BS 5837:2012 – is it fit to protect trees in the current legal context?

The views below and mine and mine alone. I am a professional within the industry of arboriculture and I do not pretend to know everything or even close. Therefore, please do not take my words as if they are fact. You’re entitled to disagree, to any degree – insofar as the disagreement is reasonable. The hyperlinks are for ease to you the reader (please click them). You may find a previous blog post or two of mine useful, as context, before reading this. I have kept the below as brief as I consider possible that will still provide the necessary degree of context and explanation to demonstrate my opinions.

Scope of this post

This post does not dissect or scrutinise the technical elements of BS 5837:2012 Trees in relation to design, demolition and construction – Recommendations. This post does analyse whether this standard is fit for purpose, in the current legal context.

A background to British Standards

British Standards (hereafter ‘standards’) are published by the BSI Group, an organisation that operates under Royal Charter with the defined purpose of producing and publishing standards and providing related services for the ultimate betterment of industry – specifically, “to provide a reliable basis on which common expectations can be shared regarding specific characteristics of a product, service or process“. The key is therefore in the name: standardisation (which facilitates replicability). Adherence to a standard is voluntary.

Focussing on standards, the Royal Charter permits the BSI Group to “set up, sell and distribute standards of quality for goods, services, and management systems and prepare and promote the general adoption of British and international standards and schedules“. Periodically, published standards must be revised, altered, and amended “as experience and circumstances may require“.

BSI Group royal charter snip
The header and introduction of the Royal Charter for the BSI Group.

How standards are made

Standards are developed in collaboration between representatives of the relevant organisations associated with the scope and objective of the standard, adhering to – and being the only standard that must be adhered to (i.e. adherence is not voluntary) – the standard for producing new standards (BS 0:2016 A standard for standards – Principles of standardization).

Development is the responsibility of the relevant technical committee (e.g. B/213 for trees), which will normally oversee more than one standard. The technical committee is comprised of relevant organisations, companies, and individuals that fairly represent the range of professions affected by the standards it oversees. Within the technical committee, there are working groups that will focus on more detailed elements (e.g. the development of a single standard or aspects of it). The technical committee will therefore develop a draft standard that they will then publish for public consultation (a ‘draft for public comment’ or ‘DPC’), which will last for a minimum of 60 days.

BS 5837 Technical committee trees B213 construction
The B/213 technical committee page on the BSI Group website.

Following consultation, the feedback will be collated, analysed by the technical committee, and modifications made to the standard so that it is then published – or, in some cases, work is halted, due to significant concerns over the contents of the draft standard. The decision is down to the consensus of the technical committee

Typically, the production of a standard takes 18 months. Throughout, the operations of the technical committee must be transparent and defensible. The result should be a standard that is desirable, practical, and authoritative, provides no exclusive benefit to any party, serves the needs of the relevant community, and is consistent with regulations and legal principles established at the time of publication.

How standards are reviewed

Published standards must be maintained, in order to remain relevant (and for the BSI Group to adhere to its responsibilities as provided by Royal Charter). Therefore, all standards must be reviewed at least every five years, which can be initiated by the BSI Group or the technical committee. The review is undertaken by the technical committee responsible for the standard. Public consultation remains necessary, for the review of a standard. In some cases, the review may result in the standard being withdrawn.

Trees and construction – the standard

The standard for trees in the context of construction (encompassing all RIBA stages) is BS 5837:2012 Trees in relation to design, demolition and construction – Recommendations (hereafter ‘BS 5837’). This standard replaced the 2005 version. Its purpose is to provide “recommendations relating to tree care, with a view to achieving a harmonious and sustainable relationship between new construction/existing structures and their surrounding trees“. To this end, it sets out the recommended process through which trees should be managed in the context of construction, which includes outside of the planning process (e.g. if building something under permitted development). However, it is principally used as part of the planning process where trees are being managed on or adjacent to construction sites where planning permission is required.

bs58372012 front page
The front cover of BS 5837.

BS 5837 – legal developments since its publication

Since the time of the publication of BS 5837 in April 2012, there have been many important legal developments. These include but may not be limited to:

Implications for BS 5837 relevancy

Of these three legal developments, the NPPF is the crucial development, because it states at paragraph 47 that planning applications must (in 99% of cases) be determined in accordance with the relevant planning policies, which includes at national, regional, and neighbourhood level, in addition to the core that is determining applications against local planning policies.

BS 5837, in its role within the planning process (excluding permitted developments) as a standard document, does not make reference to this crucial element (e.g. there is no reference in the Figure 1 flowchart to consulting planning policy). The first major pit-stop for managing trees in the context of development is relevant planning policy that will give a valuable indication of what is and is not acceptable, in planning terms. Therefore, BS 5837 is not fully fit for purpose, in this regard.

The NPPF also states at paragraph 54 that “local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations“, and at paragraph 55 “should be kept to a minimum and only imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects“. For this reason, the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 refined the approach to conditions insofar as local planning authorities must confirm the details of pre-commencement conditions with the applicant prior to imposing the conditions upon them. Specifically, the manner in which Arboricultural Impact Assessments and Arboricultural Method Statements apply within the current framework of BS 5837 now may routinely differ in practice from what is recommended in theory.

These reasons collectively have a significant material effect upon the manner in which trees should be managed and considered, as part of the planning process. BS 5837 in its current form does not consider these effects and therefore it does not “provide a reliable basis on which common expectations can be shared regarding specific characteristics of a product, service or process“.

local plan policy trees excerpt redbridge
An excerpt of a local planning policy that requires trees to be protected should they be retained.

So what?

BS 5837 was reviewed in 2017, according to the BSI Group. In this context, it is not now until 2022 that it must be reviewed. Indeed, it can be reviewed before then though this will arise probably only following concern being raised over an insufficient scope.

My opinion is that BS 5837 cannot ‘wait’ another five years before being reviewed, becuase assuming it takes 18 months to produce a new version of BS 5837 then it will not be until 2023/4 that BS 5837 accounts for the significant changes in the planning process. In this context, BS 5837 will not “provide a reliable basis” for over half a decade from now during which time development is still ongoing and ideally should be speeding up to meet government housing targets.

BS 5837:2012 – is it fit to protect trees in the current legal context?

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