Environmental Protection (Trees) Act 2014

Link to law: http://www.gibraltarlaws.gov.gi/articles/2014-01o.pdf
Published: 2014-02-27

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I ASSENT Environmental Protection (Trees)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-01


ENVIRONMENTAL PROTECTION (TREES) ACT 2014

Principal Act

Act. No. 2014-01 Commencement 27.2.2014
Assent 24.2.2014




Amending
enactments
Relevant current
provisions
Commencement
date


Environmental Protection (Trees)
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2014-01


Environmental Protection (Trees)
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2014-01
ARRANGEMENT OF SECTIONS

Section

PART I
PRELIMINARY

1. Title and commencement.
2. Interpretation.
3. Application of this Act.

PART II
TREE PRESERVATION ORDERS

4. Tree Preservation Order.
5. Procedure after making a Tree Preservation Order.
6. Variation or revocation of a Tree Preservation Order.
7. Notice to remedy dangerous or infested tree.
8. Prohibited activity.
9. Application for consent in respect of a Tree Preservation Order.
10. Determination of applications for consent made under section 9.
11. Register.

PART III
TREES NOT SUBJECT TO PART II

12. Application of Part III.
13. Prohibition.
14. Application for consent under Part III.
15. Determination of applications for consent under section 14.

PART IV
EXCEPTIONS, ETC.

16. Exceptions.
17. Replacement of trees.
18. Appeals.
19. Right to enter any land.
20. Electronic communications.
21. Power to make Regulations.
22. Amendment of Schedule.
23. Governor’s constitutional responsibilities.
24. Amendment of the Town Planning Act 1999.
25. Transitional provision.

SCHEDULE

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Environmental Protection (Trees)
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2014-01
AN ACT TO PROVIDE FOR THE PRESERVATION AND PROTECTION OF TREES; AND FOR CONNECTED PURPOSES.


PART I
PRELIMINARY

Title and commencement.

1. This Act may be cited as the Environmental Protection (Trees) Act 2014
and comes into operation on the day of publication.

Interpretation.

2. In this Act, unless the context otherwise requires–

“Commission” means the Development and Planning Commission
established under section 3 of the Town Planning Act 1999;

“land affected by the Order” means the land on which the tree, group of
trees or woodland to which a Tree Preservation Order relates is
situated;

“Minister” means the Minister with responsibility for the Environment;

“Tribunal” means the Development Appeals Tribunal appointed under
section 24(2) of the Town Planning Act 1999.

Application of this Act.

3.(1) Subject to the provisions of this section, this Act binds the Crown.

(2) No act or omission done or suffered by or on behalf of the Crown
constitutes an offence under this Act.

(3) The Government may certify that in the interests of the security of
Gibraltar the right of entry under section 19 shall not be exercisable in
relation to the premises specified in the certificate.

PART II
TREE PRESERVATION ORDERS

Tree Preservation Order.

4.(1) The Commission may make an Order for the preservation of any tree,
group of trees or woodland.

Environmental Protection (Trees)
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(2) An Order made under subsection (1) shall be known as a Tree
Preservation Order.

(3) A Tree Preservation Order shall–

(a) specify the tree, group of trees or woodland to which it relates;

(b) if the Order relates to a group of trees, specify the number of
trees of each species in the group; and

(c) indicate the position of the tree, group of trees or woodland by
reference to a map and its geographical coordinates.

Procedure after making a Tree Preservation Order.

5.(1) Subject to subsection (2), the Commission shall after making a Tree
Preservation Order serve a copy of it on the owner and the occupier of the
land affected by the Order.

(2) Where the Order relates to a tree, group of trees or woodland situated
on land owned by the Government, a copy of the Order shall be served on
the relevant government department, agency or authority responsible for
that land.

(3) The Commission shall make a copy of the Order available for public
inspection at the office of the Town Planner and may also make the Order
available by electronic means.

Variation or revocation of a Tree Preservation Order.

6.(1) The Commission may vary or revoke a Tree Preservation Order to
such an extent as it considers necessary.

(2) Where the Commission varies or revokes a Tree Preservation Order it
shall endorse the original Order with a statement to the effect that the Order
has been varied or revoked and specifying the date.

(3) Where the Commission varies a Tree Preservation Order it shall serve–

(a) a copy of the Order as varied; and

(b) a statement explaining the effect of the Order as varied,

on the owner and the occupier of the land affected by the Order.

(4) Where the Commission revokes a Tree Preservation Order it shall
notify the owner and the occupier of the land affected by the Order that the
Order has been revoked.
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Notice to remedy dangerous or infested tree.

