Protective structures for orchards and Priority Habitats
This section describes existing methods that can be used to attempt to get a traditional orchard or Priority Habitat protected from development and/or available for community use. Please be aware that there is no default protection, and without one of these measures being in place there is little to stop a landowner from removing an orchard as long as it yields less than 5 cubic metres of timber (i.e. below the threshhold for a felling licence). Some subtlety may be called for in the first instance.
- + Tree Preservation Orders (TPOs)
- Traditional orchard is visible to public and its amenity value can be demonstrated.
The Town and Country Planning (Tree Preservation) (England) Regulations 2012
Local planning authorities can make a Tree Preservation Order if it appears to them to be ‘expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area‘. An Order can be used to protect individual trees, trees within an area, groups of trees or whole woodlands. Orchards can only be considered for a TPO if they are no longer used commercially.
Authorities can either initiate this process themselves or in response to a request made by any other party. ‘Amenity’ is not defined in law, so authorities need to exercise judgment when deciding whether it is within their powers to make an Order. An Order prohibits the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees without the local planning authority’s written consent.
It may be expedient to make a TPO if the authority believes there is a risk of trees being damaged in ways which would have a significant impact on amenity value. But immediate risk is not necessary for there to be a need to protect trees. In some cases the authority may believe that certain trees are at risk as a result of development pressures and may consider where this is in the interests of amenity that it is expedient to make an Order. Changes in property ownership and intentions to fell trees are not always known in advance, so it may sometimes be appropriate to proactively make TPOs as a precaution.
All trees greater than 3 inches at chest height within a Conservation Area must be assessed for suitability for a TPO before any work is done on them.
Criteria for TPO application
Visibility – The trees, or at least part of them, should normally be visible from a public place, such as a road or footpath, or accessible by the public.
Individual, collective and wider impact – Public visibility alone will not be sufficient to warrant an Order. The authority is advised to also assess the particular importance of an individual tree, of groups of trees or of woodlands by reference to its or their characteristics including:
- size and form;
- future potential as an amenity;
- rarity, cultural or historic value;
- contribution to, and relationship with, the landscape;
- contribution to the character or appearance of a conservation area.
Where relevant to an assessment of the amenity value of trees or woodlands, authorities may consider taking into account other factors, such as importance to nature conservation or response to climate change. These factors alone would not warrant making an Order.
Template text for TPO Request (contact local authority Tree Officer)
[x] orchard is a traditional orchard (Priority Habitat) that merits protection from development and damage through a Tree Preservation Order (TPO). Views of the orchard are enjoyed by the local community from the nearby road/railway line/footpath/bridleway/cycle path and the site has a high amenity value due to its public access/although the site is not accessible to the public, it is an intrinsic part of the local landscape. There has been an orchard on this site for at least [x] years and yet the site still has great future potential due to the longevity of fruit trees. The site is a prime example of the traditional orchards that were historically much more prevalent in the local landscape and this habitat continues to be in decline across the country. The orchard contains fruit varieties of great rarity and local heritage which warrant preservation. Traditional orchards were designated as a UK Priority Habitat in 2007 for their high biodiversity value, and this should also be considered as it strengthens the amenity value of the site. Non-commercial fruit trees have been included in TPO Regulations since 1999, recognising their amenity value and longevity. Even if there is doubt over the expediency of serving a TPO in this case, it is better to make a temporary TPO and deal with objections if they arise than to lose the trees, leaving the Council exposed to accusations of negligence in their duty to protect important trees on potential development sites during an Ombudsman complaint investigation.
- + Assets of Community Value
- A local group would be willing to manage the traditional orchard for the benefit of the community and the landowner is not receptive and wishes to sell the land for development.
Part 5, Chapter 3 of Localism Act 2011
Every neighbourhood has amenities that play a vital role in local life. Local life would not be the same without them, and if they are closed or sold into private use, it can be a real loss to the community. Community groups wishing to take over these assets often need more time to organise a bid and raise money than the private enterprises bidding against them.
Local council required to maintain a list of ‘community assets’. These must further the social wellbeing or social interests of the local community, or have been used to do so in the recent past.
Nominations for these community assets can be made by parish councils or by groups with a connection with the community, who will be invited to make a bid if the land is put up for sale. There is no compulsion on the landowner to sell, and the group is only ensured an opportunity to bid, not first refusal.
Examples of orchards successfully listed:
Highfields Community Orchard, Huddersfield WYOR0381 (Kirklees Council)
Nupend Orchard, Horlsey, GLOS2805 (Stroud Council)
Community Orchard, Week, DEVO1528 (South Hams District Council)
And one currently going through the process:
The Walnut Orchard, Bishop Sutton BATH0267 – Proposed by Stowey Sutton Parish Council for being an “unusual feature which provides green space”.
