The importance of tree felling licences
12 April 2023
We live in times when increased environmental pressures and discussions relating to climate change have become a new norm, and although housebuilders are seeking to embed sustainability into every step of the development process, having a tree felling licence in place probably isn’t on the forefront of developers’ minds.
Tree felling, which is principally governed by the Forestry Act 1967, is a legally controlled activity and, thanks to the proposed package of new powers, DEFRA and the Forestry Commission announced in December last year, that the consequences of not having such licence in place can be severe. They can lead to a potential reduction in the land’s value, not to mention unlimited fines and prison sentences.
A tree felling licence is provided by the Forestry Commission, which, in a nutshell, is responsible for protecting, expanding and promoting sustainable management of woodland. A tree felling licence helps to achieve exactly that, and it should ideally be applied for at least three months before any felling work commences. Felling licences are normally issued for a five year period, but this can be extended if they are associated with a Forestry Commission approved woodland management plan (in which case they cover a period of ten years). Anyone with an interest in land can apply for a tree felling licence and anyone involved in the development work can be prosecuted for the lack of one. It is also worth pointing out that once a felling licence has been issued it cannot be withdrawn, or amended if tree felling has started.
There are exceptions to the rule with circumstances where a felling licence isn’t needed and therefore felling trees isn’t illegal. For example, in any calendar quarter it is allowed to fell up to 5 cubic metres (m3) of growing trees on a property without a felling licence, as long as no more than 2 m3 are sold. Other common exceptions relate to carrying out development that is authorised by the approval of full planning permission, because development of the land cannot proceed without a prior removal of the trees. A felling licence might also not be required when tree felling is carried out to prevent danger, abatement of a nuisance, or it involves tree surgery by way of lopping or topping such as pollarding. This list is not exhaustive and there may be other instances when a tree felling licence is not required. Trees protected by a Tree Preservation Order (TPO) are no different and fall under the scope of the felling licence if no exception applies and an applicant for a felling licence is required to disclose whether any trees are subject to a TPO or within a conservation area.
It is also important to note that when relying on one of the exceptions, the burden of proof is on the person carrying out the felling and inevitably subject to the available evidence in support of the case. It is therefore good practice to keep complete records and as much evidence as possible, such as photographs, maps, site surveys, inspection checklists and date/time details of the felling.
Due to the likelihood of restocking conditions on a felling licence, and the impact this could have on development potential, we would expect that in the majority of circumstances a developer would rely on an appropriate planning permission to authorise the removal of trees to facilitate development.
Even if a tree felling licence might not be required, as mentioned above, it is possible that other permissions might be required to fell trees depending on the type of trees, location and any wildlife that might be present on the development site, or when dealing with designated areas and other protected sites and landscapes.
Lastly, it is important to note that the permission to fell trees remains during the period of the felling licence, and a change in ownership of the land does not affect this. However, only the person issued with the licence may authorise trees to be felled under that licence, and so if the land has been acquired by another person, the new owner should inform the Forestry Commission, so their records can be amended accordingly. The same principle applies if there are any conditions imposed as to tree felling (i.e. restocking conditions) which will bind successors in title.
In conclusion, non-compliance with legal requirements around tree felling, can have severe consequences and could leave a developer unable to implement a lawful planning permission.
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 April 2023.