COUNTERING THE THREAT TO TRADITIONAL ORCHARDS THROUGH POLICY & LEGISLATION

INTRODUCTION

Traditional orchards, and with them most of their special biodiversity interest, disappear for a variety of reasons depending on the type of land holding in which they are incorporated. In order to try and halt the losses we need to approach those different reasons with specific and targeted responses.

Where traditional orchards are part of a commercial operation - whether the orchard is active or lapsed - the threat is usually that they will be put into some form of intensive cultivation. In these cases their future will probably be best be secured through adoption into an agri-environment scheme that rewards the land user for continuing low intensity cultivation. This advice will leave the consideration of agri-environment schemes to others.

However, there are many traditional orchards that are not part of commercial operations. They may be domestic orchards associated with former farmhouses or smallholdings; they may be relict orchards that have been, or are about to be, swallowed up by the expansion of settlements or they may always have been part of a larger urban garden. It is these types of orchard that are particularly under threat from building development – all the more so as quite bizarrely they often come into that category of land use known as ‘previously developed’ which the government has singled out as especially suitable for house building.

Development comes about after planning consent and the gift of consent is governed by policies and legislation. There are layers of policies and legislation that the planning process must consider but the conclusion will inevitably be a balance of many factors. The opportunities presented below are intended to help orchard champions promote traditional orchards to the extent they deserve.

WHAT DECIDES A PLANNING APPLICATION?

The process of deciding planning applications is intended to work by the comparison of the merits of an application with adopted policies. Policies may or may not be supported by legislation and can originate at international, national, regional and local level. There is a strong presumption that Local Planning Authorities will make decisions guided by their relevant adopted polices, although in practice this guidance may sometimes be felt more heavily by planning officers than by the committees of elected members with whom executive decisions rest.

Let’s start with the big concept and The European Landscape Convention (2000) - it has beenUK binding since March 2007 andArticle 5a states that:

“Signatories are expected to recognise landscapes in law as an essential component of people’s surroundings, an expression of the diversity of their shared cultural and natural heritage, and a foundation of their identity.”

In a consultation draft document, aimed towards expressing the European concept in an English context, entitled ‘All Landscapes Matter’, Natural Englandpropose that:

“All landscapes matter: they should be managed, planned and, where appropriate, protected through a landscape character approach to be distinctive and highly valued while delivering a full range of ecosystem goods and services.”

Landscapes in which traditional orchards are characteristic elements are worthy of recognition and protection under the terms of these declarations.

The quest for the sustainable use of natural resources was the theme of the 1992 Earth Summit attended by 150 World leaders in Rio de Janeiro. The Convention on Biological Diversity, a product of the Rio Summit, committed signatories to develop national strategies for the protection and sustainable use of biodiversity.

The UK government published its own strategy in 1994 - Biodiversity: The UK Action Plan to which priority habitat and species action plans have accreted since. A parallel process operates at local – generally county based – levels.

Song thrush, bullfinch, noble chafer, lesser spotted woodpecker and hedgehog to mention a few species which are iconic of traditional orchards, have national and/or local action plans.

At the National level, the Government sets out its overarching guidance in a series of Planning Policy Statements and Planning Policy Guidance.

Planning Policy Statement 9: Biodiversity and Geological Conservation (PPS9) is the most important of these for nature conservation issues and includes the following instructions regarding Local Development Frameworks:

“Local authorities should take an integrated approach to planning for biodiversity and geodiversity when preparing local development documents. They should ensure that policies in local development documents reflect, and are consistent with, national, regional and local biodiversity priorities and objectives (including those agreed by local biodiversity partnerships).”

Local Biodiversity Partnerships are the organisations that develop local versions of the United Kingdom Biodiversity Action Plan and identify habitats of local as well as national importance to the conservation of biodiversity. PPS9 goes on to advise that Local Development Frameworks should:

“Identify any areas or sites for the restoration or creation of new priority habitats which contribute to regional targets, and support this restoration or creation through appropriate policies.”

PPS9: A Guide to Good Practice (2006) recommends that Local Planning Authorities adoptpolicieswith a presumption to retain those habitats that are not only the subject of statutory protection, but also ones which may be county wildlife sites or have UK and/or Local Biodiversity Action Plans. Veteran trees are singled out in the guidelines as being of particular value, as is the importance of protecting smaller sites to act as "stepping stones" between major habitats of biodiversity value; a proposal latterly known as Ecological Networks.

Regional Plans aim to set the strategic priorities for local planning authorities. TheEast of England Plan for example, contains this guidance in its Environment section:

“ In their plans, policies and programmes local planning authorities and other agencies should seek to:

  • Protect for their own sake, all important aspects of the countryside, including individual features, special sites, their setting and the wider landscape.
  • Through the development plan system, conserve and enhance wherever possible regional and local distinctiveness and variety based on a thorough assessment of local character……”

Local Development Frameworks are the documents in which Local Planning Authorities set out the policies by which they will determine planning applications in their area. Such documents will normally contain policy statements to the effect that only in exceptional circumstances should development have an adverse effect on sites – international, national or local, UK or Local BAP Priority Habitats - designated for the conservation of biodiversity.

It would therefore be highly desirable to secure some sort of conservation designation for a threatened orchard.

Sites of Special Scientific Interest: there is a strong statutory presumption against any proposal or activity likely to damage a designated SSSI. However, NE is reportedly reluctant to designate additional SSSIs so it is unlikely that there will be any extension of existing protection of traditional orchards by this route.

