Long term tree management secured by planning agreement

A tree management plan secured by a section 106 agreement does something a planning condition cannot: it binds a named party to spend money on maintenance for decades, and it survives every sale of the land. That is why councils increasingly move landscape and tree management out of the condition schedule and into the agreement, particularly on schemes where biodiversity net gain has already introduced a 30 year commitment.

For a developer the practical question is what the obligation actually commits you to, who inherits it, and how much it costs to fund.

Why a condition is not enough for long term management

Conditions are good at controlling construction. They are poor at requiring positive action years later.

Three limits explain it. A condition cannot require the payment of money, so it cannot fund maintenance. A condition is enforced by breach of condition notice or enforcement notice, and the practical difficulty of serving one on a residents management company 15 years after occupation is obvious. And the enforcement time limit constrains how long the council can act.

A planning obligation under section 106 of the Town and Country Planning Act 1990 does none of those things badly. It binds the land, it binds successors in title, it can require payments, and it is registered as a local land charge so it appears on searches.

The obligation still has to meet the three statutory tests in regulation 122 of the Community Infrastructure Levy Regulations 2010. It must be necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind. A management obligation over trees that the scheme retains or plants satisfies those tests without difficulty. An obligation to maintain woodland elsewhere in the district does not.

What the management plan should contain

The agreement should not contain the plan. It should require a plan to be submitted and approved, then require compliance with the approved plan. That keeps the detail out of a deed that is hard to vary.

A workable plan covers:

1. A schedule of every retained and proposed tree, cross-referenced to the Tree Survey reference numbers and the approved planting drawing.
2. The maintenance operations by year: watering, weed control, formative pruning, stake and tie inspection, mulching.
3. Inspection frequency and who carries it out, with a qualification requirement.
4. Replacement standards, including species, size, and the season in which replacement takes place.
5. The trigger for intervention, expressed as a condition threshold rather than a subjective judgement.
6. Reporting to the council, with dates and a named recipient.

Where the site also carries a biodiversity gain plan, align the two documents. The habitat management and monitoring requirements under the Environment Act 2021 run for 30 years and are prepared by a competent person, so it is far simpler to have one plan covering habitats and trees than two on different cycles. A Biodiversity Net Gain Assessment must be produced by someone competent to run the statutory metric, and an AI-assisted draft supports that work rather than replacing it.

Establishment periods and replacement obligations

Planting fails. Any obligation that assumes otherwise will be breached within three seasons.

The standard approach is a defined establishment period during which any tree that dies, is removed or becomes seriously damaged is replaced in the next planting season with a specimen of the same size and species. Five years is the common period for structural planting, and BS 8545 describes the process of taking a tree from nursery to independence in the landscape over a comparable timescale.

Two refinements are worth negotiating.

Ask for a species substitution mechanism. Ash dieback has already made rigid species clauses unworkable on many sites, and a clause allowing substitution with the council's written agreement costs nothing to include and a great deal to omit.

Ask for the replacement obligation to end at the close of the establishment period, with longer term management continuing on a maintenance rather than a replacement basis. An open-ended replacement obligation over 30 years is disproportionate and rarely survives negotiation once the point is raised.

Who holds the obligation once the site is sold

Section 106 obligations bind successors in title, so the burden passes with the land automatically. That is the strength of the mechanism and the source of most of the arguments.

On a housing scheme the usual structure transfers the landscaped areas to a management company at practical completion, with the company taking on the obligation by deed. The developer normally seeks a release once the transfer has happened and the establishment period has been served.

Two points to negotiate before signature. Make sure the agreement permits a release on transfer to a body with the resources to perform, rather than leaving the developer liable indefinitely. And make sure plot purchasers are excluded from the obligation, because an agreement that binds every individual homeowner makes conveyancing miserable and achieves nothing.

Where areas are to be adopted by the council or a parish, the obligation should fall away on adoption and be replaced by a commuted payment.

Funding through service charge or commuted sum

Maintenance costs money for as long as the obligation runs, and the funding mechanism has to match the tenure.

A service charge levied by the management company is the usual route for privately managed open space. The estate rentcharge or management company structure needs to be in place before the first plot is sold, and the budget should be built from the management plan rather than from a round figure.

A commuted sum is the route where the council or another body takes over the land. Authorities calculate these on published formulae covering a set number of years of maintenance, and the figure varies widely between authorities. Ask for the formula and the assumptions early, because a commuted sum for structural tree planting on a large scheme is a real number in an appraisal.

An endowment fund is occasionally used on large schemes where a trust holds the land. It is expensive to set up and it is the only structure that survives a management company failing.

Monitoring and enforcement in practice

Local planning authorities may charge a monitoring fee in connection with planning obligations, a power confirmed by the Levelling-up and Regeneration Act 2023. Expect a fee proportionate to the number of obligations and the length of the monitoring period.

Enforcement of a positive obligation runs through section 106 itself. The authority may seek an injunction, or enter the land, carry out the works and recover the cost from the person against whom the obligation is enforceable. In practice councils use correspondence and the threat of the latter.

The realistic risk on a residential estate is not a dramatic enforcement action. It is a management company that reduces the maintenance budget after year six, an inspection regime that quietly stops, and a council that discovers the position when residents complain about dead trees. Building reporting into the plan, with a named officer and a date, is what prevents that.

Drafting points that prevent later disputes

Five clauses repay the time spent on them.

Define the approval mechanism precisely. Say who submits, who approves, what happens if the council does not respond, and whether approval can be deemed.

Include a variation mechanism inside the agreement so that the plan can be updated without a deed of variation. Section 106A allows modification after five years, but that is a slow route for a routine change.

Set trigger points on events you control. First occupation is a better trigger than a calendar date, and practical completion of a phase is better than completion of the whole scheme.

Deal with force majeure and disease honestly, so that an obligation does not become impossible to perform.

And tie the whole thing to the approved Landscape Strategy and, where relevant, the Green Infrastructure Plan, by drawing number and revision. Agreements that refer to documents by description rather than by number are the ones that generate disputes.

Enter your postcode on PlanScope to see which landscape and ecology documents your scheme is likely to need.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.