Draft Internal Audit Report
Hertsmere Borough Council –
Tree Preservation Orders
16 November 2012
Issued to:
Polly Harris-Gorf – Head of Planning and Building Control
Mark Silverman – Policy and Transportation Manager
Sajida Bijle – Director of Resources
Report Status:
Draft Report – Private and Confidential
Reference:
M4110/12/003
Overall Assurance:
Substantial
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Tree Preservation Orders 2012/2013
INDEX
Section
Page
1. Executive
Summary
3
2. Assurance by Risk Area
4
3. Audit
Commentary
4
Appendix A – Management Action Plan
6
Appendix B - Definitions of Assurance and Recommendation Priorities
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1 EXECUTIVE
SUMMARY
Introduction
1.1 A review of Tree Preservation Orders (TPO) has been requested by the Director of
Resources at Hertsmere Borough Council (HBC). This will serve to provide
independent assurance to the Council that the making and administration of TPO’s is
compliant with the law.
1.2 The law on TPOs is in Part VIII of the Town and Country Planning Act 1990 and in the
Town and Country Planning (Trees) Regulations 1999, which came into force on 2
August 1999. The latter were subsequently amended by the Town and Country
Planning (Trees)(Amendment no. 2)(England) Regulations 2008. The latest Town and
Country Planning (Tree Preservation)(England) Regulations 2012 came into force in
April 2012.
1.3 A TPO is an order made by a local planning authority (LPA) in respect of trees or
woodlands. The principal effect of a TPO is to prohibit the cutting down, uprooting,
topping, lopping, wilful damage or wilful destruction of trees without the LPA's consent.
LPAs may make a TPO 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.
1.4 The Register of Tree Preservation Orders maintained by HBC indicates that 30 TPO’s
were made in 2010, two in 2011 and three in 2012 to date.
Overall Audit Opinion
1.5 Based on the work performed during this audit, we can provide overall
substantial
assurance that there is a largely sound system of control and that the register
complies in all material aspects with the legislation, but there are some minor
weaknesses, which may put a limited number of the system objectives at risk.
1.6 The audit opinion was formed from management assurances given in response to our
enquiries, plus examination of appropriate evidence relating to tree preservation
orders.
1.7 Please see definitions for the overall assurance levels at Appendix B, as well as the
Assurance by Risk Area below.
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Summary of Recommendations
1.8 We have made six recommendations, one classified as Medium and five as Merits
Attention, to strengthen the internal controls.
1.9 Please see the Management Action Plan at Appendix A for further detail.
Annual Governance Statement
1.10 This report provides a good level of assurance to support the Annual Governance
Statement.
2
ASSURANCE BY RISK AREA
2.1 Our specific objectives in undertaking this work, as per the Terms of Reference, were
to provide the Council with assurance on the adequacy and effectiveness of internal
controls, processes and records in place to mitigate risks in the following areas:
Risk Area
None
Limited
Moderate
Substantial
Full
Register of TPO’s (physical and
electronic records) – completeness,
timeliness, accuracy and validity of
the maintenance and administration
of the register in compliance with
legal requirements.
Making and confirmation of TPO’s
in compliance with legal
requirements and good practice as
published by the Department of
Communities and Local
Government.
Overall
2.2 See definitions for the above assurance levels at Appendix B.
3. AUDIT COMMENTARY
3.1 Paragraphs 3.2 to 3.19 have been included to provide additional commentary on the
agreed risk areas as per the Terms of Reference.
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The Council’s TPO Register – compliance with legislation and good practice
3.2 Internal Audit has been asked to comment on the existence and format of the TPO
register maintained under the Council’s statutory duties as the Local Planning
Authority (LPA), its availability for the public to view, and to confirm whether it complies
in all material respects with legislative requirements.
3.3 The law on TPOs is in Part VIII of the Town and Country Planning Act 1990 ('the Act')
and in the Town and Country Planning (Trees) Regulations 1999 ('the 1999
Regulations') which came into force on 2 August 1999. The ‘Tree Preservation Orders:
A guide to the Law and Good Practice’, or “Blue Book”, published in 2000, brings
together the Department of Communities and Local Government’s guidance and policy
advice on the subject of TPO’s. It is the latter that Internal Audit utilised as the basis
for its work on the TPO Register.