Template text for Asset of Community Value Nomination
[x] Orchard is a traditional orchard of great value to the social wellbeing of the local community. It should be listed as an Asset of Community Value to give an opportunity for the community to take it on if it is put up for sale for development. The orchard has a high amenity value to the community through its visibility from the nearby road/railway line/footpath/bridleway/cycle route as well as the enjoyment of the site through its public access. The site has been frequently used for community events such as […]. If the site were to be managed by a community group, this would only increase its value to local people, enabling greater use for community events. There has been an orchard on the site for at least [x] years and it therefore makes a significant contribution to local heritage, particularly through its rare local fruit varieties. Traditional orchards were made a UK Priority Habitat in 2007 for their high biodiversity value, and therefore this site makes a great contribution to the enjoyment of wildlife, such as birds and pollinating insects, by the local community.
- + Community Orchards
- A local group would be willing to manage the traditional orchard for the benefit of the community and the landowner is also receptive.
Community Orchards have been encouraged by government as part of the localism agenda and are most likely to arise in two scenarios. The first is a continuation of an orchard being listed as an Asset of Community Value and successfully purchased by a community group. The other is that the landowner is open to the idea of community management of an orchard on their land. The landowner may well be the Local Authority. Community green spaces enjoy a high level of protection.
If the Community Orchard is planned with a willing landowner, land agreements will be needed to establish the responsibilities of each party. As a Community Orchard, the main aim of the project is unlikely to be the sales of produce and therefore land agreements that are likely to be relevant to the scheme include a Licence Agreement (without business permission clause) and a Business Lease (with no trade clause). More details on arranging the legal side of a Community Orchard are provided by the Community Land Advisory Service: http://en.communitylandadvice.org.uk/en/resource/leases-woodland-management-agreements-england-wales.
Also see orchard books section of the bibliography which lists a couple of excellent books about community orchards by Common Ground.
- + Designations
- The traditional orchard has demonstrably high biodiversity and the local authority is open to the idea of new designations of County Wildlife Sites or Local Nature Reserves.
Traditional orchards have strong potential for one of the various Local Site designations (e.g. County Wildlife Site) depending on the adopted criteria of the relevant county group. Their high biodiversity and declining extent across the landscape means that they are likely to meet these criteria. Be aware that some local authorities only designate Local Sites with the landowner’s consent, so this will do little to save traditional orchard that a landowner intends to develop.
Local Nature Reserves (LNRs)
A traditional orchard could be designated as a Local Nature Reserve if it can be controlled by the local authority through ownership, lease or agreement with the site owner. These are made by local authorities under Section 21 of the National Parks and Access to the Countryside Act 1949, and amended by Schedule 11 of the Natural Environment and Rural Communities Act 2006. As traditional orchards are of importance to wildlife, education and public enjoyment, they could be candidates for this designation. Protection for LNRs is a high priority.
- + Neighbourhood Plan
The Neighbourhood Plan is suitable for mid-sized villages to small towns or a borough of a larger town. Once a greenspace is designated within the Plan, there is a strong presumption against development. The setting up of these is a large undertaking but well worth the effort. The process is beyond the remit of this page but the Government website is as good a place to start as any.
- + Local Plan, National Planning Policy
The Local Plan sets out the key policies of every Local Authority with regards to town planning. The Government Guidance is here. Some Local Plans are well presented in digestible webpage-sized bites, whilst others are barely penetrable with all strategies, policies, rationales, maps and evidence being provided in a few 500 page pdf documents. Local Authorities must have a local plan, but some seem to be perpetualy in the process of preparing them. However, once they are in place, they will be effective for a over a decade, probably until around 2030, and pretty much set in stone so it’s worth being extremely vigilant regarding which land is included in Strategic Housing Land Availability Assessments (SHLAA), sometimes known under other names and policies, like the five year housing land supply.
Read the Local Plan carefully to make sure it fully complies with the National Planning Policy Framework. The NPPF is not strong on biodiversity but does have a number of useful clauses regarding local green space, heritage, and wildlife and, in contrast to many Local Plans, is written in plain English. The clauses most relevent to orchards and habitats are summarised in this document.
Inspect the maps for infill as these are frequently where old forgotten orchards will be; cross-reference with land designations and habitat maps on MAGIC; and look on old maps to see if there was an orchard on the site – there could be a long abandoned one within scrubby woodland. The traditional orchards map can also be found here and is more up-to-date than MAGIC.
- + 25 Year Environment Plan
The Government’s 25 year plan for the environment includes several targets that advocate the preservation and enhancement of traditional orchards and other priority habitats. Unfortunately the plan currently comes with no statutory regulation so there is no legal framework of enforcement.
- creating or restoring 500,000 hectares of wildlife-rich habitat outside the protected site network, focusing on priority habitats as part of a wider set of land management changes providing extensive benefits
- taking action to recover threatened, iconic or economically important species of animals, plants and fungi, and where possible to prevent human induced extinction or loss of known threatened species in England and the Overseas Territories
- safeguarding and enhancing the beauty of our natural scenery and improving its environmental value while being sensitive to considerations of its heritage.
The second bullet, above, would require comprehensive surveys to be conducted to first ascertain that threatened species are extant at a site. This is rarely done without external pressures, the ecological reports are rarely thorough, and there is a risk of a conflict of interest because the ecologist is in the pay of the developer. A priority habitat should be considered (fittingly) a priori to contain threatened species.