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Tree Legislations - A Comprehensive Guide

The UK is famed the world over for its beautiful greenery and flora. We are home to many native tree species that form a significant role in our history and that of many other countries. Therefore, it is no surprise that both the forestry and arborist industries play a vital role in the management of everything that makes our wildlife beautiful. As a nation, we are exceedingly proud of the trees that form our skylines and those that tell a detailed story about different locations. And, it is for this reason that we have a range of legislation in place here in England to protect trees and for varying reasons. As professionals working within these industries, it is vital that you understand this legislation and how it could impact a project you’re working on. This guide will look into the main ones, including Tree Preservation Orders, Conservation Areas, Planning Conditions, Felling Licenses and Restrictive Covenants.

The information provided here is relevant only to trees found in England. It is your responsibility to find out the legal status of a tree or cluster of trees before any work is agreed upon. You cannot claim ignorance as a reason for breaching any one of them. The consequences are high with anything from large fines or even criminal records handed out.

Tree Preservation Orders (TPOs) Explained

The most common form of legislation you’re likely to come up with again is a Tree Preservation Order or TPO as they are known in the industry. These are legislations that protect any tree or cluster of trees that ‘bring significant amenity benefit to a local area’. In short, this means if a tree improves the aesthetical attractiveness of an area, enhances its features and improves enjoyment for visitors, it can be considered for a TPO. You are also likely to find TPO’s upheld on tree species that are under threat.

What is a TPO?

A TPO is a written order which, once issued, makes it illegal to alter the physical state of a tree. This covers cutting down, topping, lopping, uprooting and willfully damaging or destroying a tree without the LPA’s prior agreement.

Who issues them?

TPO’s are issued by Local Planning Authorities (LPAs) such as boroughs, national park authorities or unitary councils. Although this does not leave the LPA responsible for the care of protected trees, it does give them the right to seek prosecution if these legislations are crossed.

What trees can be covered by TPOs?

All types of trees can be covered by these orders. This can include everything from traditional oaks to hedges, bushes or shrubs. They can be used to protect single trees or all of those within a defined area. It is important to note that while all species of trees can be protected, no single species is automatically protected. Therefore, it should be assumed that a tree is protected just because it is an endangered species type.

What happens if a TPO is breached?

As mentioned before, breaching a TPO can have serious consequences. The most serious of cases will be dealt with through the Crown Court where there is the possibility of an unlimited fine being imposed.

Is there any activity that isn’t covered by a TPO?

There are a number of reasons why a TPO could be breached without the risk of prosecution. These include:

  • If cutting down a tree in accordance with one of the Forestry Commission's grant schemes or where the commission has been granted a felling license.
  • When removing dead branches from a living tree.
  • When cutting down a tree that presents an urgent safety risk. In this instance, you must obtain written notice from the LPA as soon as realistically practical.
  • When cutting down a tree that is dead. In this instance, you must give 5 working days of written notice of this proposal to the LPA.
  • When a tree is directly in the way of development that is about to start for which detailed planning permission has been granted.
  • In a commercial orchard or when pruning fruit trees.
  • In accordance with an Act of Parliament obligation.

Are there any requirements to plant a replacement tree under a TPO?

There may be specific requirements that mean you have to replant a tree to replace one that was originally covered by a TPO. This normally applies to situations where the tree that had been removed was dead or dangerous to the local environment. There may also be instances where the LPA gives permission for a protected tree to be cut down but makes replanting a requirement of this approval. And, finally, there may be situations where the Forestry Commission grants a felling license.

Does a TPO have an impact on planning permission?

A TPO will not automatically cause a planning permission request to be denied. However, the LPA may take into account the location and existence of protected trees when considering the application.

More information can be found about TPO’s via the Gov UK website here.

Conservation Areas Explained

There is specific legislation that covers conservation areas as a whole. When it comes to trees, TPOs are once again the main type. As mentioned above, they prohibit trees from being cut down, topped, lopped, uprooted or damaged.

Are all trees in conservation areas covered by TPOs?

No. There is no blanket cover under TPO’s that covers all trees in a conservation area. However, those that are not covered will be protected by section 211 of the Town and Country Planning Act 1990. In this instance, an LPA must be notified of certain work 6 weeks before it is due to be carried out. This gives the authority the time to apply a TPO to the tree in question if required.

What is the penalty for carrying out unauthorised work on protected trees in conservation areas?

Generally, if you cause damage to a tree covered by a TPO in a conservation area, you’re looking at a fine of up to £20,000. The landowner has a responsibility to plant another tree of an appropriate size and species in the same place at the soonest time realistically possible.

Are there any exceptions to the rule?

Taking into account section 211, prior notice is not required in situations where:

  • The tree is cut down, topped, lopped or uprooted does not have a diameter of over 75mm.
  • The tree is cut down or uprooted has a diameter under 100mm and the main purpose of the removal is to improve the growth of other trees.

Felling Licenses

A felling license is administered by the Forestry Commission and gives permission for trees to be altered in a specified area. Anybody can apply for one but it must be obtained in the name of the property owner or lessee. Without this license, felling trees is a criminal offence and will be prosecuted as such.

When is a felling license required?

You must obtain a felling license if you are due to fell more than 5m³ in one calendar quarter. This law dates back to 1967 and is there to ensure woodlands and hedgerows are sustained over the long term to protect against loss.

When do I not need a felling license?

There are certain situations where a felling license will not be required. The main one of these is when felling trees in gardens. Other factors that provide exceptions to the rule are:

  • The tree’s location.
  • The type of tree work.
  • The volume/diameter of the tree.
  • Other legislation, orders or permissions that are currently in place.

If you are unsure about whether you need a felling license, it is advisable to contact the Forestry Commission area office for more information. There is also additional information about felling licenses available on the GOV website here.

Planning Conditions

Although planning permissions will not automatically be denied if they hinder a TPO, the LPA has a statutory duty to take these protective acts into account when granting permissions. In particular, they must consider the potential impact of new developments on tree quantity and health. As a nation proud of our greenery, planning conditions are there to protect the retention of trees, hedgerows and other plants during building development and during the after a period of completion.

As a developer, what information do I need to take into account?

Planning permissions are notoriously hard to obtain. Therefore, it is always helpful to advise developers about what information will be required during the application stage of planning permission when it comes to trees. The British Standard BS 5837:2012 Trees in relation to design, demolition and construction provides detailed information about this and should be read in full.

Restrictive Covenants

What is a restrictive covenant?

In essence, it is an agreement between two people (normally the buyer of land and the seller) to not do certain things with the land, including the removal of certain trees. They are binding conditions that are written into the deeds of the property or contract.

Why are they in place?

Primarily, they are used to maintain a certain standard for all residents in a designated area. This can be in relevance to aesthetics or the general feel of a road. They prevent owners from undertaking work that can impact negatively or undermine the uniformity of an area.

What things are covered?

These restrictions really can cover anything from satellite dishes and CCTV to allowing a garden to become overgrown or, in this instance, the removal of specific trees. Landowners are able to place restrictive covenants on land to protect the value and minimise damage.

How do I deal with a restrictive covenant?

Ordinarily, you will need the permission and consent of a third party before carrying out work on these protected trees. This applies even if TPO’s, Conservation Area or Felling License regulations are not active.

More information can be found on the Homeowners Alliance website here.

If you have any further questions about legal restrictions on tree and shrubbery, contact the local planning authority or visit the GOV website where a host of information is available.

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