Protected Trees – Ignore at Great Cost!

On 16 October 2019 a developer was fined £300,000 after deliberately removing a 176 year-old giant redwood tree, in addition to 69 other protected trees, in Swansea and on 31 December 2019 an owner in Chelmsford was fined £61,000 for damaging a tree in a conservation area after consent to carry out the works was refused.

The level of these fines evidences the importance of protecting trees and woodland in England and the severe punishment which can be imposed by the Courts in the event of a breach of the rules. This article considers the ways in which trees can be protected by a local planning authority and the consents which may be required before works may be carried out to any protected tree.

The local planning authority has the power to make a Tree Preservation Order ("TPO") to protect any tree, group of trees or woodland where it is "in the interests of amenity". Where a TPO is imposed, works cannot be carried out to the tree or trees subject to the TPO without the local planning authority's prior written consent.

The works protected by a TPO include:

• Cutting down;
• Topping;
• Lopping;
• Uprooting;
• Willful damage; or
• Willful destruction. There are a number of exemptions, which if applicable, permit works to be carried out without the local planning authority's consent. Exemptions include dead trees and branches and dangerous trees and branches. However, the local planning authority may still need to be notified of the works and the exemptions are strict which means that the local planning authority could still challenge the exemption and seek an injunction from the Court to prevent the works going ahead if it does not believe the exemption applies. Accordingly, we would always advise that advice is obtained from a specialist aboriculturist before any works are carried out without express consent and the Council is approached if necessary for written confirmation that the exemption applies.

Where a tree is protected, an application must be made to the local planning authority using its standard application form. Any person can apply for consent; the application does not need to be made by the landowner, although we would always advise that a landowner is notified of an application as the local planning authority may consult with the owner prior to determining the application. The application must be made in the requisite form and must include a detailed plan which shows the trees to which the application relates. The application should also state the reason for the application together with any other evidence or information which would support the application.

The local planning authority has 8 weeks to determine an application and can grant the consent with or without conditions. As with planning applications, there is a right of appeal against a refusal, non-determination or the grant of consent subject to conditions.

Unless an alternative date is set out within the consent, any consent will be valid for 2 years. Accordingly, any owner or developer must ensure that any works are completed within the time limit otherwise a fresh application for consent must be submitted.

Further protection is also given to trees situated in a conservation area, i.e. "an area of special architectural or historic interest, the character or appearance of which it is desirable to preserve or enhance". Where a tree is subject to a TPO within a conservation area then the TPO procedure above applies. However, where a tree is not subject to a TPO, the trees are also protected and additional requirements are imposed.

If an owner or developer wishes to remove a tree in a conservation area, then the local planning authority must be notified 6 weeks before the works are carried out to give the local planning authority the chance to make a TPO on the tree or trees. Once the local planning authority receives a notice, the local planning authority has the power to impose a TPO (whereby the procedure set out above will apply), permit the works to be carried out or do nothing.

The application must identify the trees to which the works relate and the proposed works which are to be carried out together with any supporting information or evidence. Again, there is a standard form of application available but this does not have to be used.

If the local planning authority does not respond to the notice or grants approval to the works, then the applicant may proceed to carry out the works. Again, the works must be carried out within 2 years of the date of the approval or expiry of the notice period (as appropriate) otherwise a new notice would need to be submitted.

A breach of these rules can lead to criminal liability and the penalties for contravening the above rules are strict, with the Magistrates Court having the power to fine up to £20,000 and the Crown Court having the power to impose an unlimited fine. It is therefore critical that any landowner or developer considers whether a tree is subject to a TPO or is situated in a conservation area before carrying out any works, and if so, applies for consent or serves notice (as applicable) prior to the commencement of such works otherwise the penalties could be huge.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.