AIE - Article 5 certificate

Article 5 Certificate

Introduction

If a tree is subject to a 'Tree Preservation Order' (TPO) then a document that contains the details of 'the order' must be served upon the tree owner. Such a document must follow the layout of the 'Model Order' contained within the controlling legislation. The order is divided into a number of sections or 'Articles'. Each article deals with a specific part of the TPO.

Change of Model Order.

On the 2nd August 1999, the Town & Country Planning (Trees) Regulations 1999 came into force. Amongst other things, these regulations changed the layout of the 'Model Order' so that all TPOs served on or after that date are subject to the new articles contained within the new style order. However, the older style order and its legally binding articles are still applicable to TPO's served before this date.

Old Model Order prior to 2nd August 1999

Articles 2-4

Article 2 of the old model TPO prevents any person from felling or pruning a tree covered by the TPO unless the Local Planning Authority (LPA) has consented to such works. Article 3 allows a person to apply to the LPA to carry out works to the tree. Article 4 allows the LPA to refuse permission for the works or to grant permission (with conditions attached if required).

Article 5

Article 5 of the TPO allows the LPA to issue a certificate (called an Article 5 Certificate) with its decision to refuse or grant works. Such a certificate would state that 'the trees have an outstanding or special amenity value' or that their decision 'is in the interests of good forestry'. Once a certificate has been issued, the exemption contained within Article 9 of the order removes the LPAs duty to pay compensation for damages arising from their decision. Note: Such a certificate is not mentioned within the new model order which became effective on 2nd August 1999, so such a certificate can not be issued on TPOs made on or after this date. However, the certificate can still be issued for TPOs made prior to this date.

Article 9

Article 9 describes how a person who has suffered loss or damage due to the LPAs decision (to modify, revoke, refuse works, place conditions on works, etc) of the TPO can claim compensation from the LPA. However, such compensation is not available if an Article 5 Certificate has been issued with the LPAs decision.

Guidance

Use of the Article 5 Certificate was intended to be occasional. Section 6.67 of 'Tree Preservation Orders: A Guide to the Law and Good Practice', states that:

LPAs are advised to use article 5 certificates with discretion and not simply as a means of avoiding the potential liability of compensation. The LPA should consider each case on its merits and must, when issuing a certificate, be satisfied that their decision is in the interests of good forestry, or that the trees, groups of trees or woodlands have an 'outstanding' or a 'special' amenity value.

And guidance contained within Section 62 of the DoE Circular No: 36/78 'Trees and Forestry' states that:

Where an authority refuse consent or impose conditions, any person who has suffered loss or damage as a result may claim compensation from the authority (Article 9 of the prescribed order). Such compensation is not payable where, under Article 5 of the prescribed form of order, an authority certifies that their decision is in the interests of good forestry or, except in woodlands, that the trees have an outstanding or special amenity value. The issue of such certificates, particularly in the latter case, should be undertaken discriminantly and should not be used just to avoid compensation claims.

Town & Country Planning (Trees) Regulations 1999

Remember, on the 2nd August 1999, the rules were changed slightly by the above legislation. On all TPO's made on or after this date, Local Planning Authorities (LPAs) were no longer able to issue a certificate because they were removed from the model order. The issuing of a certificate on TPOs made before this date is still acceptable. This means that the rules governing compensation changed on this date. For more information regarding the changes to TPO procedure visit the following link: Town & Country Planning (Trees) Regulations 1999.

Link to Tree Preservation Orders.
Link to Tree Preservation Orders: A Guide to the Law and Good Practice.
Link to DoE Circular No:36/78
Link to law case Beyers v. Secretary of State and Uttlesford D.C. 2000.

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