If you are considering felling or carrying out works to a tree, it is important to understand what legal restrictions apply, because in some cases written permission from your local planning authority might be required, and in certain cases a licence may be required from the Forestry Commission. Felling or carrying out works to a tree without getting any necessary permissions or licences can have adverse legal consequences, including fines, criminal convictions and duties to replace felled trees.
Tree Preservation Orders
If a tree is subject to a Tree Preservation Order, permission to carry out works or fell the tree will be required from your local planning authority, apart from in some limited cases.
A Tree Preservation Order (TPO) is an order made by a local planning authority which provides protection to individual trees or woodlands. A TPO makes it an offence to cut down, top, lop, uproot, wilfully damage or wilfully destroy any tree which is protected by one, without obtaining the written consent of the local authority prior to undertaking the works under the Town and Country Planning Act 1990.
A TPO does not prevent the cutting down, topping, lopping or uprooting of a tree which is dead, where the branches are dead on a living tree, where such works remove an immediate risk of serious harm or, if it is a fruit tree being cultivated for the production of fruit in the course of business or in accordance with good horticultural practice. Liability also does not arise if such work is necessary in order to implement a planning permission (other than an outline planning permission or a permitted development order). Legal advice should be sought if you intend to rely on one of the above exceptions given the serious consequences of breaching a TPO.
In order to obtain consent, an application must be made to the local planning authority in order to obtain their consent. There is a standard application form available on the government website, or via your local planning authority directly, and evidence should be submitted explaining why the works are required.
Contravening a TPO, by damaging or carrying out work to a tree protected by a TPO, without obtaining the required consent from the local authority, is a strict liability offence. However, generally the liability does not pass to successors in title. A local planning authority is able take enforcement action against a party in breach and the associated fine per tree is unlimited. When assessing the value of the fine, a court will consider the amount of money saved by a defendant in not complying with the order (R v Palmer [1989] 11 Cr App R (S) 407). There is also a duty to replace a tree protected by a TPO which has been cut down (section 198 Town and Country Planning Act 1990).
It is not a defence to the breach of a TPO to claim that you had no knowledge the order, but it can be mitigation (Maidstone Borough Council v Mortimer [1980] 43 P&CR 67).
Regulation 5 of the Town and Country (Tree Preservation) (England) Regulations 2012 dictates that local planning authorities should make the original TPO available for public inspection; therefore, make enquiries with your local planning authority to find out whether the tree or trees you have identified for works are protected by a TPO.
Trowers & Hamlins regularly act for land owners and developers in handling applications for consent and dealing with appeals against refusals. Where a tree has been felled in breach of the regulations, Trowers are able to advise on the best course of action and to act in any proceedings.
Conservation areas
In a conservation area, anyone proposing to cut down or carry out works to a tree that is not protected by a TPO must give the local authority six weeks prior notice (section 211 Town and Country Planning Act 1990). This notice must describe the tree in sufficient detail to be identified and outline the proposed works. However, it does not have to be given if the works:
- would not require consent if the tree were protected by a TPO;
- are carried out in accordance with a felling licence;
- are carried out by or on behalf of a local planning authority; and
- are to a tree whose diameter does not exceed 75 millimetres, or does not exceed 100 millimetres if the tree works are for the sole purpose of improving the growth of other trees.
The local planning authority should acknowledge receipt of the notice. A local planning authority can then make a TPO to protect the tree in question if they can justify the decision in the interests of amenity, allow the six-week period to expire without making a TPO or inform the applicant that the work can go ahead. It is important to note that the local planning authority cannot refuse consent or grant consent subject to conditions.
It is a criminal offence to carry out works to a tree in a conservation area without giving notice, unless the works are exempt, and the penalties are the same as non-compliance with a TPO.
Felling Licences under the Forestry Act
Many land owners and developers are unaware that in some cases a felling licence may need to be obtained from the Forestry Commission before undertaking works to trees, and that felling trees without a licence (where required) is a criminal offence that can result in fines, criminal convictions and obligations to replant trees.
There are a number of exceptions to the requirement for a tree felling licence.
There is a personal allowance whereby you can fell trees totalling 5 cubic metres within your property in any calendar quarter (reduced to 2 cubic metres if you sell the timber).
A felling licence is not required if the tree or trees in question are:
- not exceeding 8 cm in diameter (or 10 cm where trees are being thinned to improve the growth of other trees (no more than 30% thinning permitted spread evenly across an area), or 15 cm in diameter in the case of coppice or underwood);
- fruit trees or trees growing on land which is an orchard, garden, churchyard or public open space;
- being topped, lopped, trimmed or for the laying of hedges;
- required to be felled for the prevention of danger or nuisance (where there is an immediate risk of harm); or
- required to be felled immediately for the purpose of carrying out development that is authorised by the approval of full planning permission.
The exception relating to carrying out development authorised by a detailed planning permission is often relied upon by developers. However, it is important to note that if felling has occurred in breach of the Forestry Act 1967 (or if there are restocking conditions imposed by a tree felling licence), a subsequent planning permission does not remove the requirement to comply with the duties that may arise under the Forestry Act 1967 or any tree felling licence (Arnold White Estates Ltd v Forestry Commission [2022] EWCA Civ 1304). This means it is extremely important for developers to do their due diligence on a site to check there has been no unlawful tree felling in the past, and that there are no live restocking conditions attached to a tree felling licence. If you intend to develop land and will need to fell trees in order to do so, it is likely to be preferable to hold off the felling activities until detailed planning permission has been secured in order to avoid the need for a tree felling licence.
Some of the exceptions above involve an element of subjectivity or professional judgment and as such before relying on an exception it is important to obtain expert legal advice given the potentially severe consequences of breaching the requirements of the Forestry Act 1967.
Summary
Felling trees or carrying out works to trees without the necessary approvals from the local planning authority and/or Forestry Commission can carry significant risks in terms of criminal convictions, fines and restocking requirements. If you are contemplating developing a site containing trees, it is vital that appropriate legal due diligence is carried out to ensure that the appropriate consents will be forthcoming.
If you would like any advice on specific queries in relation to your land or if you would simply like to discuss this topic in more detail, please contact Rory Stracey in our Planning and Environmental team.