7.(1) If it appears to the Commission that a tree, group of trees or woodland
that is subject to a Tree Preservation Order–

(a) is infected with any infestation or disease; or

(b) is in such a condition that it is likely to cause danger to any
person or damage to any property,

it may serve a notice on the owner of the land affected by the Order
requiring such steps to be taken, as may be specified in the notice, to
prevent, cure or control the infestation or disease, or remedy the condition,
of the tree, group of trees or woodland.

(2) A notice under subsection (1) shall specify the period, not being less
than 28 days from the date of service of the notice, by which the specified
steps are required to be taken.

(3) A person who fails to comply with a notice served under subsection
(1) commits an offence and is liable on summary conviction to a fine at
level 3 on the standard scale.

Prohibited activity.

8.(1) A person shall not prune, cut down, top, lop, uproot, wilfully damage
or wilfully destroy a tree that is subject to a Tree Preservation Order without
the written consent of the Commission and, where consent is given subject
to conditions, in accordance with those conditions.

(2) A person who contravenes subsection (1) commits an offence and is
liable on summary conviction to a fine at level 5 on the standard scale.

Application for consent in respect of a Tree Preservation Order.

9.(1) An application for consent to prune, cut down, top, lop or uproot a
tree that is subject to a Tree Preservation Order shall be made to the
Commission.

(2) An application under this section shall–

(a) be made in writing on a form provided by the Commission for
that purpose;

(b) include the particulars specified in the form;

(c) be accompanied by–
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(i) a plan which identifies the tree, group of trees or
woodland to which the application relates;

(ii) such information as is necessary to specify the work for
which consent is sought;

(iii) a statement of the applicant’s reasons for making the
application; and

(iv) appropriate evidence describing any structural damage to
property or in relation to tree health or safety, as
applicable.

Determination of applications for consent made under section 9.

10.(1) An application for consent made under section 9 shall be determined
by the Commission who may–

(a) grant consent either unconditionally or subject to conditions; or

(b) refuse consent.

(2) Without prejudice to the generality of subsection (1)(a), the conditions
subject to which consent may be granted may include conditions with
respect to–

(a) the planting of one or more trees, including conditions about
how, where or when planting is to be done;

(b) conditions requiring things to be done, or installed, for the
protection of any trees planted in pursuance of conditions
under paragraph (a);

(c) requiring approvals to be obtained from the Commission;

(d) specifying the standard to which the works for which consent
has been given must be carried out;

(e) limiting the duration of consent.

(3) The Commission shall notify the applicant of its decision by notice in
writing.

(4) Where consent is granted under subsection (1)(a) it shall be valid for a
period of two years beginning with the date of its grant.

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(5) A grant of consent under subsection (1)(a) shall (except so far as the
consent otherwise provides) enure for the benefit of the land to which the
Tree Preservation Order relates and of all persons for the time being
interested in it.

Register.

11.(1) The Commission shall maintain a register containing the following
information−

(a) the Tree Preservation Orders made by the Commission;

(b) details of any application for consent made under section 9;
and

(c) where a decision has been taken with respect to an application,
the Commission’s decision in relation to the application,
including any conditions subject to which consent has been
granted.

(2) The register maintained under this section shall be available for
inspection by the public at all reasonable hours and may also be made
available electronically.

PART III
TREES NOT SUBJECT TO PART II

Application of Part III.

12. This Part applies to a tree that is not the subject of a Tree Preservation
Order under Part II.

Prohibition.

13.(1) A person shall not cut down or uproot a tree to which this Part
applies unless that person has−

(a) the written consent of the Commission and, where consent is
given subject to conditions, in accordance with those
conditions; or

(b) applied for consent under section 14 and has not received
notice–

(i) of the Commission’s decision; or

(ii) that his application is being considered,

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within 28 days beginning with the day the application for
consent is received by the Commission.

(2) A person who contravenes subsection (1) commits an offence and is
liable on summary conviction to a fine at level 4 on the standard scale.

Application for consent under Part III.

14.(1) An application for consent to cut down or uproot a tree to which this
Part applies shall be made to the Commission.

(2) An application under this section shall–

(a) be made in writing on a form provided by the Commission for
that purpose;

(b) include the particulars specified in the form;

(c) be accompanied by–

(i) a plan which identifies the tree to which the application
relates;

(ii) such information as is necessary to specify the work for
which consent is sought;

(iii) a statement of the applicant’s reasons for making the
application; and

(iv) appropriate evidence describing any structural damage to
property or in relation to tree health or safety, as
applicable.

Determination of applications for consent under section 14.

15.(1) An application for consent made under section 14 shall be
determined by the Commission who may–

(a) grant consent either unconditionally or subject to conditions; or

(b) refuse consent.

(2) Without prejudice to the generality of subsection (1)(a), the conditions
subject to which consent may be granted may include conditions with
respect to–

(a) the planting of one or more trees, including conditions about
how, where or when planting is to be done;
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(b) limiting the duration of the consent.

