Tree Preservation Orders (“TPO”) provide statutory protection for trees, groups of trees or woodlands. Such an order prohibits the cutting down, uprooting, topping, lopping, wilful damage, or wilful destruction of trees without the local planning authority's consent.
However, what many people will not know is that an individual commits a criminal offence, and consequently could obtain a criminal record together with the applicable penalties, if they carry out a prohibited activity to a protected tree. Unfortunately, the general motto that ‘ignorance is bliss’ is not an applicable defence in law, as these matters are offences of strict liability thus an individual could still be held accountable even if they were not aware, or had direct knowledge, that the TPO exists.
It is therefore imperative that individuals enquire and ascertain the legal status of any trees, and if necessary obtain the relevant consent, if they are considering carrying out any works to tree(s) to avoid inadvertently committing a criminal offence.
This article provides information in respect of how to challenge the creation of a TPO, how to obtain consent to carry out prohibited works to trees and the potential offences that an individual can commit in respect of undertaking prohibited activities to a protected tree without consent.
Challenging the Creation of a Tree Preservation Order
The local planning authority has the discretionary authority to create a provisional TPO where it appears that the safeguarding of particular trees is in the interest of amenity or it is expedient to preserve the trees by making such a TPO.
Upon creation of a TPO, the local planning authority is required to serve a copy of the provisional (otherwise referred to as ‘interim’) order on any individual ‘interested’ in the land affected by the order. This is to ensure that individuals interested in the land are provided with the opportunity to make representations and/or objections to any proposed TPO. Such representations must be submitted in writing to the relevant local planning authority within the specified time period (which must be a minimum period of 28 days) explaining the ground(s) on which the objection is made. Objections can be submitted on any ground, and will naturally be dependent on the specific circumstances of each case, however, potential grounds of objection could include that the tree in question is damaging property or that the local authority have made a procedural error.
The local authority is obliged to consider any representations that are submitted, and upon this consideration, it has the discretion to either confirm the order, with or without modification, or decide not to finalise the order.
Once such a provisional order is confirmed, it is possible to apply to the High Court, within six weeks of the date of confirmation of the order, for the TPO to be quashed. Appeals to the High Court can only be made on a point of law and not on the particular merits or facts of the decision.
Obtaining Consent for Prohibited Works to Protected Trees
It is imperative that before undertaking works to ‘trees’ subject to a TPO, developers, and indeed residential owners, obtain consent to carry out works to the protected trees to avoid committing a criminal offence. Consent will not need to be obtained where full planning permission is obtained in advance for the development concerned.
Individuals seeking to obtain consent to carry out work on protected trees must complete a formal written application to the local planning authority specifying the grounds for the application, the operations for which consent is sought and identify the trees to which the application relates. There is no set criteria for the granting of consent, however government guidance recommends that the local planning authority consider the amenity value of the tree(s) and the likely impact of the proposal on the amenity of the area and, in light of their assessment of this point, whether the proposal is justified having regard to the reasons put forward in support of it. They are advised also to consider whether any loss or damage is likely to arise if consent is refused or granted subject to conditions.
Consent may be granted conditionally or unconditionally. Common conditions include a requirement that replacement trees are to be planted and specifications for the standard of work to be carried out. Any consent obtained is only valid for a period of two years and only authorises the works to be carried out on one occasion.
If consent is refused or an individual wishes to challenge a condition attached to the consent, there is the right of appeal to the Secretary of State. The appeal must be made within 28 days of the date of notice of the decision.
It is a criminal offence for an individual to cut down, uproot or wilfully destroy a tree, or wilfully damage, top or lop a tree in such a manner as to be likely to destroy it in contravention of a TPO.
Exceptions to the requirement for consent to carry out these prohibited activities are contained in the relevant regulatory provisions but additional exceptions can also be included within the TPO itself. The relevant regulatory provisions provide the following exceptions:
- the tree in question is dead, dying, or dangerous
- the work is required to comply with a statutory obligation
- the work is necessary for the prevention or abatement of a nuisance
- the works are urgently necessary to remove an immediate risk of serious harm
- the tree in question is cultivated for the production of fruit in the course of a business or trade and such work is in the interests of that business or trade
- The works involve the removal of dead branches from a living tree
- The work is necessary to implement a planning permission (other than an outline planning permission)
An individual is still liable for the offence even if they are not aware that the tree in question is subject to a TPO. The local authority are required to keep a record of TPOs open for public inspection, these records should therefore be consulted when an individual is considering any works to trees to prevent unknowingly committing this offence.
For such an offence, an individual is liable upon summary conviction in a Magistrates Court, and upon indictment in the Crown Court to an unlimited fine. In determining the level of fine imposed upon conviction, the legislation specifies that the Court must have regard to any financial benefit which has accrued, or is likely accrue, in consequence of the contravention. This consideration could prove particularly problematic to offences committed on development land where the financial benefit accrued is likely to be substantial. In addition to this financial penalty, individuals can also be ordered to replace a tree that has been removed, uprooted or destroyed in contravention of a TPO.
For all other contraventions of a TPO (namely not wilful destruction, or wilful damage, or tops/ lops a tree in such a manner as to be likely to destroy it) a maximum fine of £2,500 can be imposed on conviction.
If you have any questions on anything covered in this article, please contact either our Litigation & Dispute Resolution or Defence & Regulatory Team on 01603 610911, who will be happy to assist you.
Please note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.