The Duty to Replace Trees
39. Under Section 167 of the Act the landowner is under a duty to replace a tree which is removed in contravention of the TPO. Outside woodlands the duty also applies if the tree is removed because it is urgently necessary to do so in the interests of safety.
40. The duty on the landowner is to plant another tree of an appropriate size and species at the same place as soon as he/she reasonably can.
41. The duty transfers to the new owner if the land changes hands. 23 When planted, the replacement tree is automatically protected by the original TPO. 24 The planning authority has powers to dispense with the duty to plant a replacement tree. 25
The Duty to Replace Woodlands
42. With respect to woodlands, it is sufficient if the landowner 26 plants the same number of trees:
- on or near the land on which the trees stood; or
- on such other land as may be agreed between the planning authority and landowner;
- and in such places as may be designated by the planning authority.
Enforcing the Duty: Notices Requiring the Replacement of Trees
43. If it appears to a planning authority that a duty to replace trees or woodlands has not been complied with they can enforce the duty by serving on the landowner a notice under section 168 of the 1997 Act (a notice requiring the replacement of trees). The notice requires to be served within 2 years from the date of the alleged failure to comply with the duty. The notice also requires to specify a period at the end of which it is to take effect and cannot be a period less than 28 days beginning with the date of the service of the notice.
Enforcing Conditions of Consent Section
44. The planning authority may also serve a notice under section 168 requiring the replacement of trees to enforce against any condition of consent granted under a TPO requiring the replacement of trees. Again it must appear to the planning authority that the condition has not been complied with, and the notice must be served on the landowner. The notice requires to be served within 2 years from the date of the alleged failure to comply with the duty. The notice also requires to specify a period at the end of which it is to take effect and cannot be a period less than 28 days beginning with the date of the service of the notice.
45. Trees planted in accordance with a condition are automatically protected by the original TPO. 27
Execution and Costs of works required by Section 168 Notice.
46. If within the period specified in the notice of the replacement of trees or within such an extended period as the planning authority allow any trees which are required to be planted have not been planted then the planning authority may: 28
- enter the land and plant those trees; and
- recover from the landowner or lessee any reasonable expenses incurred.
47. If the landowner or lessee was entitled to appeal to the Scottish Ministers but did not do so, the landowner or lessee will not be able to dispute the validity of the action of the planning authority to plant trees or to recover reasonable expenses. 29
48. In calculating the amount of expenses to be recovered the planning authority may include in that amount the proportion of administrative expenses as seems to be appropriate. 30
49. Where a notice requiring the replacement of trees has been served:
- any expenses incurred by the owner, lessee or occupier of any land for the purpose of complying with the notice; and
- any sums paid by the owner or lessee of any land with respect to expenses incurred by the planning authority in planting trees with the notice
are recoverable from the person responsible for the cutting down, destruction or the removal of the original trees. 31
50. If a landowner complains and it appears to a sheriff that the occupier of the land is preventing the carrying out of the work required under the notice of the replacement of trees, the sheriff may be warrant authorise the owner to go on to the land and carry out the work. 32
51. The planning authority which executes the works required by a notice of the replacement of trees may sell any materials removed by it from the land unless the owner claims those materials within 3 days of their removal by the planning authority. Where such materials are sold the planning authority shall pay the owner the proceeds of the sale after deducting any expenses recoverable by them. 33
52. Where a planning authority seeks to recover reasonable expenses from the landowner and the landowner proves:
- he/she is receiving the rent in respect of that land merely as a trustee, tutor, curator, factor, or agent of some other person; and
- he/she has not, since the date of the service on him/her of the demand for payment has not had, in his/her hands on behalf of that other person sufficient money to discharge the whole demand of the authority,
his/her liability shall be limited to the total amount of money which he/she has or has had in his/her hands on behalf of that other person. 34
53. A planning authority which has not recovered the whole of any such expenses from a trustee, tutor, curator, factor or agent for the reasons above, may recover any unpaid balance from the person on whose behalf the rent is received. 35
54. Any person who wilfully obstructs a person executing the notice of the replacement of trees shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. 36
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