What is a Tree Preservation Order?
Lauren Walker, an associate in the Real Estate team, looks at how trees are protected, what works are permitted when a tree is protected and the possible consequences of failing to comply with a tree preservation order.
What is a Tree Preservation Order?
A Tree Preservation Order (or “TPO”) is an order made by a Local Planning Authority (“LPA”) to protect a tree or trees with amenity value to the community. This can relate to a single tree, multiple trees or even an area of woodland.
Prohibited actions include:
- Wilful damage; and
- Wilful destruction.
What constitutes a tree?
Although not defined by the Town and Country Planning Act 1990, broadly speaking a tree is anything that would normally be regarded by the public as a tree. There is no size limit and a tree can be of any size from the very massive to the very minuscule. The definition also covers all stages of a tree’s life cycle from seedling/sapling, but not including when the tree is still merely a seed.
Who can apply for a TPO and how?
Essentially anyone can apply to protect a local tree. Applications must be made in writing to your Local Planning Authority and with consent of the owner of the land on which the tree is situated (unless the tree is on public property). Reasons must be given to demonstrate why a tree should be protected. Common reasons used to support an application include documented support of wildlife and amenity value to the community due to its appearance. However, the granting of such an application is discretionary and ultimately the decision rests with the LPA.
Consent for work
Applications can be made to the LPA for consent to carry out works on protected trees. These may be refused, granted unconditionally, or granted subject to conditions with a view to preserving the amenity value of the tree(s).
A prescribed written form is required accompanied by details of the tree(s), the specification of works to be carried out, a statement of reasons for the application, evidence to support the application, showing that structural damage to property may occur if works are not carried out (if applicable) or demonstrating health and safety risks if the works are not carried out.
Consent is valid for two years and typically allows work to be carried out only once. Conditions imposed usually specify the following: the standard of the works being carried out, whether work can be carried out on multiple occasions or within a specific timescale, replanting of removed trees and how they are to be planted.
Exceptions when consent is not required
Permission from the LPA will not be required for felling, topping, lopping or uprooting if:
- The tree is dead. Although the person intending to do the work must give the LPA at least 5 working days’ notice of any such works;
- Statute requires the work to be done;
- Prevention or abatement of a nuisance;
- To enable the implementation of certain highway orders/schemes;
- If urgently necessary for national security reasons;
- To carry out works on a development where permission has been granted;
- At the request of the Environment Agency;
- At the request of a drainage body;
- Removal of dead branches from a living tree;
- When there is urgent risk of serious harm although written notice must be given to the LPA as soon as practicable
- Proper pruning of any fruit tree;
- Felling or lopping of a tree or the cutting back of its roots by a licence holder under the Electricity Act 1989;
- In accordance with forestry dedication covenants or a plan approved by the Forestry Commissioners;
- Works that are subject to a felling licence; and
- Certain works required in connection with opencast coal mining.
Contravention of a TPO includes any damage to the tree meaning you do not have to completely remove the tree to be liable. Contravening a TPO means you are guilty of an offence under the Town and Country Planning Act 1990 (“TCPA”). Liability for damaging a tree can be incurred without the person committing the offence knowing that the tree is protected. Section 331 of the TCPA also stipulates that if a company contravenes an order and/or commits an offence they are liable if it can be shown that damage resulting from their consent was attributable to any neglect on their part.
However, if the TPO and map showing the tree location have not been provided for public inspection they cannot be relied upon for prosecution.
Planting new trees
If a tree subject to a TPO is removed without consent, the owner of the land is required by law to plant a replacement. This applies whether or not a prosecution is being undertaken, unless the LPA agrees in writing to waive this requirement.
If the owner fails to comply with replanting requirements, the LPA can serve a notice requiring compliance. If the notice is itself not complied with, the authority may enter the land, carry out the replanting, and recover its costs. There is a right of appeal to the Secretary of State.
If you are having any issues with a TPO or require any further advice please do not hesitate to contact our Real Estate team.
This article forms one of a series of planning articles we have released. Please see the other related articles as follows: