Tree Preservation Orders – Not to be trifled with!

Added on by Becket Chambers

Tree Preservation Orders are a statutory mechanism by which trees, groups of trees or woodland can be protected. For some time, these have been a means for a Local Planning Authority to maintain the nation’s arboreal diversity in the face of an increasing demand for housing and corresponding boom in developments. As this demand for housing gathers pace as we enter the second decade of the 21st century more and more developers and homeowners are coming into conflict with the system which is designed to protect our natural environment. In this article I shall give a brief overview of the law and procedures surrounding Tree Preservation Orders and, while it is not designed to be a comprehensive guide to this area of law, I shall attempt to address some of the practical questions facing those with issues stemming from Tree Preservation Orders.

 

What is A Tree Preservation Order?

 

A Tree Preservation Order (hereinafter “TPO”) is a written order made by Local Planning Authorities (hereinafter “LPA”) to protect trees. The effect of these orders, in broad terms, is that once such an order is made in respect of a tree it becomes a criminal offence to carry out many kinds of tree maintenance or destroy or damage the tree without the permission of the relevant LPA, subject to certain exemptions. Such an offence can be tried in either the Magistrates Court or the Crown Court and anybody found guilty of such an offence can be ordered to pay substantial fines.

A simple online search of the government website will show the trees subject to TPOs in your postcode area and it is advisable to always consult this before taking any steps in respect of a tree as ignorance of the existence of the TPO is no defence to the offence.

 

The Legal Framework

 

TPOs are governed largely by the Town and Country Planning Act 1990 (which sets out the offence of contravening a Tree Preservation Order) and the Town and Country Planning (Tree Preservation) (England) Regulations 2012 (which set out the logistical processes for managing or challenging TPOs). The interplay between these two pieces of legislation can be challenging to unpick, so I will now outline the main provisions for easy reference.

 

The power of the LPA to make TPOs is found in s.198(1) of the Town and Country Planning Act 1990:

 

  • If it appears to a local planning authority that it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area, they may for that purpose make an order with respect to such trees, groups of trees or woodlands as may be specified in the order.

 

Regulation 13 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012 (mirrored in s.202C(1) of Town and Country Planning Act 1990) lists the prohibited activities that apply to trees that enjoy the protection of a TPO without the written permission of the relevant LPA:

“No person shall

(a) cut down;

(b) top;

(c) lop;

(d) uproot;

(e) wilfully damage; or

(f) wilfully destroy,

 

      any tree to which an order relates.”

 

s.210 of the Town and Country Planning Act 1990 then makes clear that any contravention of such an order will be a criminal offence which can result in a fine:

 

  • If any person, in contravention ofa tree preservation order or tree preservation regulations

 

(a)cuts down, uproots or wilfully destroys a tree, or

(b)wilfully damages, tops or lops a tree in such a manner as to be likely to    destroy it, or

(c)causes or permits the carrying out of any of the activities in paragraph (a) or (b),

 

he shall be guilty of an offence.

 

  • A person guilty of an offence under subsection (1) shall be liableon summary conviction, or on conviction on indictment, to a fine.

 

Consequences of an offence

 

In considering the amount of any fine payable for contravention of a TPO, s.210(3) states that the Court shall “have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.” The effect of this is not to be underestimated. Recent case law has shown that Courts will take a firm and punitive stance in their interpretation of this and will make use of the Proceeds of Crime Act 2002 to reinforce the financial penalty. For example, anybody who commits an offence under the act with the result that the value of his own property increases, can be made to pay the amount of this increase.

 

In the case of Davey [2013] EWCA Crim 1662 the Defendant, convicted of an offence under s.210(1), was ordered to pay both a substantial fine of £75,000 and was also made subject to a Confiscation Order under the Proceeds of Crime Act for the consequent increase in the value of his own property as a result of the contravention, which amounted to a further £50,000. A similar case was seen in 2019 where the Defendant was ordered to pay a further £21,750, on top of a fine of £1200, to reflect the increase in the value of his own property following his lopping of a tree protected by a TPO.

 

Exemptions

 

There are however a number of exceptions that are set out in regulation 14 of the Tree Preservation Regulations referred to above. These exceptions are numerous and detailed so I have picked out below the ones which will be the most common in day-to-day dealings with TPOs. In short, nothing in regulation 13 will prevent the cutting down, topping, lopping or uprooting of a tree if:

 

  • The tree is dead.
  • The work is needed to comply with an obligation under an act of Parliament.
  • The work is required to abate a nuisance.
  • The work is limited to the removal of dead branches from a living tree.
  • The work is urgently required to remove an immediate risk of serious harm.
  • The work amounts to the pruning, in accordance with good horticultural practice, of any tree cultivated for the production of fruit.
  • The work is needed to implement a planning permission.

 

If, however, an individual wishes to undertake any work on a tree that is subject to a TPO which does not fall under the exceptions set out above, regulation 16 provides for applications for consent from the LPA. The relevant form for the application can be found on the website of the relevant LPA but should include:

 

  • A plan which identifies the tree or trees to which the application relates;
  • Such information as is necessary to specify the work for which consent is sought;
  • A statement of the applicant’s reasons for making the application; and
  • Appropriate evidence describing any structural damage to property or in relation to tree health or safety, as applicable.

 

Consent can be either conditional or unconditional. A common condition of consent would be, for example, the planting of replacement trees.

 

Objections to the making of a TPO

 

Before the confirming of a TPO, the LPA has a duty under regulation 5 to, as soon as practicable after the making of the order,

 

  1. a) serve on the persons interested in the land affected by the order –

(i) a copy of the order; and

(ii) a notice containing the particulars specified in paragraph (2);

(b) make a copy of the order available for public inspection

 

so that objections can be made under regulation 6. Paragraph 2 sets out the required particulars required in the notice:

(2) The particulars mentioned in paragraph (1)(a)(ii) are –

(a) the reasons for making the order;

(b) a statement that objections or other representations with respect to any trees, groups of trees or woodlands specified in the order may be made to the authority in accordance with regulation 6;

(c) the date, being at least 28 days after the date of the notice, by which any objection or representation must be received by the authority; and

(d) a copy of regulation 6.

 

As such, once the LPA has served the notice anybody wishing to make objections to the confirming of the TPO has at least 28 days, or longer period as specified by the LPA, to make their objections in writing and stating the reasons for any objection.

 

 

Final Thoughts

 

This article has considered in general terms the law as it applies to TPOs but does not cover every statutory provision and those which apply will depend on the specific facts of the case. Hopefully I have emphasised that TPOs are something which are ignored at one’s peril. The financial consequences of any contravention can be substantial and great care should be taken when considering whether or not to have work done to a tree. Best practice would include the following steps:

  • Always check whether a tree is subject to a TPO.
  • Always check whether the work to be done is a prohibited activity.
  • Always check whether there is an applicable exemption.
  • Always maintain transparency and honesty with the LPA in any dealings with them regarding a TPO. In this instance it is NOT easier to seek forgiveness than permission!

 

For any enquiries in relation to TPO disputes please do not hesitate to contact the clerks.