What’s got you stumped about trees?


22 January 2021

Has the law surrounding trees and hedgerows left you struggling to get to the root of your problem? Do you know what you can and can’t do with trees and hedgerows on land? Here we consider some of the issues that land owners, developers, contractors and occupiers may face in relation to trees.

Tree Preservation Orders and Trees in Conservation areas

Tree Preservation Orders (TPOs) are protective orders which can be made by the local planning authority (LPA). They are able to make orders in respect of trees, groups of trees or woodland if it believes that it is “expedient in the interests of amenity”[1]. What does that mean? In very basic terms, whether it should be protected for the benefit of the public’s enjoyment taking into consideration a variety of factors.

What is a TPO?

A TPO prohibits work such as cutting, lopping, topping and uprooting of trees as the wilful destruction of or wilful damage to the same, except with the permission of the LPA.

Trees in Conservation Areas are treated in a similar way to those with a TPO, even if they are not subject, individually or collectively, to a TPO. If work is required, a notice would have to be served on the LPA of the intention to do the work; work should be done with the consent or after six weeks from the date of the notice but before two years after that date.

What if I don’t have consent?

Whilst there are exceptions in some cases to the requirement to obtain permission, work in breach of a TPO constitutes an offence for which the maximum penalty is an unlimited fine.

It is also an offence to “contravene the conditions of a TPO in any other way” than described above, although the fine may be less.

An important exception is that of undertaking work to a tree(s) so far as such work is necessary to implement a full planning permission. It is, however, worth noting that trees on development sites may also be protected by planning conditions, so it is important to ensure these are complied with.

The offence doesn’t just relate to the ‘owner’ of the tree; a LPA may pursue anyone who carries on any unauthorised activity, meaning that a landowner as well as a tree surgeon or other contractor could be liable to prosecution. Lack of knowledge that a TPO exists would not create a defence; due diligence is required.

But note, the restrictions explained above should not be taken lightly; if prosecuted, the court is entitled to take into account the ‘amenity value’ of a tree or trees taken down when considering sentence. A homeowner had a £75,000 fine imposed upon him; which was upheld at appeal where the judge stated that the loss of the tree must have “caused considerable distress and upset” to his neighbours. He was also ordered to pay £50,000 under the Proceeds of Crime Act, the calculated increase in the value of his property.

Are Felling Licences the same as consent?

In short, no. Tree felling is also a legally controlled activity for which you may require a licence. The Forestry Commission regulates felling not LPAs. As with TPOs, anybody who is involved in felling is responsible for ensuring that a licence is obtained, where required.

Are there exceptions to the requirement to have a licence?

There are some exemptions in place, for example felling dangerous and nuisance trees and calendar quarter personal allowances. There is also an exemption for development or permitted development, where felling is necessary for the development. You may be required to provide evidence of permitted development. Furthermore, you must ensure that you meet all of the requirements of the exemption.

What are the consequences of felling without a licence?

If no exemption is available, is an offence for which the offending party/parties may be fined. A restocking notice may also be imposed as an ancillary order post-conviction.

Felling licences are likely to have conditions of restocking and/or continued maintenance of the restocked trees. A licence and/or any restocking notice that comes as a condition of the licence will pass to a new owner if the land is sold. Failure to comply with conditions may lead to enforcement action.

 “Illegal felling is a breach of cross compliance and can result in a financial penalty being imposed on farm payments”. The Rural Payments Agency would be notified in the circumstances where an agricultural holding or farming business has been convicted and/or received a restocking notice.[2]

A confiscation order may be applied for by the Forestry Commission if it is believed that a benefit has been derived from illegal felling activity.

It’s not just trees...

The Hedgerow Regulations 1997 (HRR) apply to the majority of hedgerows on agricultural land except where it is marking the boundary of a dwelling house.

Unless permission is given in writing from the LPA, the removal of hedgerows is prohibited unless certain, limited, exceptions apply.

An offence is committed if “a person intentionally or recklessly removes, or causes or permits another person to remove, a hedgerow”[3] and may be liable to pay a fine. In determining the level of fine, the court is entitled “to have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence”[4].

As with TPOs and illegal felling, offences can be committed under the HRR by companies as well as individuals. Likewise, the provisions of the Proceeds of Crime Act 2002 may also be applied if a financial benefit has been received from the illegal activity.

If you would like any advice on these issues and how to manage trees and hedgerows on your land without falling foul of the law, please do not hesitate to contact Philippa Dyer or Edward Long in the Planning and Environmental Team.

 

[1] Town and Country Planning Act 1990

[2] Forestry Commission – Tree Felling – Getting Permission

[3] Regulation 7(1) Hedgerow Regulations 1997

[4] Regulation 7(6) Hedgerow Regulations 1997

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2021.

Authors

Philippa Dyer

Senior Associate

+44 (0)1473 299171

+44 (0)7817 940663

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