If someone removes, uproots or destroys a tree which is protected by a Tree Preservation Order, the local planning authority might send the landowner a tree replacement notice.
This is a notice telling the landowner they must replace the tree by planting another one of an appropriate size or species in the same place.
The local planning authority can issue the notice within 2 years of the date they believe the order hasn't been complied with and brought to their attention.
If you're a landowner and you've been sent a tree replacement notice, it's your responsibility to plant a new tree even if it was removed or destroyed by someone else.
If you don't do this by the time specified by the notice, the planning authority may enter your land, plant the tree itself and charge you for the cost of doing it. You could also be fined up to £20,000.
How to appeal
You have the right to appeal to Scottish Ministers if a planning authority sends you a notice telling you to plant a replacement tree.
You can find more information in Section 169 of the Town and Country Planning (Scotland) Act 1997
You can appeal against the notice on any of the following grounds:
- the tree preservation order does not apply or has already been carried out
- the requirements of the notice are unreasonable because of the time period or the tree size/species
- the planting of a tree or trees would not be practical or would not be good forestry
- the land is unsuitable for planting trees
The notice will tell you by which date you need to have planted the tree. If you want to appeal, you must do so before that date.
When a valid appeal is received, the notice will be suspended. This means you don't have to do anything until a decision's been made, even where the appeal runs beyond the effective date.
You can appeal online using the ePlanning portal
Alternatively, you can download a Tree Replacement Enforcement Notice Appeal form and submit it to Scottish Ministers by either email or post to the address on the form. You should also send a copy to the planning authority.
Your appeal submission must include the following documents:
- the local planning authority's replacement notice
- all documents, materials and evidence you want to rely on
- any letters or emails between you and the local planning authority
- your appeal, if you're appealing by post
You'll also need to submit any other documents that directly support your appeal, for example your appeal statement. You can upload these documents when you appeal online, by email or post.
There's no cost for sending an appeal, but you'll be responsible for your own expenses.
The appeals process
Once you make an appeal, the Scottish Government will choose a reporter to decide it.
The planning authority must give its response to your appeal within 21 days. You'll then have a further 14 days to comment on any new information submitted by the authority.
The appeals process has a strict timetable with deadlines for each stage. Make sure everything's sent on time. If you send information after the deadline, it may be sent back to you and not be considered.
If the reporter considers that a decision can be made on the basis of this information and no site inspection is required then they'll aim to issue this decision within 8 weeks of receiving the appeal.
They may need to get more information before they can decide. If they do, they might ask for one or all of the following:
- an inspection of the site
- further written submissions
- a hearing session (a structured meeting)
- an inquiry session (a more formal event similar to a court case
Inspection of the site
A site inspection allows a reporter to view the site and understand the issues that have been raised.
The reporter decides if a site inspection will be accompanied or unaccompanied. If it's accompanied, the local planning authority and person making the appeal will be invited to attend. Anyone else, like those who have made representations about the appeal, will be told about the arrangements and invited to the site inspection.
The reporter can't discuss the merits of the appeal.
If the reporter chooses an unaccompanied visit, they will inspect the site alone.
If the reporter thinks a decision can be made based on submissions and a site inspection, they will aim to issue a decision within 12 weeks of receiving the appeal.
Further written submissions
If the reporter needs further written submissions they will request it from the person they think will be most suitable to provide it.
If this happens the reporter will aim to issue a decision within 20 weeks of receiving the appeal.
Hearing or public local inquiry
The reporter may decide that the information they need would be best presented at a hearing or inquiry session.
The difference between a hearing session and an inquiry session is:
- a hearing session is a structured discussion led by the reporter
- an inquiry session is more like a court case - witnesses give evidence in front of the reporter
The reporter will decide if a hearing or inquiry session is required. If it is, they will aim to issue the decision on the appeal within 26 weeks (if it's a hearing) or 32 weeks (if it's an inquiry session).
You can submit an expenses claim against a person or organisation if you think they have acted unreasonably and caused you unnecessary expense. This can be in the form of a written statement sent by email or letter.
After getting an expenses claim, the person or organisation who the claim is made against (the 'opposing party') will be given 14 days to provide any comments.
The reporter will decide if they have acted unreasonably and will decide any costs that should be paid to cover these expenses.
The expenses claim is separate to the appeal. If you get awarded expenses this doesn't necessarily mean your appeal will be successful too.
You can find more information on expenses in this planning circular
If you want to withdraw your appeal
You must contact the Scottish Government if you want to withdraw your appeal.
You can do this any time before the reporter makes a decision.
You must contact the Scottish Government if you want to withdraw your appeal, or put in a request to the reporter to apply a hold on the appeal (known as a 'SIST').
Email the Scottish Government's Division of Planning and Environmental Appeals Division (DPEA) at DPEA@gov.scot or write to them at:
Planning and Environmental Appeals Division
Callendar Business Park
After taking all the evidence into account, the reporter will either:
- support the original decision
- overturn the decision
- issue a decision (if the authority originally failed to give one)
You'll get a decision notice sent to you once the reporter has made a decision.
This will include the terms of the decision and the reasons for it.
How to challenge a reporter's decision
You can't appeal the decision because you disagree with it, but you can challenge the decision if you think there was important evidence that the reporter misunderstood or didn't take into account.
If you want to challenge a reporter's decision:
- the appeal to the Court of Session must be submitted within 42 days (6 weeks) of the date of the decision
- you may have to cover the legal costs and any expenses should the challenge fail
- anyone with sufficient interest can submit a challenge
If you're unsure about any part of this process, you should get advice from a lawyer
Making a complaint
If you want to make a complaint about an appeal, you can find more information on how to do this in the Planning and Environmental Appeals Division's complaints policy
You can also find out about recent Planning and Environmental Appeals Division related decisions made by the Scottish Public Services Ombudsman.
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