3.4 The preface to the “Blue Book” states that “…local planning authorities can run the
system in line with good administrative practice. Authorities are not required to follow
the advice given; the Guide imposes no new burdens on them. But for many
authorities the Guide is a useful point of reference which is relevant to their day-to-day
work.”
3.5 Internal Audit concurs with Planning management that the TPO Register is comprised
of a series of files for each individual TPO, containing details of the Order, subsequent
applications, appeals, correspondence, plans and other relevant documentation.
These are filed by TPO number going chronologically back to the 1960s, rather than
by address, which would be less practical as the same TPO can cover multiple
addresses. These TPO files are maintained in lockable cabinets within the Planning
team, but are available to view, as relevant and appropriate, should a request be made
concerning a particular TPO.
3.6 There is a ‘Green Folder’, entitled ‘Register of Tree Preservation Orders’, which is not
part of the statutory register, and which contains individual sheets headed ‘Hertsmere
Borough Council - Register of Tree Preservation Orders’. Each individual sheet
contains data on key milestones and dates, including the unique TPO number, the
date of making the order, objections received (28 days from the date of the notice) and
date of confirmation. ‘The Green Folder’ serves as a summary, or index, for the
individual TPO files described at paragraph 3.5, and has been provided to the public
when a request has been made to view the Council’s register. The ‘Green Folder’
should not be viewed as standing in isolation, nor should it be viewed as “the
Register”, despite the title on the folder and constituent sheets, as it is an integral part
of a wider system of files. A finding on the ‘Green Folder’ has been raised in the
attached Management Action Plan at Appendix A.
3.7 In addition to the above, the Planning System database (on Microsoft Access) is also
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used for internal purposes to maintain data on TPO’s. This electronic data duplicates
that held on the ‘Green Folder’ and the individual TPO files, but due to technological
and security limitations with the database, is not made available to view by the public.
It is understood that new case management software for the entire Planning and
Building Control Unit is being installed in 2013, and this may facilitate changes to the
way that the TPO register is made available to the public in the future.
3.8 Planning also maintain lever arch files, entitled ‘Register of Tree Preservation Orders
Applications’, which contain hard copies of all refusal and consent forms issued. These
files serve internal departmental administrative purposes, and do not constitute part of
the TPO Register.
3.9 Under paragraph 9.10 of the “Blue Book”, LPA’s are required to keep available for
public inspection a register of all section 211 notices. The Council maintains separate
lever arch files containing the Public Register (Section 211 notices), and these are not,
and should not, be considered part of the TPO Register. Trees in conservation areas
which are already protected by a TPO are subject to the normal TPO controls, but the
Town and Country Planning Act 1990 also makes special provision for trees in
conservation areas which are not the subject of a TPO. Under section 211 anyone
proposing to cut down or carry out work on a tree in a conservation area is required to
give the LPA six weeks' prior notice (a 'section 211 notice').
3.10 Internal Audit has concluded that the Council’s TPO register complies in all material
respects with the legislation and the “Blue Book”. Paragraphs 3.21 and 3.43 of the
“Blue Book” both indicate that the LPA must make a copy of the TPO available for
public inspection at the offices of the LPA, and it is noted that the Council makes these
available on request.
3.11 Paragraph 6.43 of the “Blue Book” states that the “… LPA are required to keep a
register of all applications for consent which must be made available to the public at all
reasonable hours. The register should include details of every application under the
TPO and the LPA's decision.” Paragraph 7.15 indicates that the “… LPA should, when
they receive an appeal decision, record the outcome on the public register which they
are required to keep.” This information is maintained on the individual TPO files, which
form part of the Council’s TPO Register.
Comparison of TPO Register with other Councils
3.12 Internal Audit enquiry of the Planning department at Welwyn Hatfield Borough Council
indicated that members of the public making enquires to view the TPO Register are
directed to the Council's website. Locations of TPOs have been entered on to the
Council's Geographical Information System (GIS) accessible through the Planning
pages on the Council's website. Searches can be performed using area maps, or
directly using the TPO number, if known.
