55. The legislation provides no right of appeal to Scottish Ministers against a TPO, either when made or confirmed.
56. Subject to the provisions of a TPO an appeal can be made to Scottish Ministers following the refusal of an application to cut down or carry out works to trees.
57. The Scottish Government expects that planning authorities will use the Model Order ( Annex A) with respect to the provisions for appeals against refusal of consent required by a TPO. This will ensure that appeals procedures are consistent with those procedures for appealing against a decision on a planning application.
Appeals against Notices requiring the replacement of trees 37
58. A person on whom a notice requiring the replacement of trees is served upon may appeal to Scottish Ministers under section 169 on the following grounds:
- that the replacement of trees with respect to a TPO or any conditions of consent are not applicable or have been complied with;
- that in all circumstances the replacement of trees with respect to a TPO should be dispensed with;
- that the requirements of the notice are unreasonable in respect of the period or the size or species of trees specified in it;
- that the planting of a tree or trees in accordance with the notice is not required in the interests of amenity or would be contrary to the practice of good forestry;
- that the place on which the tree is or trees are required to be planted is unsuitable for that purpose.
59. An appeal may be made by either giving written notice to the Scottish Ministers before the end of the period in the Notice requiring the replacement of trees of which it is to take effect, or by sending such notice to them in a properly addressed and prepaid letter posted to them at such time, in the ordinary course of post, it would be delivered to them before the end of that period.
60. A person who makes an appeal to Scottish Ministers shall submit either when giving notice 38 a statement in writing:
- specifying the grounds on which he is appealing against the notice requiring the replacement of trees; and
- giving such further information as may be so prescribed.
61. Scottish Ministers may prescribe the procedure to be followed on appeals against notices requiring the replacement of trees. Circular 6/2009 Planning Appeals 39 explains the processes involved in appeals to Scottish Ministers.
62. Where such an appeal is brought, the notice requiring the replacement of trees shall have no effect pending the final determination or the withdrawal of the appeal.
63. On Such an appeal the Scottish Ministers may:
- correct any defect, error or misdescription in the notice; or
- vary its terms,
if they are satisfied that the correction or variation will not cause injustice to the appellant or the planning authority.
64. On determination of such an appeal the Scottish Ministers shall give directions for giving effect to the determination including, where appropriate, directions for quashing the notice.
65. Schedule 4 of the Act (determination of certain appeals by a person appointed by Scottish Ministers) applies to appeals against notices requiring the replacement of trees.
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