Tree Protection Legislation – managing trees and woodlands

Whilst this may seem a dry subject, it is really important that we all are aware of, and understand, the basics here. There are several areas of legislation that we may need to consider when managing the trees and woodlands we are responsible for.

Legislation falls into the general categories of ‘planning related’ for example, Conservation Areas and Tree Preservation Orders in The Town and Country Planning Act (1990) and associated Regulations; ‘woodland related’ covered by The Forestry Act (1969); and ‘conservation related’ under various pieces of wildlife legislation.

The Town and Country Planning Act (1990) provides protection in two main ways: (1) for trees growing in a Conservation Area and (2) by imposing a Tree Preservation Order (TPO) on a tree or trees.

Conservation Areas are based upon the special architectural or historic interest of a particular area and were formed under the Civic Amenities Act (1967). There are nearly 10,000 in England, over 500 in Wales, over 600 in Scotland and 60 in Northern Ireland. A ‘Conservation Area’ is incredibly diverse. They can be built-up areas including the historic centres of villages, towns and cities. Whole fishing and mining villages or settlements can be covered. As can suburbs of distinct quality and design, “model” areas (which may include relatively modern developments) and perhaps unsurprisingly, country houses in their historic parks. They can also apply to areas of transport infrastructure, for example stretches of canal, railway or airfields, and industrial heritage sites.

Conservation Area boundaries are shown on plans and maps available from all Local Authorities. They are fixed, and very unlikely to be changed as the process involved is protracted. There is a legal requirement to provide the Local Planning Authority (LPA) with 6 weeks’ notice of any intention of working on a live tree with a stem diameter greater than 75mm when measured at a point 1.5m above ground level. This is no more than a sapling. The LPA cannot refuse, or amend a notice. It is simply designed to provide the LPA with time to consider the implication of the works you are proposing upon the setting and character of the Conservation Area. If they consider it detrimental, they can only prevent the works by the service of a Tree Preservation Order.

Alternatively, the LPA could ask you nicely to amend or withdraw it. Once you serve notice you should get a response letter from the LPA that explains the process and the key dates. These are (a) the date it was registered and (b) the 6-week expiry date. If you do not receive this acknowledgement, I strongly advise that you ensure that the notice was received before carrying out any works. Once the 6 weeks have expired, or if you get a ‘no objection letter’ from the LPA in the meantime, you may carry out the works you have proposed, subject to any other restrictions. There is a ‘window’ of up to two years to complete the works: after that you must serve a new notice. The LPA may serve a Tree Preservation Order at any time after the 6-week expiry. This will supersede the Conservation Area procedure and brings in the Tree Preservation Order process!

A Tree Preservation Order may be served on any tree that the LPA considers is “expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area” (s. 198 Town and Country Planning Act 1990). This means that the removal of these trees or woodlands, or just potentially inappropriate works, would have a significant negative impact on the local environment and its enjoyment by the public. Protection should bring a reasonable degree of public benefit now, or in the future. What does this mean? The trees should be visible from a public place and be important. This can be because of their size, form, species, historic or cultural associations. Expedient refers to the risk that tree loss or disfiguring works may actually occur. The risk may be immediate or could happen in the future. For example, potential future development is one of the main triggers of a TPO. Trees that are clearly under responsible ownership should not need to have TPOs served upon them.

Shrubs and hedges cannot be protected by a TPO. BUT a line of trees forming a hedge could! Rural hedge removal is regulated by The Hedgerow Regulations (1997). When does a shrub become a tree? There is no legal definition of a tree. Therefore, a TPO could apply to a tree of any size or species. To make it more complicated, a dictionary definition of a tree is a “perennial plant with a woody self-supporting main stem or trunk”. Think of Hazel, or Laurel, are they a tree or a shrub? It may simply depend on how big it is. There are examples of a TPO served on large Pyracantha and (allegedly!) on a Wisteria because it fitted the dictionary definition.

The service of a Tree Preservation Order is a prescribed legal process and documents must be served in accordance with it. Owners will receive a standard form of Order detailing which trees are covered, the Schedule, and a map to show locations. It must be clear as to which trees are covered but does not have to be pinpoint accurate. Groups of trees should be clearly defined by numbers and species. Areas must show boundaries and relate to the Schedule description, all trees of English Oak’ etc, at the time of service. Any trees that grow subsequently are not covered. Woodland Orders are intended to safeguard the woodland as a whole and therefore cover all the trees within the boundary of the wood, whatever their quality, and any that grow subsequently.

Details of all Orders are held by the LPA and may be shown on their website. If you buy a property with a TPO, it will show up in the land searches. If you have any doubt about whether the trees you are responsible for are covered, please contact the planning department of your Local Authority to check. If you are directed to their website, please ask how up-to-date the information is! Orders can be served very quickly if the LPA has a mind to and therefore may not show on a web resource.

You must make an application to carry out works on a tree covered by a Preservation Order. This must detail the works fully: how much and what is to be removed; the reasons for that work and any proposals for replanting if trees are to be removed. It must provide sufficient information relating to location so the tree can be identified. If you want to carry out works due to the structural condition of the tree, or due to it being implicated in structural damage to buildings or other structures, reports from suitable professionals should accompany those notices or applications. As this is an application, rather than a notice, you must receive approval prior to carrying out any works. The approval is likely to have conditions attached to limit the time works may be carried out, and specify the quality of the works (generally to national standards of British Standard 3998:2010 Tree Work Operations). An LPA may refuse to grant consent (and provide a full reason why) or impose conditions, that you think are unfair. If that occurs, you may appeal that decision via the Planning Inspectorate.