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3.13 TPO files containing documentation linked to the individual Orders are not presently
available to view using the GIS system, but electronic scanned files exist on Welwyn
Hatfield Borough Council’s Planning system, which can be provided on request. Work
is in development to make electronic files available via the GIS system in the near
future. It was stated that TPO files will have all personal data removed, before these
are made available to the public due to the requirements of the Data Protection Act
1998.
3.14 Planning Management has stated that Hertsmere Borough Council’s tree officers, who
are shared with Aylesbury Vale District Council (AVDC), have advised that the
Council’s TPO Register is maintained in the same manner as that at AVDC i.e. a
series of files for each TPO containing details of the Order, subsequent applications
and appeals, etc.
3.15 A finding, for consideration, on making the TPO Register available electronically
available via the Council’s website has been raised in the attached Management
Action Plan at Appendix A.
Making and Confirming TPO’s
3.16 Internal Audit conducted detailed testing on a sample of four TPO’s to ensure that
these had been made and confirmed in compliance with legal requirements and good
practice as published by the Department of Communities and Local Government
(DCLG).
3.17 The testing identified one instance where an emergency TPO had been served before
a site visit had been undertaken. Internal Audit was requested to comment on the
validity of actions taken in this case, and whether it contravened legislation and best
practice.
3.18 The “Blue Book” states at paragraph 3.7 that ‘the LPA may in circumstances decide to
carry out the visit without entering the land. They may consider that the risk of felling
justifies the making of a TPO before they have been able to assess fully the amenity
value of the tree. This should not, however, prevent them from making a preliminary
judgement on whether a TPO would appear to be justified on amenity grounds, nor
from making a more considered assessment before the TPO is confirmed.'
3.19 The decision to serve an emergency TPO before a site visit was done, in this instance
did not contravene best practice as outlined by the DCLG.
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Appendix A - Management Action Plan
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No. Finding / Associated Risk
Priority
Recommendation
Management Response
Target Date
1.
Making the ‘Green Folder - Register of
Tree Preservation Orders’ available for
viewing by the public
The Council maintains a ‘Green Folder’,
Merits
Internal Audit recommends that
Responsible Officer:
Attention
entitled ‘Register of Tree Preservation
members of the public are clearly
Orders’, which contains individual sheets
informed as to the nature and
headed ‘Hertsmere Borough Council -
purpose of the ‘Green Folder’,
Register of Tree Preservation Orders’.
entitled ‘Register of Tree
Preservation Orders’, when
‘The Green Folder’ serves as a summary,
provided access as part a request
or index, for the individual TPO files
to view the Council’s TPO
comprising the TPO Register, and has
Register.
been provided to the public when a
request has been made to view the
The public should be made aware
Council’s register.
that, where required and
appropriate, they should request
As described at paragraph 3.6 in the main
access to the individual TPO files
body of the report, the ‘Green Folder’
for full documentation linked to an
should not be viewed as standing in
entry in the ‘Green Folder’.
isolation, nor should it be viewed as “the
Register”, despite the title on the folder
Planning should also give
and constituent sheets, as it is an integral
consideration to renaming the
part of a wider system of files.
‘Green Folder’ to avoid any
misinterpretation or
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No. Finding / Associated Risk
Priority
Recommendation
Management Response
Target Date
Associated risk
misunderstanding linked to the
impression that it is in fact the
The title of the folder and its contents may
TPO Register.
be misleading to members of the public,
who are provided with the ‘Green Folder’,
when making a request to view the TPO
Register, and may be unaware that the
TPO Register is in fact comprised of a
large number of individual files linked to
the entries in the ‘Green Folder’. This
may contribute to misunderstanding and
miscommunication with the public.
2.
Maintenance and administration of the
‘Green Folder - Register of Tree
Preservation Orders’
1. Use of correction fluid
Review of the ‘Green Folder’ identified
Merits
The officer responsible for
Responsible Officer:
that there were a number of historic
Attention
making hand written entries in the
entries that had been changed using
‘Green Folder’, entitled ‘Register
correction fluid. This has not been done
of Tree Preservation Orders’
since 2007.
should cross through errors made
when correcting information,
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No. Finding / Associated Risk
Priority
Recommendation
Management Response
Target Date
The use of correction fluid was
rather than apply correction fluid
particularly common in the 1980’s, and
to entries.
was considered a normal response to
error correction.
