Protection of trees: what developers and landowners need to know

Our Protection of Trees webinar was hosted by Jill Crawford and Tracy Lovejoy from our Planning and Environment team on 9 February. In case you missed the webinar, here is a summary of the key discussions during the session.  

The webinar covered a range of topics about protection of trees, such as the need for a felling licence, Tree Preservation Orders (“TPOs”) and tips for developers in relation to trees.

The need for a felling licence

Tree felling is a legally controlled activity under the Forestry Act 1967. Deforestation is different to felling, as deforestation causes semi-permanent or permanent loss of woodland but felling trees does not cause permanent loss.

Unless one of the permitted exemptions apply, any person who fells growing trees is obliged to seek  permission from the Forestry Commission before felling trees.

The exemptions include:

• felling up to 5 cubic metres of growing trees on your property provided that no more than 2 cubic metres are sold;
• tree surgery by way of lopping or topping (including pollarding) to maintain good health and extend lifespan;
• felling trees of under 1.3 metres in height with a diameter of 8 cm or less;
• removal of dangerous and nuisance trees; and
• felling of trees immediately required for the purpose of carrying out development authorised by the grant of full planning permission.

Once a tree felling licence is granted, it cannot be withdrawn and permission to fell trees remains during the lifetime of the licence even if there is a change in ownership of the land.

Part II Sections 9 to 26 of the Forestry Act (the “Act”) deals with powers to control the felling of trees. Section 17 of the Act creates an offence for felling trees without a licence if no exemption applies. Breaching Section 17 of the Act used to attract a fine of £2,500 or twice the value of the tree, whichever is the higher.

Due to commercial considerations, the fine frequently does not significantly discourage individuals or companies who illegally fell trees. Therefore, Section 17 of the Act was amended on 1 January 2023 to increase the level of fine a court can impose from £2,500 to an unlimited amount.

There are also other changes in relation to protection of trees, such as:

• failure to comply with a Forestry Commission Enforcement Notice and subsequent court ordered restocking Order will put offenders at risk of imprisonment and an unlimited fine; and
• Restocking Notices and Enforcement Notices will be listed on the Local Land Charges Register, making them visible to prospective buyers of the land and potentially reducing the land’s value.

If there are suspected offences, the initial investigations are carried out by the Forestry Commission. If suspected offences have been committed for illegal tree felling then the matter is usually passed to the Department for Environment Food and Rural Affairs (“DEFRA”) to continue with the investigation. If a decision is made to prosecute, it is referred to the Crown Prosecution Service and the case will be dealt with at the Magistrates Court.

TPOs

A TPO is an order made by a local planning authority (the “LPA”) in England to protect specific trees, groups of trees or woodlands in the interests of amenity. TPOs can be made for individual trees, group of trees or certain species of trees within a certain area. Breaching a TPO is a strict liability offence, meaning that all that needs to happen to result in a conviction is sufficient evidence of (1) the existence of the TPO (2) lack of consent from the local authority to cut, lop, top or carry out any prohibited activities and (3) that a prohibited activity has been carried out.  There is a statutory duty to replant trees which have been removed and a TPO may be further enforced with a replanting order or an injunction.

The procedure for making a TPO can be summarised as follows:

• Provisional TPO – usually made with immediate effect and the LPA needs to confirm the TPO within six months;
• Notification – a statutory process whereby the LPA needs to state the reasons for making the TPO and explain objections or representations about the TPO can be made. The LPA also needs to specify a date (at least 28 days after the date of the notice) by which any objection or representation must be received;
• Representations
• Re-consideration/Modification of Order – the LPA can remove trees from the final order but cannot add trees or make wholescale or substantial changes like changing an area order into a woodland order;
• Final TPO 
• Notification
• Challenge period – the period for challenging the TPO in the High Court is six weeks.

You can obtain consent to work on a protected tree by making an application to the LPA. The LPA has eight weeks to decide whether to grant the consent conditionally, unconditionally or refuse. Once the consent is granted, it will last for two years. In case the LPA refuses the application or fails to issue a decision, you have 28 days to appeal to the relevant Secretary of State.

There are exceptions to the need for consent to work with a protected tree such as work:

• To remove dead trees and branches;
• on dangerous trees and branches;
• to comply with an Act of Parliament;
• to prevent or abate a nuisance;
• as is necessary to implement a planning permission;
• on fruit trees;
• by or for statutory undertakers;
• for highway operations;
• by the Environment Agency and drainage bodies;
• in the case of woodlands, work done in accordance with a felling licence granted by the Forestry Commission; and
• for national security purposes.

Tips for developers and landowners

What happens if you receive a TPO?  The webinar provided some tips which included:

• get your solicitor to check the TPO and notification documents;
• get your arboriculturist or other suitable tree expert to assess the trees which are the subject of the TPO; and
• Respond to the TPO on time.

Therefore, when developers and landowners deal with tree felling or are faced with TPOs, it is recommended that they seek legal advice from solicitors to ensure that the correct legal process is identified and complied with. We are well placed at Irwin Mitchell to guide landowners and developers through that process.