Tree preservation orders

The law relating to tree preservation orders is contained in the Town and Country Planning Act 1990 (as amended), the Forestry Act 1967 (as amended) and in a number of secondary pieces of legislation.

What is a tree preservation order?

A tree preservation order is an order made by a local planning authority or the Secretary of State which prohibits certain activities or works that may harm the tree or trees to which the order relates. A tree preservation order can also require the replanting of part of a woodland area which is felled in the course of permitted forestry operations.

What types of activity can a tree preservation order prohibit?

A tree preservation order may prohibit the cutting down, topping, uprooting, wilful damage or wilful destruction of a tree. The cutting of tree roots is not expressly prohibited. However, if the cutting of tree roots has the effect of damaging or destroying a tree that is subject to a tree preservation order the carrying out of such works is likely be in contravention of the tree preservation order.

Can any work be carried out on a tree which is subject to a tree preservation order?

Work can be carried out on a tree which is subject to a tree preservation order if permission has been obtained for such work from the local planning authority or in the following circumstances:

  • where the tree is dying or dead or has become dangerous;

  • where there is an obligation imposed by or under an act of Parliament to carry out such work;

  • where such work is necessary to prevent or abate a nuisance.

Whilst permission is not required in these three situations it is sensible to notify the local planning authority of any such proposed works in advance wherever possible since a local planning authority may not agree that such works are necessary or reasonable and if that is the case the person carrying out the work could face prosecution.

Tree preservation orders do not have effect in relation to work carried out by or on behalf of the Forestry Commissioners on land placed at their disposal pursuant to the Forestry Act 1967 or otherwise under their management or supervision or where the Forestry Commissioners have approved such works.

What are the consequences of contravening a tree preservation order?

A person who contravenes a tree preservation order can be prosecuted and, if found guilty, fined. The level of the fine could be considerable and when deciding the amount of the fine the Court may take into account any financial benefit gained or which may be gained by the person who contravened the tree preservation order. If, therefore, a property developer cuts down a tree to which a tree preservation order relates because it is in the way of his development he can expect to receive a large fine.

If a tree preservation order is contravened the owner of the land will normally be obliged to plant another tree of an appropriate size and species at the same place as soon as he reasonably can. The original tree preservation order will apply in relation to the newly planted tree.

If the owner of the land fails to do so the local planning authority may serve on him a notice requiring him to plant a tree or trees of a size and species specified in the notice within a period of time specified in the notice.

A landowner who is served with such a notice can appeal against it to the Secretary of State.

If the landowner fails to comply with such a notice then the local planning authority will have the power to enter the land and plant the tree or trees specified in the notice and if the landowner or any other person wilfully obstructs the local planning authority from doing so they can be prosecuted and, if found guilty, fined. The local planning authority is entitled to recover their reasonable expenses of planting any tree or trees in such circumstances from the landowner.

Can work lawfully be carried out on a tree which is not covered by a tree preservation order?

If a person cuts down, tops, uproots, wilfully damages or wilfully destroys a tree in a conservation area they may be prosecuted and, if found guilty, fined. Certain types of work are, however, permitted (under the Town and Country Planning (Trees) Regulations 1999) such as the cutting down of a very small tree.

A person prosecuted for one of these acts will have a defence if they can prove that they carried out the act with the consent of the local planning authority or served notice of their intention to do the act in question on the local planning authority and the local planning authority didn’t place a tree preservation order on the tree or trees in question within 6 weeks and the work was carried out within 2 years of the date of the notice.

If a tree situated in a conservation area is removed, uprooted or destroyed or dies in the course of it being cut down or uprooted with the permission of the local planning authority the owner of the land will normally be obliged to plant another tree of an appropriate size and species at the same place as soon as he reasonably can.

If the owner of the land fails to do so the local planning authority may serve on him a notice requiring him to plant a tree or trees of a size and species specified in the notice within a period of time specified in the notice.

Can compensation be claimed in relation to a tree preservation order?

In certain circumstances it may be possible for a person to obtain compensation from a local planning authority for any loss or damage suffered if the local planning authority refuses to consent to work to a tree or grants its consent but subject to conditions.

It may also be possible to obtain compensation from a local planning authority to cover the cost of replanting a woodland area which is felled in the course of permitted forestry operations.