Tree protection brief guidance

Including... Tree Preservation Orders, Conservation Areas, Planning Conditions, Felling Licences

Many trees in the UK are legally protected, typically by Tree Preservation Orders, Conservation Areas, Planning Conditions, Felling Licences and/or Restrictive Covenants. Anyone wishing to undertake work to a tree (for example a tree owner or tree contractor/arborist/tree surgeon) is advised to make suitable enquiries as to the legal status of the tree and any protection afforded to it in order to protect themselves and others from possible criminal prosecutions. Throughout this Guide the term tree (singular) could equally be applied to trees (plural).

1. Tree Preservation Orders (TPOs)

General

TPOs are administered by Local Planning Authorities (LPAs, normally planning departments of local councils) and National Park Authority (NPA, where applicable).

The LPA or NPA (hereinafter the LPA) should be able to advise, over the phone within 48 hours, if there is a TPO in place at any location within its administrative area. A TPO is placed on a tree where it is considered expedient to do so and where it offers, primarily, visual amenity to the area.

Applications

Anyone wishing to undertake work to a TPOd tree must first make an application to the LPA for those works. An application is required for any work not covered by an exemption (see exemptions section following). The standard application form supplied by the LPA or available from the Planning Portal website (www.planningportal.gov.uk) must be used for this purpose clearly identifying the tree, the work(s) and reason(s) for the proposed work.

Where it is alleged a tree is dangerous or where a defect is present that allegedly may affect the safety of the tree evidence must be provided by a competent arboriculturist. Where tree related subsidence is alleged a structural engineer or chartered surveyor’s report will normally be required.

LPAs usually acknowledge receipt of an application by return and must place a copy on a public register for anyone to see, it may also publicise it to the wider community.

The LPA should then determine the application within 8 weeks, if it does not then an appeal can be made for non-determination but this is likely to be a long winded process and it is usually better to approach the LPA direct and ask for a determination. However, if the LPA does not respond the works cannot proceed.

The possible determinations are:

Refusal – the LPA will state the grounds for refusal. The applicant can appeal to the Secretary of State, usually the appeal must be within 28 days of the determination
Consent with no conditions – either in whole or in part (e.g. an application for a 30% crown reduction is permitted but only to 15%. The applicant can appeal for the other 15%)
Consent with conditions – as above, with duration conditions e.g. consent valid for 2 years, work quality conditions e.g. in accordance with good arboricultural practice such as BS 3998, replacement planting conditions e.g. a suitable replacement to be approved by the LPA and planted during the next available planting season, etc. An appeal maybe made against any condition imposed.

NB: Most consents will be subject to some form of condition.

All appeals are handled by the Planning Inspectorate and will normally be dealt with on the basis of the original application and the information provided in that application. Where it is anticipated that consent is likely not to be granted or the application may be controversial it becomes important to ensure that professional advice is sought and submitted as part of the application as there may be limited opportunity to produce it at a later date. The majority of appeals will be dealt with as written representations (a ‘fast-track’ procedure) although either party can request a hearing or public local inquiry.

Penalties

Anyone who cuts down, uproots, tops, lops (which can include unauthorised pruning even if it accords with good arboricultural practice), wilfully damages or wilfully destroys a tree subject to a TPO without permission is guilty of an offence.

Serious financial penalties can be, and have been, incurred for contraventions including fines of up to £20,000 for the cutting down of a tree (wilful destruction), along with a requirement to replacement plant, or up to £2,500 for the lopping (pruning) of a tree (wilful damage).

2. Conservation Areas (CAs)

General

As with TPOs, CAs are administered by the LPA. CAs are usually designated around listed buildings or sites of special architectural or historical interest and include all trees (75mm diameter or greater measured at 1.5m above ground level) regardless of species, as they may contribute to the landscape character or setting of the area.

Notifications

Anyone wishing to undertake work to a tree in a CA must serve notice on the LPA 6 weeks prior to undertaking those works. A notice (often called a section 211 notice) is required for any works other than those covered by an exemption (see exemptions section following). The notice must be in writing and use of the standard application form (see section 1 TPOs) is recommended for this purpose but is not obligatory – in all instances the notification must clearly identify the tree and the work(s). Information regarding the reasons for the proposals and the ownership of the tree is useful but not obligatory.

LPAs should acknowledge receipt of the notice, state the 6 week expiry date and place it on a public register. Again the LPA may choose to publicise it to the wider community.

Upon receipt of a notice LPAs can:

make the tree concerned the subject of a TPO within the 6 weeks to prevent the proposed works being undertaken. A TPO may be made at any time after the expiry of the 6 week notice period but the tree would be unprotected between the expiry date of the notice and the date the TPO was served. If a TPO is made as a result of a CA notification anyone wishing to undertake work to the tree must apply as described in the TPO section above
not make the tree concerned the subject of a TPO and allow the 6 week notification period to expire thereby allowing the works to proceed. In this case the works notified may be carried out within a 2 year time period. It would be an offence to undertake the works after the 2 year period without serving a new 6-week notification and waiting for the 6 weeks. It is advisable to check that the LPA agrees the 6 week period has expired and that a TPO has not been made, ideally by fax or email but if by telephone, note the date and time of the conversation and the name of the officer with whom the conversation was made
not make the tree concerned the subject of a TPO and advise the contractor the works can proceed. In this case the 2 year time period applies as above
negotiate with the notifier (for example if they are prepared to accept some works but not the full extent within the notice). If the notifier is prepared to negotiate and agrees to revise the works they must formally withdraw the notice and submit a new one detailing revised works.

The LPA cannot refuse consent to a notice nor grant conditional consent, e.g. replacement tree planting (the CA notice is not the same as a TPO application and cannot be treated as such).

Penalties

Serious financial penalties can be incurred for unauthorised works to a tree within a CA similar to those which can be incurred for a TPOd tree (see above).

For further information on TPOs and CAs see the following website at: http://www.communities.gov.uk/planningandbuilding/planning/treeshighhedges/trees/

3. Planning Conditions

General

Planning conditions are often used by LPAs as a means of securing the retention of trees, hedgerows and other landscape features on sites where building developments will result from planning permission being granted. There is a general acceptance that, unless clearly stated otherwise, a planning condition in relation to trees, hedgerows and landscape features is valid for a maximum period of 10 years and probably only enforceable in most instances for 5 years.

It follows that if it is proposed to retain trees long term at a site then TPOs should be used for this purpose rather than planning conditions.

LPAs may be reluctant to confirm the presence of planning conditions at a site as it often involves trawling the planning files because comprehensive records may not be kept. If valid planning conditions are in place anyone wishing to undertake work to trees shown as part of the planning condition must ensure they liaise with the LPA and obtain any necessary consents.

4. Felling Licences

General

Felling Licences are administered by the Forestry Commission (FC) under the Forestry Act 1967. A felling licence may be needed where the volume of the tree or total volume of the trees to be felled exceed 5 cubic metres of timber (roughly one very large broadleaf or 5 large conifers). Generally private domestic gardens, churchyards, parks and other areas of public open space are exempt from felling licence regulations, (see also exemptions section following).

Obtaining a ‘felling licence’

Where consent is needed to fell a tree(s) containing more than 5 cubic metres of timber an application must be made to the local FC conservancy which will consider the granting of a felling licence or approval under a Dedication Scheme.

For further information on felling licences see ‘Tree Felling ‐ getting permission’ (www.forestry.gov.uk)

5. Sites of Special Scientific Interest (SSSI)

SSSIs are designed by the Statutory Nature Conservation Organisation (SNCO) for each country of the United Kingdom for particular wildlife of geological reasons and cover approximately 7% of the UK land area. Each SSSI will have a management plan and a list of operations requiring the SNCOs consent prior to carrying out works. Failure to secure agreement or following the conditions applied will cause an offence to be committed.

Any activity that recklessly or intentionally harms the SSSI or its flora or fauna will be an offence liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to an unlimited fine.

6. Restrictive Covenants

General

Covenants or other restrictions in the title of a property or conditions in a lease may require the consent of a third party prior to carrying out some sorts of tree work, including removing trees and hedges. This may be the case even if TPO, CA and felling licence regulations do not apply. It may be advisable to consult a solicitor.

Restrictive covenants are in effect a form of private planning control: they are restrictions on the development or use of land, enforceable by one landowner against another. Subject to various rules (in particular, they must be negative or “restrictive” in their effect) they will still apply after changes in land ownership.

For example, an estate of houses may be subjected to restrictive covenants, designed to protect the look and amenity of the estate – e.g. that front gardens remain unfenced, or that the parking of caravans is not allowed.

7. Exemptions

Exemptions allow certain works to a tree to be carried out without notice or application to either the Local Authority or the Forestry Commission. These may be based upon size or condition. Works to a tree that is dead, dying³ or dangerous are exempt from the requirement to apply or notify the relevant authority, although it is recognised as good practice to inform the authority. Where a protected tree is imminently dangerous, the minimum work necessary to abate the danger may be undertaken without reference to the relevant authority, any further work requiring an application or notification as appropriate. A protected fruit tree may be pruned without consent where the pruning is undertaken for the benefit of fruit production and is in accordance with good horticultural practice.

Felling under an exemption normally requires the planting of a replacement tree of the same type and in the same place unless the relevant authority formally waives this requirement.

Any person undertaking work to a protected tree under an exemption should carefully ensure that the exemption applies: if challenged by the relevant authority the evidential burden is upon the tree worker to demonstrate why the exemption applies. This could be done, for example, by providing evidence of the size and/or condition of the tree in the form of photographs, an expert’s report, or other documentation. If an exemption does not apply it is the tree worker’s responsibility to show that the necessary consents have been obtained: failure to be able to do so could lead to criminal prosecution. In some circumstances authorities will prosecute others (as well as the tree worker) such as the tree worker’s employer, agent or the land owner.

Please note this brief guide should not be taken as a definitive interpretation of the law as it affects trees but is intended purely to provide general guidance. When planning work to protected trees it is advisable to seek expert advice. This advice may not be wholly applicable outside England.

Footnotes:

*The ‘area order’ covers only those trees present at the time the order was made, unless they are replacement trees
The ‘woodland order’ covers all trees present on the site and often includes the understorey
Note the ‘dying’ exemption does not apply in Scotland

Last Modified 27 November 2012

This is one of a series of technical advice guides from

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