Internal Audit enquiry of Planning and
Human Resources indicated that only
three officers have been responsible for
maintenance of the ‘Green Folder’ and
the individual TPO files comprising the
TPO Register from 2005 to date. These
include the
from 2005 to January 2011, the
(later
) from
January 2011 to October 2011, and
from November
2011 to date.
2. Removal and duplication of pages
Review of the ‘Green Folder’ identified
Merits
Consideration should be given to
that one page had been replaced by a
Attention
making components of the TPO
photocopy when the folder had been
Register available to the public to
viewed by a member of the public, and
view electronically, e.g. via the
that there was a separate duplicate page
Council website. See
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No. Finding / Associated Risk
Priority
Recommendation
Management Response
Target Date
that had been produced as a result of a
recommendation three below.
page going missing previously and
subsequently being rediscovered.
3. Accuracy of entries (1)
Examination of the ‘Green Folder’ found
Merits
a) The officer responsible for
that there was an incorrect entry
Attention
making hand written entries in
supporting the date that the TPO was
the ‘Green Folder’, entitled
certified and the notice served. This had
‘Register of Tree Preservation
no bearing on the validity of the TPO
Orders’ should be reminded of
itself.
the importance of entering
details on the register
Review of the actual TPO on the
correctly.
individual TPO file confirmed that the date
should have been 11/8/2005, and not
b) Corrective action should be
11/8/2004. This was also confirmed
taken and the errors on the
through review of the Planning database
‘Green Folder’ should be
(Access), which had the correct date
adjusted, using the guidance
entered.
above so that the correction is
transparent.
This was identified as human error and is
considered to be an isolated historical
c) Periodic review of the ‘Green
instance, which had been completed by
Folder’ should be conducted
an officer that has since left the Council.
by an officer independent of its
maintenance as part of a
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quality control process to
4. Accuracy of entries (2)
ensure that it complies with
expected standards.
Internal Audit testing of a sample of four
TPO’s identified that two had Letters of
Confirmation whose dates did not
correspond with entries on the ‘Green
Folder’. This did not affect the validity of
the TPOs themselves.
Associated risks
Alterations or anomalies on documents
made available to the public to view can
lead to confusion on the part of anyone
requesting to view them. Impacts include
time and cost of responding to enquires
regarding alterations and reduced
confidence in the data held.
As the ‘Green Folder’ has been made
available to the public to view, the public
may not be able to place reliance on the
information presented therein. This may
affect decision making by external users
of the information, and impact on the
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Council’s accountability and reputation..
3.
Electronic or web-based TPO Register
The Council’s TPO Register is a paper
Merits
Consideration should be given to
Responsible Officer:
based system maintained in a number of
Attention
making the TPO Register
files and folders in lockable cabinets
available electronically through
within the Planning team.
the Council’s website in a similar
manner to planning applications.
Internal Audit enquiry of a neighbouring
authority (Welwyn Hatfield Borough
Council) indicated that they are in the
process of introducing an electronic, web-
based TPO Register accessible through
their Council website. Please see
paragraphs 3.12 to 3.15 in the main body
of the report for further detail.
Associated risk / opportunity
There is an opportunity to free up
valuable storage, and rationalise the
number of paper documents held by
placing TPO records online where they
are available to members of the public at
all times, including outside of normal
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office hours.
It is important to inject a note of caution to
this, in that records may need to be
cleansed of personal data that may lead
to an infringement of the Data Protection
Act 1998, prior to being made available to
the general public through the Council’s
website.
4.