(3) The Commission shall notify the applicant of its decision by notice in
writing.

(4) Where consent is granted under subsection (1)(a) it shall be valid for a
period of one year beginning with the date of its grant.

(5) A grant of consent under subsection (1)(a) shall (except so far as the
consent otherwise provides) enure for the benefit of the land to which the
consent relates and of all persons for the time being interested in it.

PART IV
EXCEPTIONS, ETC.

Exceptions.

16.(1) Sections 8 and 13 shall not apply−

(a) to the cutting down, topping, lopping or uprooting of a tree–

(i) whose diameter does not exceed 75 millimetres;

(ii) which is dead;

(iii) where that work is urgently necessary to remove an
immediate risk of serious harm;

(iv) where that work is urgently necessary for security
purposes;

(v) so far as work is necessary to implement full planning
permission granted under the Town Planning Act 1999;

(b) to the removal of dead branches from a dead tree;

(c) to the cutting down or lopping of a tree in compliance with a
notice served under–

(i) section 255 of the Public Health Act; or

(ii) paragraph 5 of Schedule 3 to the Gibraltar Electricity
Authority Act 2003;

(d) to the cutting down of a tree in accordance with a permit issued
under section 49 of the Gibraltar Heritage Trust Act 1989;

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(e) to the cutting down or uprooting of a tree in compliance with
any notice or permission issued by or under, or any obligation
imposed by, any other legislation;

(f) in circumstances where section 359 of the Crimes Act 2011
applies; or

(g) to the cutting down, topping, lopping or uprooting of a tree,
group of trees or woodland situated on the land specified in the
Schedule and carried out in accordance with the written
authorisation of the Government.

(2) Where subparagraph (ii) or (iii) of subsection (1)(a) applies, notice in
writing shall be given to the Commission–

(a) in the case of works urgently necessary to remove an
immediate risk of serious harm, as soon as practicable after the
works become necessary;

(b) in any other case at least five working days prior to the date on
which the works are to be commenced.

(3) The notice referred to in subsection (2)(a) shall be accompanied by
appropriate evidence in order to prove, to the satisfaction of the
Commission, that the works were urgently necessary to remove an
immediate risk of serious harm.

(4) For the purpose of subsection (1)(a)(i)–

(a) where a tree has more than one stem at a point 1.5 metres
above the natural ground level its diameter shall be treated as
exceeding 75 millimetres if any stem when measured over its
bark at that point exceeds 75 millimetres; and

(b) in any other case, the diameter of a tree shall be ascertained by
measurement over the bark of the tree at a point 1.5 metres
above the natural ground level.

Replacement of trees.

17.(1) If any tree is cut down or uprooted–

(a) in contravention of section 8 or 13; or

(b) in any case where subparagraph (ii) or (iii) of section 16(1)(a)
applies,

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the Commission may serve a notice on the owner of the land to plant one or
more trees of an appropriate size and species within such period as may be
specified in the notice.

(2) For the purposes of subsection (1), the Commission may require the
owner of the land to plant one or more trees–

(a) at the same place, or on or near the land, on which the tree cut
down or uprooted stood; or

(b) on such other land and in such places as may be agreed
between the Commission and the owner of the land.

(3) A person who fails to comply with a notice served under subsection
(1) commits an offence and is liable on summary conviction to a fine at
level 3 on the standard scale.

(4) A court passing sentence under subsection (3) may, whether it imposes
a penalty or not, make an order that the defendant comply with the notice
issued under subsection (1).

Appeals.

18.(1) Where the Commission refuses an application for consent made
under section 9 or 14, or grants it subject to conditions, the applicant may by
notice in writing appeal to the Tribunal within 28 days of the date the
applicant is notified of the Commission’s decision.

(2) A person who has made an application under section 9 or 14 may also
appeal to the Tribunal if the Commission have not notified that person of
the Commission’s decision at the end of the period of 8 weeks beginning
with the date on which application was received by the Commission.

(3) Where subsection (2) applies, for the purposes of this section the
application shall be treated as if–

(a) it had been refused by the Commission; and

(b) notification of the Commission’s decision had been received
by the applicant at the end of the period of 8 weeks beginning
with the date the application was received by the Commission.

(4) Where the Commission makes a Tree Preservation Order under section
4, the owner or occupier of the land affected by the Order may appeal to the
Tribunal against the Order within 28 days of making the Order.

Environmental Protection (Trees)
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(5) Where the Commission has served a notice under section 7, the owner
of the land to which the notice relates may appeal to the Tribunal against the
notice within 14 days of the receipt of the notice.

(6) An appeal under this section shall–

(a) be made in the form provided by the Commission; and

(b) state clearly and precisely the full reasons for the appeal.

