship schemes such as TreeBristol or through tree-planting initiatives such as One Tree Per Child or the Urban Tree Challenge Fund, consent by the Academy is required for this.

The Academy is not obliged to consult the Council regarding the maintenance, removal or planting of trees on site and has the sole responsibility for these activities. This is subject only to any Tree Protection Orders (TPO’s) and/or Conservation Area requirements that may exist for trees on the site. In these cases, a planning application must first be made and permission given before the school can proceed.

A copy of the lease is available here. There is no mention of trees in the lease.

We are intrigued to note however, that the Council retains the right to develop the school and playing fields – Schedule Three – Rights Excepted and Reserved:

It appears very likely that similar arrangements to this will be found across most of the city’s 78 Academy schools (and possibly many Maintained and Special schools), by leaving them to make their own ad hoc arrangements to care for and/or plant trees as they may/or not desire.

Given that the One City Plan aims to double tree canopy cover over the next 25 years, it seems a great shame that this important land bank (we estimate some 188 hectares – land and buildings – for Academies alone) of possible new planting sites might have been excluded from helping to achieve Bristol’s ambitious plans.

What about protecting all the trees with a TPO?

There are already at least 3,400+ established trees growing on educational sites that could be at risk. As far as we can tell, very few of these trees are protected by a TPO, though some will be are growing in a Conservation area.

So, is it possible possible to protect all the remaining unprotected trees with TPOs? At least then all schools would be obliged to get planning permission before removing or ‘managing’ trees and we will be able to see what is planned.

Local Authorities have the power to make four types of TPO:

• Individual TPOs: A single tree, illustrated as a trunk and approximate canopy spread. If trees merit protection in their own right, authorities should specify them as individual trees in the Order. 

• Group TPOs: A group of trees, usually shown as a canopy, or group of canopies, with or without stems shown. The group category should be used to protect groups of trees where the individual category would not be appropriate and the group’s overall impact and quality merits protection. 

• Woodland: Shown as an area of land. The woodland category’s purpose is to safeguard a woodland as a whole. So it follows that, while some trees may lack individual merit, all trees within a woodland that merits protection are protected and made subject to the same provisions and exemptions. 

• Area TPO: Shown as an area, without stems highlighted. The area category is one way of protecting individual trees dispersed over an area. Authorities may either protect all trees within an area defined on the Order’s map or only those species which it is expedient to protect in the interests of amenity. 

We were recently been copied this answer when this issue was raised about some trees growing in the Bearpit:

Thank you for your email requesting a Tree Preservation Order for trees within the St James Barton roundabout/ Bearpit area. We have reviewed these trees following your TPO request. We understand that you are concerned about any future plans for the Bearpit which could affect these trees and the amenity they provide. 

The national guidance on ‘Tree Preservation Orders and Trees in conservation areas’ (https://www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#making-tree-preservation-orders ) advises: 

“though some trees or woodlands may merit protection on amenity grounds it may not be expedient to make them the subject of an Order. For example, it is unlikely to be necessary to make an Order in respect of trees which are under good arboricultural or silvicultural management.” 

Furthermore, the potential effect of development on trees, whether statutorily protected (e.g. by a tree preservation order or by their inclusion within a conservation area) or not, is a material consideration. This means that tree matters must be taken into account by Bristol City Council as the Local Planning Authority when dealing with planning applications, and when undertaking consultations, and that members of the public can make clear their views. 

Given that these trees are already under existing arboricultural management, and that they would automatically be a material consideration should any future planning application come forward, it is not expedient or necessary for a Tree Preservation Order to be placed on these trees.

It appears that trees on educational land can, in theory, have TPO protection if it can be shown that they are not ‘under good arboricultural or silvicultural management’. But, how can the Local Authority know this?

However, our experience when we have requested that TPOs are made, is that the council will rarely do so, unless the trees are considered to have Amenity value and they are shown to be under immediate threat of destruction or damage. But, how can the Local Authority know this if the school is not obliged to tell them?

And…bitter experience has taught us that, whilst ‘…the potential effect of development on trees, whether statutorily protected…or not, may be ‘a material consideration’, other considerations often result in the welfare of trees being a very distant secondary consideration, with the result that they are frequently sacrificed to the too-oft-repeated argument that it is either the development or the trees, when there is no reason why it cannot be both.

So, the reality is that these trees are unlikely to be granted TPO status, save in exceptional circumstances and, even if they are, this is no guarantee of their future protection.

Our original concerns remain

We remain concerned that school governors (quite apart from lacking the necessary skills to manage the trees growing on their sites) may not yet have realised the full implications of the practical and strategic obligations that taking on such an important part of Bristol’s Natural Capital places upon them.

As a result, they are likely to buy in (at our eventual expense) ad hoc expertise, with the risk that they will overlook the wider strategic considerations that are needed when it comes to managing and promoting Bristol’s trees.

This, coupled with the distinct possibility that well-meaning, but unqualified Council officers in departments with no expertise in the management of trees may be making critical decisions about the welfare of trees across a wide range educational sites across the city, makes for a very worrying situation.

Our view is that the Council should take back the control and management of trees growing on land owned by it whether it is leased or not. Only then can we be assured that there is at least some degree of oversight and accountability, while helping us to achieve the wider strategic vision for the development of Bristol’s urban forest.