A Traditional orchard could be designated as a Local Nature Reserveproviding that a public body that could maintain and improve it and make provision for its use as a study and educational resource could acquire the land. If an orchard was a part of a much larger development site it might be possible to retain it as a ‘community orchard’. Supplementary Planning Documents (SPD) on Biodiversity can show examples of how to integrate orchards into development schemes and thereby subscribe to the delivery of ‘ecosystem services’ through the concepts of:

  • Sustainable communities
  • Outdoor health and well-being
  • Local distinctiveness - particularly if the orchard contains local fruit varieties
  • Historic landscape character

However, it is doubtful that this would be any defence of a smaller site proposed for development, save through an act of philanthropy, as the qualifying criteria above could not otherwise be satisfied except by compulsory purchase with potentially huge attendant compensation.

Local Sites/County Wildlife Sites: almost by definition, traditional orchards have strong potential for designation as County Wildlife Sites dependent on the adopted criteria of the relevant county group. ‘Local sites’ ratification committees sometimes only designate with the landowner’s consent, which is an admirably inclusive gesture but perhaps a little naïve in the cut and thrust of consent planning.

Settlement boundaries as shown in local plan documents, set out where there is a presumption in favour of certain sorts of development. Ideally, traditional orchards should not be included within designated settlement boundaries as inclusion within such a boundary satisfies the first, and perhaps greatest test, of suitability for development. If your district’s Local Development Framework is still under consultation you should make representations to that effect.

The Natural Environment and Rural Communities Act 2006 (NERC)

The NERC Act was something of a milestone in the relationship between local authorities and conservation planning. Section 40 contains, for the first time, a general but statutory duty:

“Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity”

If you are contemplating the loss of all or part of an orchard to development The Guidance for Local Authorities in Implementing the Duty describes how financial contributions can be taken from developers specifically for use in nature conservation:

“Planning obligations are particularly useful when seeking to secure enhancement or mitigation outside of the application site, for example, through financial payments to ensure improved and ongoing management of nature conservation sites”.

Having said that, it can be difficult to persuade planners to use this recently acquired tool and it is not altogether clear how far away from the funding development that the contribution can be spent. For example, should part or whole of an orchard to be lost to development, it might be acceptable to take and deliver contributions for the maintenance of another orchard in the district that was identified as a site of conservation value and presumably under management by a conservation body such as a Wildlife Trust.

The Conservation (Natural Habitats, &c.) Regulations 1994: ‘The Habitats Regulations’

Although the Habitats Regulations have been around for some time, their power is increasingly being appreciated. Time and time again the same sort of wording comes up in legislation and guidance notes, such that it is a wonder that we have to fight as hard and with such limited success as we do.

Regulation 37: Nature conservation policy in planning contexts is particularly eloquent:

…policies in respect of the conservation of the natural beauty and amenity of the land shall be taken to include policies encouraging the management of features of the landscape which are of major importance for wild flora and fauna.

Such features are those which by virtue of their linear and continuous structure (such as rivers with their banks or traditional systems of marking field boundaries) or their function as stepping stones (such as ponds or small woods), are essential for the migration, dispersal and genetic exchange of wild species.

Traditional Orchards fall beautifully into this description and this wording should be used a rallying point.

Town and Country Planning Act 1990: Tree Preservation Orders

Tree Preservation Orders (TPO) can be made under the Town & Country Planning Act that afford protection to trees specified in the order. Contrary to popular belief, they can be made to protect orchard trees but they must be seen pretty much as a last ditch defence.

Section 198 of the Act says:

If it appears to a LPA that it is expedientin the interests of amenity to make provision for the preservation of trees or woodlands in their area, they may make for that purpose an order with respect to such trees groups or woodlands as may be specified in the order.

Factors justifying the test of expediency might include threat of felling, likely development or maybe a change of property ownership. The perceived threat does not necessarily have to be immediate and the order may be made on a precautionary basis as long as the risk is reasoned and reasonable.

While amenity is not defined in the act it has been accepted as meaning: pleasant circumstances, features or advantages; all the benefits that accrue; a useful or desirable feature of a place or pleasantness - a thing or circumstance that makes life more pleasant.

LPAs should assess amenity value in a structured and consistent way taking into account:

  • Visibility – contrary to popular belief, although visibility is important, it is not an exclusive requirement
  • Context in the physical, cultural & historic landscape
  • Biodiversity value - PPS9: Biodiversity and Geological Conservation & the NERC Act: both recognise that biodiversity value can be a fundamental qualifying feature of a TPO.

Many people feel that they are constrained by ‘Tree Preservation Orders: A Guide to the Law and Good Practice’ (published by DETR/DCLG) – commonly known as the “Blue Book”. However, the Blue Book is a guide and some are of the opinion that the Blue Book represents little more than a departmental ‘wish list’. The wording of the Act itself is supreme and even this is constantly being interpreted and re-interpreted by the courts. For instance, the concepts of ‘dead, dying and dangerous’ change over time in response to social context and our understanding of tree biology and since every advocate has a particular interest to promote, those charged with conserving biodiversity should not be shy of focussing the debate on its value.

Although there are exceptions included in the form of the order itself which say:

Nothing …shall prevent—
  • The cutting down, topping, lopping or uprooting of a tree cultivated for the production of fruit in the course of a business or trade where such work is in the interests of that business or trade;
  • The pruning, in accordance with good horticultural practice, of any tree cultivatedfor the production of fruit;

Nevertheless, all is not lost and if commercial activity has ceased, a TPO can prevent removal and/or inappropriate pruning of orchard trees, although regrettably, it would not necessarily retain the orchard in a “traditional” manner, as it would afford no control over the ground vegetation.

Conclusion

All in all, while no single approach is wholly satisfactory, there is a considerable range of statutory instruments, policies and plans available that can be brought to bear in attempts to safeguard traditional orchards. An imaginative and confident use of measures from the foregoing list may achieve the desired end.