If you carry out tree works having failed to serve notice, or make an application to work on a protected tree, you will be committing an offence. However, there are a few exceptions where the notice or application is not required (see side bar). Please ensure that if you work under an exception, you document that fully, take photographs, and retain parts of the tree to prove that you did what you did lawfully.

Contravention can result in quite serious penalties. Pruning or felling a tree without previous notice, or without making an application, could result in legal proceedings. These may be in the Magistrates’ Court where penalties may range from up to £2,500 for unlawful pruning and up to £20,000 for cutting down, uprooting or wilful destruction; or topping, lopping or wilfully damaging a tree such that it is likely to destroy it; or causing or permitting such an activity. The LPA may also instigate prosecution in the Crown Court for more serious offences. Here the fine is unlimited, and the Judge may take into account any increase in land value, or other financial benefit incidental to the (illegal) removal of the tree(s).

The largest fine currently imposed in England for the felling of one tree is £75,000. The tree was in a neighbour’s garden in Poole, Dorset and felled in the early hours of the morning (without the consent of the Local Authority or the tree owner) to improve the other householder’s sea views. An extra £50,000 fine was imposed to take into account the perceived increase in the value of the perpetrator’s property due to this ‘improved’ sea view. Costs of £17,500 were also imposed, amounting to a grand total of £142,500. Although an extreme case, it does illustrate the penalties that may be imposed.

The Forestry Act requires landowners to obtain a licence to fell more than 5 cubic metres of growing timber from a single landholding in any calendar quarter (1st January - 31st March, 1st April - 30th June etc). Five cubic metres is not a large volume of timber and could well be held in a single large tree. Felling licences are obtained from the Forestry Commission in England, the Forestry Commission Scotland for Scotland, National Resources Wales for Wales and the Forestry Service of the Department of Agriculture, Environment and Rural Affairs for Northern Ireland. Tree surgery and pollarding are normally exempt from this requirement. All other forms of tree work would be included such as coppicing and thinning. Dead trees are not covered by the need for a licence. However, the nature conservation and habitat factors may apply and care must still be taken. Trees growing in certain land areas do not need a felling licence.

For example: trees in gardens, orchards, churchyards or designated public open spaces are exempt. Trees less than 8cm diameter when measured 1.3m above ground level are exempt: or 10cm for thinning woodlands: or 15cm for managed coppice work.

Other exemptions are similar to the TPO exceptions detailed here; where full planning consent has been obtained and trees have to be removed to allow the development as agreed to proceed; the exemptions applicable to statutory undertakers; and abatement of a nuisance.

Tree Preservation Order exemptions:

The removal of dead trees or branches. Unless there is an immediate risk of harm, 5 days written notice of work under this exemption must be given to the LPA. Although this is an exempt operation, the nature conservation value of deadwood habitat, and potential for nesting or roosting species, means that the tree should be retained, or a branch shortened rather than removed, where possible. If a dead tree is removed the owner has a duty to replant under the legislation, unless it is part of a woodland TPO.

Dangerous trees or parts thereof may be removed without consent. 5 days written notice must be given. Only the dangerous element can be removed to prevent the risk occurring. A decayed tree may not be totally removed if a reduction would prevent failure. The risk must be an immediate one, and is probably quite rare unless serious and propagating structural faults are found, e.g. cracks or splits. In many cases there is time to make an application. Once again if a tree is removed under this exception there is a duty to replant, unless it is part of a woodland TPO.

Abatement of a nuisance. This is where a tree is causing actual harm or damage to something or someone. It must be demonstrable damage and the work can only be the minimum to prevent it happening. Your own tree cannot be a nuisance to you.

To allow the implementation of FULL planning permission. Where the tree has to be removed, or pruned, to allow the permitted construction to occur; or trees are specifically shown removed on the approved plans. Outline consent or permitted development (i.e. building work you can do without planning permission) does not allow for works to protected trees.

Fruit trees may be pruned, following good horticultural practice, for the production of fruit without specific consent. For the purposes of the Act only apples, pears and plums are normally considered to be fruit trees. Trees like Walnut, Sweet Chestnut and Mulberry are not considered to be fruit trees.

Statutory undertakers (e.g. electricity, gas, telecoms) have certain exemptions allowing them to carry out works to meet their statutory function. This should follow best arboricultural practice.

Other legislation may affect the ability to fell, or work on, trees that are your responsibility. If they contain nesting birds or a protected species, licences will have to be obtained prior to carrying out those works. Advice may be obtained from the statutory nature conservation body for your area, namely Natural England, Scottish Natural Heritage, Natural Resources Wales or the Department of the Environment in Northern Ireland.

Trees on sites of Special Scientific Interest (SSIs) or Scheduled Ancient Monuments, will also need consideration and consent to work on to protect the land, feature or monument on which they stand. A failure to consult fully and carry out works which then damage, or harm the site, may well result in prosecution.

Be aware that multiple consents may be required on sites where more than one designation or protection applies. For example, consent to fell a tree under the TPO legislation does not automatically override the need to obtain a separate consent or licence for wildlife, or ancient monument reasons.

If in any doubt, please check with the regulatory body to see whether any permission is required!

Author: Guy Watson, Certhia Consulting Limited. Tel: 01672 540833.