Omissions of data from the Planning
database (Access)
Review of a sample of data extracted
Merits
a) Consideration should be given
Responsible Officer:
from the Planning database (Access)
Attention
to locking fields on the
identified two instances of missing data
Planning database (Acolaid),
from fields linked to individual TPO’s.
or the incorporation of a user
Both instances were over 10 years old.
prompt that asks for
confirmation that the action of
One TPO had an empty address field,
deletion is desired.
while the other did not have an Order
date.
b) Corrective action should be
taken on the identified missing
Internal Audit investigation found that
data, and consideration should
fields can be edited and potentially
be given to an examination of
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deleted in error. This was provided as an
the Planning database
explanation for the missing entries.
(Access) to identify the
number of missing data fields
The missing entries did not compromise
and populate these as
adequate cross-referencing to other TPO
necessary.
data sources, especially the individual
TPO file, and the missing data was
available on the ‘Green Folder’ and the
individual TPO file .
Associated risks
Reports generated from the Planning
database (Access) may be incomplete
and inaccurate, not serve the purpose
intended, and obtaining missing data from
paper files may be difficult and time-
consuming.
Data held electronically in respect of
TPO’s may be deleted in error.
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No. Finding / Associated Risk
Priority
Recommendation
Management Response
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5.
Making and Confirmation of TPO’s –
Completeness of the TPO
Internal Audit review of a sample of four
Medium
a) Officers preparing documents
Responsible Officer:
TPO files, all of which were found to be
and serving TPO’s should be
valid and correctly served, identified:
reminded to check all
document components that
a) One instance where notice of the TPO
form the TPO Order are
had been served, but a copy of
complete and have been
Schedule 1 had not been placed on
copied for the file.
the individual TPO file forming part of
the TPO Register. Discussion with the
b) The TPO checklist should be
did not
completed in all cases and
confirm that this was actually sent out.
should be redesigned to
However, the information on the
include the initials of the
schedule was itself clearly recorded on
officer that has checked the
the TPO plan and the TPO itself was
TPO.
valid. It was mentioned that a duplicate
schedule can be produced from the
c) A new section should also be
Planning System, however the one
added to indicate that all
created from the Planning database
component parts of the TPO
(Access) was incomplete and did not
Order have been sent and
provide full details of the tree subject
copied for the file.
to a TPO.
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b) The same file does not contain a TPO
Checklist to indicate the date and
method of delivery of the TPO.
c) The Checklist does not currently
contain a section to support the
separate component documents that
form the TPO.
Risk
Tree Preservation Orders have the
potential to be invalid due to incorrect
process being followed.
6.
Making and Confirmation of TPO’s –
Documenting Conversations
Internal Audit has identified that
Merits
A suitable method of
Responsible Officer:
conversations between officers and
Attention
documenting or recording
members of the public are not routinely
conversations concerning TPO’s
documented, even for contentious or
between officers and customers
controversial TPO’s, with records not
should be explored and put in
maintained and entered on the Planning
practice, e.g. hard copy notes or
database (Access) or recorded using any
narrative added on the Planning
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other method.
system to support conversations.
It was noted that the advice generally
given when a call is received from a
customer, is to ‘put it in writing’.
Risk
Adequate records may not exist to
support telephone conversation between
members of the public and the Council,
and no source of reference will exist if
needed at a later date, to support advice
or information given to the public by the
Council.
There may be an impact on the Council’s
reputation and staff morale if allegations
are made that incorrect information or
advice was given to a member of the
public.
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Appendix B - Definitions of Assurance and Recommendation Priorities
Tree Preservation Orders 2012/2013
Levels of assurance
Full Assurance
There is a sound system of control designed to achieve the system objectives and manage
the risks to achieving those objectives. No weaknesses have been identified.
Substantial Assurance
Whilst there is a largely sound system of control, there are some minor weaknesses, which
may put a limited number of the system objectives at risk.
Moderate Assurance
Whilst there is basically a sound system of control, there are some areas of weakness, which
may put some of the system objectives at risk.
Limited Assurance
There are significant weaknesses in key control areas, which put the system objectives at
risk.
No Assurance
Control is weak, leaving the system open to material error or abuse.
Priority of recommendations
High
There is a fundamental weakness, which presents material risk to the objectives and requires
urgent attention by management.
Medium
There is a significant weakness, whose impact or frequency presents a risk which needs to be
addressed by management.
Merits Attention
There is no significant weakness, but the finding merits attention by management.
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