(7) On an appeal to the Tribunal made under subsection (1) or (2), the
Tribunal may–

(a) confirm or vary the decision of the Commission in whole or in
part;

(b) where consent has been refused by the Commission, direct that
consent be granted subject to such conditions, if any, as the
Tribunal may specify; or

(c) direct that any condition subject to which consent has been
granted by the Commission be deleted, modified or replaced by
such conditions as the Tribunal may specify.

(8) On an appeal to the Tribunal made under subsection (4), the Tribunal
may–

(a) confirm the decision of the Commission to make a Tree
Preservation Order; or

(b) vary or revoke the Tree Preservation Order.

(9) On an appeal to the Tribunal made under subsection (5), the Tribunal
may–

(a) confirm or vary the requirements of the notice; or

(b) revoke the notice.

(10) On an appeal under this section, the Tribunal shall, if either the
appellant or the Commission so desire, given each an opportunity of
appearing before and being heard by the Tribunal.

(11) The decision of the Tribunal on any appeal shall be final, and it shall
be the duty of the Commission and the appellant to comply with any
directions of the Tribunal given in respect of the appeal.

Right to enter any land.
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19.(1) A person duly authorised in writing by the Commission may enter
any land for the purpose of–

(a) surveying it in connection with making, varying or revoking a
Tree Preservation Order, including making an assessment of a
tree, group of trees or woodland;

(b) ascertaining whether an offence under section 8 or 13 has been
committed; or

(c) determining whether a notice under section 7 or 17 should be
served.

(2) Any right to enter by virtue of this section shall be exercised after
giving at least three days’ notice in writing to the owner and the occupier of
the relevant land.

(3) A person who wilfully obstructs a person acting in the exercise of a
right of entry under this section commits an offence and is liable on
summary conviction to a fine at level 3 on the standard scale.

Electronic communications.

20.(1) An application, notice or other document that is required or
permitted to be made or given under this Act to the Commission or the
Tribunal may be made or given by electronic communication in the form
approved by the Commission.

(2) Where an application is made under this Act by electronic
communication,–

(a) any communication between the Commission and the
applicant; or

(b) any notice or other document required or permitted to be given
by the Commission to the applicant,

may be made or given by electronic communication and the applicant shall
be taken to have agreed to the use of such communication for the purposes
of that application.

(3) Where an appeal is made under this Act by electronic
communication,–

(a) any communication between the Tribunal and the applicant; or

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(b) any notice or other document required or permitted to be given
by the Tribunal to the appellant,

may be made or given by electronic communication and the appellant shall
be taken to have agreed to the use of such communication for the purposes
of that appeal.

(4) Any application, notice, or other document made or submitted by
electronic communication must be–

(a) capable of being accessed by the recipient;

(b) legible in all material respects; and

(c) sufficiently permanent to be used for subsequent reference.

(5) In relation to the use of electronic communications for any purpose
which in accordance with this section is capable of being carried out
electronically any references in this Act to a map, plan, drawing or any other
document includes a reference to such document, or a copy of it, in
electronic form.

(6) In this section, “electronic communication” means a communication
transmitted (whether from one person to another, from one device to another
or from a person to a device or vice versa)–

(a) by means of an electronic communications network; or

(b) by other means but while in electronic form.

Power to make Regulations.

21. The Minister may make such Regulations as may be necessary for
carrying out the purposes of this Act and in particular–

(a) the form and manner of making an application under this Act
and the information required to be submitted in connection
with the application;

(b) for the purpose of further authorising or facilitating the use of
electronic communications or electronic storage for anything
required to be done, or which may be done, under this Act;

(c) the procedure to be followed in the making and consideration
of the application;

(d) prescribing fees to be paid on making such an application;

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(e) for regulating appeals under section 18;

(f) exempting any tree, group of trees, woodland, or any area of
Gibraltar, from the application of this Act.

Amendment of Schedule.

22. The Minister may by Order amend or vary the Schedule.

Governor’s constitutional responsibilities.

23.(1) Nothing in this Act or in any regulations made under this Act shall
derogate from the responsibility of the Governor under the Constitution for
defence, internal security or any other matter for which the Governor may
have responsibility under the Constitution.

(2) The Government shall consult the Governor in relation to any matter
for which the Governor has responsibility under the Constitution.

Amendment of the Town Planning Act 1999.

24. The Town Planning Act 1999 is amended by repealing section 38.

Transitional provision.

25. A Tree Preservation Order made under section 38 of the Town Planning
Act 1999 shall have effect as if it was made under this Act.

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SCHEDULE

Section 16(1)(g)

1. The area designated as a nature conservation area under section 18(1) of
the Nature Protection Act 1991.

2. The public gardens known as the Alameda Gardens.