Council no longer manages trees on educational sites – Part II

Our worst fears have been realised. Schools have been left to care for the trees growing on their own sites, including those growing on school playing fields.

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.

Council no longer manages trees on educational sites – Part I

There are some 166 educational sites and 63 playing fields across the city. Together they cover over 560 hectares and form a significant proportion and an important part of the city’s open, green spaces.

Despite this, Bristol City Council no longer manages trees growing on many of these sites and their related playing fields. We are not certain, but we imagine that this situation has come about as a result of the decline in local authority control over state educational provision with the rise of independent Academies.

We issued a Freedom of Information request (FoI) to try to find out which sites remain under the control of the Council, but our request has been refused on the grounds that answering it would impose a significant burden on the council. Our more generic request at the end has also been refused on the same grounds.

The trees at Stoke Lodge Playing Fields

Recent events at Stoke Lodge and the playing fields there perhaps best illustrate our concerns and the potential threats to the many trees growing on land set aside for educational purposes.

The site was leased for 125 years to Cotham School in August 2011. Interestingly, the Council agreed to retain its responsibility for all the trees growing on the site. It also agreed to indemnify the school for any damage the school might cause to the trees and to insure against this risk.

Stoke Lodge Playing Fields are located to the west of the city in Stoke Bishop ward and cover some 8.7 hectares of open space. Historically they were part of the grade II listed lodge (now an adult learning centre) of the same name which covers about two more hectares and contains an arboretum of important trees (the survivors of a collection that formerly spread right across the historic lodge grounds).

Unlike most of the land around it, this part of Stoke Bishop is not in a Conservation Area. For some 70 years, the whole estate, which until recently had never been seen as a divided space, has been used by the local community and is designated an important open space. Nearly all the trees on the Stoke Lodge estate are subject to Tree Preservation Orders (TPO) which were placed on the trees in early 2012.

The TPO trees and canopies

In the summer of 2018 Cotham School announced that it intended to erect a fence along the boundary of its leased land. They stated that they did not require prior planning permission to do so because they were exercising their statutory Permitted Development rights. After an initial dispute about whether the school could indeed use Permitted Development rights, in January 2019 work began to erect the fence.

It was at this point that the Bristol Tree Forum became involved after it became clear that the proposed route of the fence would pass through the root zones of a large number of important trees, many of which were the subject of a TPO.

The original plan – the fence passing through the root zones of many protected trees.

There then followed a protracted period of back and forth representations while we and the local community fought to get the fence relocated to avoid damaging the trees. This was partly successful. Where it was not, we were able to insist that the methodology for erecting the fence where it still passed through tree roots was modified to minimise damage. Even so, it took the constant vigilance of the local community and BTF representatives to ensure that Cotham School did not ignore the conditions placed upon it.

Setting aside the issue of the siting of the fence, our primary argument has always been that TPO law requires a prior planning application to be made (and approved) before any work is undertaken that could cause damage to TPO trees. Initially, the Council rejected this argument, effectively stating the Permitted Development rights trump primary TPO legislation. It also argued that, anyway, it could not proactively prevent damage to TPO trees, but had to wait until the damage has been done, which is, frankly, absurd. We continued to challenge these interpretations and, eventually, the Council conceded our points, though only after the fencing had been completed.

Things then appeared to return to normal,except that the community was now largely confined the unfenced areas around the boundaries of the site. As a result, the trees around the boundary are being exposed to heavier traffic through their root zones. We are concerned that this may have a long-term, adverse impact on their health.

Then, in August of this year, and without any warning, contractors arrived to lay cable ducting across the site so that video surveillance equipment could be installed. Using a mini digger they immediately set about driving over and cutting through the root zone of a TPO Common Ash growing on the boundary of the site. Other non-TPO trees (some privately owned) were similarly damaged.

Digger in amongst the TPO Ash roots

It soon became clear that the contractors had neither been advised of the TPO status of the tree nor of the proper methods to use when working within tree root zones as set out in BS 5837 (Trees in relation to design, demolition and construction – Recommendations), or in the NJUG Guidelines for the Planning, Installation and Maintenance of Utility Apparatus in Proximity to Trees. This was despite the Council being aware of, and engaged with the school’s plans.

