The protection of trees by Tree Preservation Orders

When owning property of any kind where there are trees, or possibly only one tree, you must take care when approaching undertaking work to or felling those trees, or that tree. We have previously written about the need for felling licences to fell trees in certain circumstances and the Forestry Commission’s enforcement remedy of restocking notices, where a licence is required but was not obtained prior to felling.

A Tree Preservation Order is the more common form of protection of trees.

What is a Tree Preservation Order (TPO) and who makes them?

A TPO is an order made by a local planning authority in England to protect specific trees, groups of trees or woodlands in the interests of amenity. A TPO will be made if the local planning authority considers it to be expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area.

Authorities either initiate the process of granting a TPO themselves or in response to a request made by any other party.

County councils can grant TPOs but there are restrictions in areas where there is both a district planning authority and a county planning authority, as a TPO can only be made:

  • where necessary in connection with the grant of planning permission;
  • on land which is not wholly lying within the area of a single district council; or
  • on land in which the county council holds an interest.

TPOs can only be made to protect anything that ordinarily would be termed a tree. This would not normally include shrubs, but could include, for example, trees in a hedge or an old hedge which has become a line of trees of a reasonable height.

What does the grant of a TPO mean practically?

Owners of trees subject to TPOs are expected to maintain those trees. There is not however a set standard to which they must be maintained. The local authority can (and often will) encourage good tree management. If you require advice on the management of trees, expert arboricultural advice should be sought.

A TPO prohibits the following activities being undertaken to a tree and or its roots (subject to a TPO) without the local planning authority’s written consent. This includes works to diseased and dying trees.

  • cutting down
  • topping
  • lopping
  • uprooting
  • wilful damage
  • wilful destruction

If consent is given to these activities, that consent can be subject to conditions, which have to be followed.

When granting planning permission, local authorities have a duty to ensure that planning conditions are used to provide for tree preservation and planting. TPOs should be made in respect of trees where they consider it appears necessary in connection with the grant of that planning permission.

If planning permission is granted to include the felling of a tree protected by a TPO, that planning permission overrides any TPO protection. If a tree protected by a TPO is permitted to be felled, the landowner will often be required to replace that tree somewhere else.

Can you undertake works to a TPO protected tree and or remove or vary a TPO?

Yes. There is a process to follow and will involve an application to the local planning authority, in which you must identify the tree(s) to be worked on and the reasons why the work needs to be undertaken. There are numerous considerations to be taken into account before determining if works can be undertaken to trees protected by a TPO and should be reviewed and considered carefully prior to applying to the local planning authority to undertake the same.

In certain circumstances, you may undertake works to a tree protected by a TPO without consent. These circumstances include the following:

  • To remove dead (as opposed to dying) trees and branches
  • Where the tree and or its branches pose some form of danger
  • To prevent or abate a nuisance
  • To implement a planning permission, as mentioned planning permission will trump a TPO
  • Fruit trees can be worked on without permission
  • Works by or for statutory undertakers, e.g. the railway
  • Works connected to highway operations
  • Works by the Environment Agency and drainage bodies
  • In the case of woodlands, work done in accordance with a felling licence granted by the Forestry Commission
  • Works necessary for the purpose of national security
  • Works necessary to comply with an Act of Parliament

Enforcement of TPOs

Anyone who breaches a TPO is guilty of an offence and may be fined up to £20,000 (in the Magistrates’ Court) or an unlimited amount in the Crown Court. The financial benefit of breaching the TPO can be considered when assessing the fine. In addition, there is a duty on landowners to replace trees protected by a TPO which are felled.

You will be in breach of a TPO if without consent you cause or permit a tree to be:

  • cut down
  • uprooted
  • destroyed
  • topped
  • lopped

With regards to limitation periods, typically, authorities may only bring an action within 6 months from the date on which sufficient evidence came to light. However, proceedings cannot be brought more than 3 years after the date the offence was committed.

Local planning authorities may however elect not to prosecute an offence and instead can also:

  • do nothing
  • negotiate with the owner to remedy the breach
  • issue an informal warning
  • seek an injunction to stop on-going works and prevent anticipated breaches

How Moore Barlow can help

We offer expert advice in a wide variety of areas of rural life, including supporting private landowners in their property transactions, renewable energy projects and access to a range of national and local schemes.

A combination of a deep love for, and understanding of, the countryside combined with relevant legal expertise means we can provide you with the very best advice.

We offer dedicated support for those who own landed estates, farmland and buildings and sizable country homes, as well as people who use their land for sporting pursuits.

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