We lodged a complaint with the Council’s Planning department. As a result, enforcement proceedings were commenced and the school, whilst narrowly avoiding prosecution, was obliged to take remedial action to try to mitigate the damage caused to the tree. The council also felt obliged to remind the school of its obligations to TPO trees:

And this is a site where the trees are still under the ‘guardianship’ of the Council! What about those sites where the care is vested with the school?

Our concerns remain for the future health of those trees whose root areas had been invaded by the fence installation. We have also continued to express fears about other continuing threats to the trees arising as a result of other activities on the site. So far, our concerns have been ignored.

For example, continuing root compaction and branch damage is being caused to the Persian walnut growing by the gate close to the rear car park and to the trees growing beside the Parrys Lane entrance. This is the result of grass mowers and other service vehicles using these entrances to gain access to the site. We are told the access point has been moved to the Parrys Lane entrance, though that too involves vehicles passing over tree roots.

Driving over the walnut’s roots on the way to mow the playing fields

Historically, it looks like vehicles accessed the site from behind the Children’s Play Ground on the southwest of the site, so did not need to drive over any tree roots. The presence of the fence and lack of any gate there has now closed off that option.

The school’s contractors also continue to mow within the root zones of the two large Turkey oaks (BCC-77025 on the eastern end & BCC-77059 on the western end) that grow inside the playing fields fence.

The eastern Turkey oak

However, the Council and the school decline to address these issues saying that they have made adequate arrangements to safeguard the trees.

STOP PRESS – 4th January 2020 – since writing this blog, Cotham School has felled a TPO protected Elder (plus five others) on the Eastern side of the playing fields and poisoned it with Glyphosate. We have informed Bristol Council Parks and Planning Departments and asked them to investigate. They advise:

“The felled Elder trees were not included within or protected by the TPO covering the adjacent Sycamore tree.

It is very unlikely that roots from the Elder trees will have grafted with the roots from the Sycamore tree. Also translocation of herbicide between grafted roots is very unlikely.*

We are not aware of any plans to fell the twin stemmed Oak beside the white shed at the eastern end of Stoke Lodge Playing fields.”

But, when we asked Parks if these works were done with their prior knowledge and agreement, or if the department had approved the application of Glyphosate to the tree roots, or if they had seen the School’s Aboricultural Management Scheme, they answered ‘No’.

It seems that the school had complied with their obligation to get consent from the Council, their Landlord, but that the Council’s Education Asset Management team had failed to consult Park’s specialist tree officers about the plans.

More details can be found here.

Before the Elders were felled
The aftermath

Cotham School has issued these FAQs – 33 to 38 in response to this issue.

The fate of other educational sites

In the meantime, we have no idea if or how other schools are managing the trees on their sites, or if the Council is consulted when they do.

Even though, in most cases, educational sites are still on Council-owned land, the Council only needs to be told if the trees have a TPO or are growing in one of the city’s 33 conservation zones (or, we assume, if the Council’s lease with the school keeps the management of the trees in the control of the Council – as was the case at Stoke Lodge).

Given that Bristol City Council does not normally issue TPOs for trees on its own land, arguing that it is a good landlord and will look after important trees appropriately, it is unlikely that trees that have been handed over on other educational sites will have been protected by a TPO. Perhaps the council should now review its policy where it no longer manages trees growing on educational sites in light of this history.

Certainly it seems that new tree planting need no longer involve the Council. For example we recently observed that several newly planted trees at Cotham School’s main site had died. It was only when we noted that the dead trees were missing from the Council’s tree stock data for the school that we learned that they were no longer responsible for the trees on the site. We have now been told by the school that the trees were planted as part of a recent development and that the failure of these dead trees will be ‘rectified’ soon. Meanwhile, it seems that these new trees are no longer selected, managed or mapped as part of the Council’s wider tree stock strategies and that the existing trees on the site are no longer the Council’s concern.

Presumably, similar arrangements are happening across the city with other educational sites being left to make their own, ad hoc arrangements to plant trees or not. 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 of possible new planting sites might have been excluded from helping to achieve Bristol’s plans.

We are also 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 tree stock places upon them. As a result, they are likely to have to buy in (at our expense) ad hoc expertise, thereby possibly overlooking the wider strategic considerations that are needed when it comes to managing trees across the city.

This, coupled with the distinct possibility that well-meaning but unqualified Council officers may be making critical decisions about the welfare of trees on educational sites, makes for a very worrying situation.

*Here is a contrary view about using Glyphosate around and on trees – Tree pits: plants vs glyphosate