Tree Preservation Orders Guidance Update

GUIDANCE NOTES ON TREE PRESERVATION ORDERS

What is a Tree Preservation Order?

A Tree Preservation Order (TPO) is an Order which provides protection for an individual tree or a group of trees. The Town & Country Planning (Tree Preservation) (England) Regulations 2012 govern all TPOs in England. The power to make such an Order lies with the Local Authority in whose area the tree(s) exist. The Local Authority’s purpose is to preserve amenity and retain trees which blend into the environment and would if removed be a Loss to the Amenity and Appearance of a locality.

What is the Effect of a Tree Preservation Order?

The effect of a TPO is that an owner of land upon which a tree, subject to a TPO, is made cannot carry out any of the following activities (defined as “Prohibited Activities) pursuant to Regulation 13 without the consent of the Local Authority TPO Officer.

  • Cutting down of a tree(s)
  • Topping of a tree(s)
  • Lopping of a tree(s)
  • Uprooting of a tree(s)
  • Wilful damage of a tree(s)
  • Wilful destruction of a tree(s)

Are There Any Exceptions?

Regulation 14 provides that Consent is not required for the cutting down, topping, lopping or uprooting of a tree(s) the subject of a TPO because

  1. The tree in question is dead- however before the works commence, notice of the intended works must be given to the Local Authority TPO Officer. Unless the intended works  are necessary to remove an immediate risk of serious harm the Activity must not be commenced until the Council have had five working days notice- Regulation 14(2)
  2.  Such works are urgently needed to remove “an immediate risk of serious harm”-again notice of intended works should be given to the Local Authority TPO Officer prior to the works commence
  3. Work is required to comply with a Statutory Obligation
  4. Work is to be carried out by a Statutory Undertaker or the Environmental Agency on its land to ensure the safe operation of its land or for the maintenance of service connections or to carry out works which do not need Planning Permission
  5. Work is necessary in the interests of national security
  6. The tree is cultivated for the production of fruit in the course of a business and trade and the works are in the interests of that business or trade
  7. The pruning of a tree cultivated for the production of fruit which accords with good horticultural practice.
  8. The works are necessary to implement a Planning Permission
  9. Work is necessary to abate an “actionable” Common Law or Statutory Nuisance- The Courts have held that where the nuisance (permeation of tree roots) is causing actual damage to someone else’s Property or there is an imminent threat of damage, this alone is not sufficient for the tree to be cut down. The Law provides that all alternative options (alternative engineering solutions) to abate the nuisance must be considered.

How Is a TPO Made?

  1. The Order is first made as a Provisional TPO. The Local Authority have a maximum of 6 months to decide whether or not to confirm the TPO.
  2. During this period the Local Authority must serve a copy of the Order and the prescribed information known as a Regulation 5(2) Notice on those with an Interest in the Land the subject of the Provisional TPO  and make the same available for public inspection.
  3. The Regulation 5(2) Notice must state the reasons for the making of the Provisional Order, procedures under Regulation 6 for making Objections and Representations. Those wishing to make Objections and Representations must be given at least 28 days to do so
  4. The Local Authority may confirm the Order as stands, confirm the Order subject to modifications, or determine not to confirm the Order. Where a TPO is confirmed a copy must be made available for public inspection, it will be registered in the Local Authority’s register of TPOs and also as a Local Land Charge against the Property

What Do I Do If I Want To Cut Down, Top, Lop, or Uproot A Tree Which Has A TPO?

  1. An Application for a Tree Preservation Order Consent (‘TPOC’)  using a prescribed form and plan showing the tree(s) in question is made to the Local Authority Tree Preservation Officer – “Regulation 16 Application”
  2. The Local Authority Tree Preservation Officer has eight weeks to make a decision which  involves one of
  • Grant Consent Unconditionally
  • Grant Consent subject to prescribed conditions set out in Regulation 17(2)
  • Refuse to give Consent
  1. Where Consent is granted, the works must be carried out within two years of the date of consent and must be carried out in one go- Regulation 17(4). Once granted the Tree Preservation Order Consent can “run with the Land” which means that a subsequent owner of the land can carry out the works- Regulation 17(5)
  2. Where an application for TPOC is refused, or granted subject to conditions, (such as having to plant a Replacement Tree)  a Landowner may appeal, subject to paying the costs, the decision as either a ‘Tree Preservation Order Appeal’ or a ‘Tree Replacement Notice Appeal’ to the Secretary of State for Communities and Local Government under Regulation 19(2). The appeal must be lodged within 28 days of the Local Authority decision or 28 days after the expiration of the 8 week period of determination where the Local Authority TPO does not make a determination. The Secretary of State may confirm the original decision or reverse it. The decision of the Secretary of State is final.

Am I Entitled To Compensation?

  1. Provisions in old TPO (pre 2nd August 1999) which excludes the Payment of Compensation by a Local Authority called “Article 5 Certificates” are now void
  2. Regulation 24 provides that where a landowner can establish that he /she has suffered “loss or damage” as a result of the refusal to issue a Tree Preservation Order Consent (TPOC) or granting a TPOC with Conditions which are considered unreasonable
  3. An application for compensation must be made within 12 months of the Local Authority decision or where the matter has been appealed to the Secretary of State within 12 months of the Secretary of State’s Decision. No application can be made where the compensation is for less than £500.00
  4. Compensation cannot be claimed for
  • loss of development value or diminution in value of land
  • loss or damage which is not reasonably foreseeable- this would be a question of fact in each case. See page 4 of this Guidance Note – Horsham District Council Case 2011
  • loss or damage which though reasonably foreseeable could have been mitigated if the landowner had taken reasonable steps to avert such loss or damage
  • costs incurred in appealing to the Secretary of State

How Will I Know Whether My Property Has A Tree(s) The Subject Of a TPO?

The designation is recorded as a Local Land Charge in the Local Authority Official Search and therefore should be known to you when you purchase. Alternatively the Local Authority may make an application during your period of ownership or you or a neighbour may make the application.

 

 

So Where Does This Leave Me Owning Land With a Tree The Subject of a TPO?

  1. Our bringing to your attention that you have a tree or a group of trees the subject of a Tree Preservation Order (TPO) means that you should not do anything to the tree(s) without the express consent of the Local Authority
  2. The health and preservation of the tree(s) is/are paramount
  3. You should obtain advice from a suitably qualified Arborist as to the health of the tree at regular intervals
  4. You should ensure that your Building Insurance Company is aware of the tree(s). This is because if the tree(s) cause damage to either your property and or a neighbours property that you will have the comfort of knowing that any damage caused by the tree, will be met by the Insurance Company (subject to you paying your excess)
  5. No steps should be taken to cut down, reduce in height, lop, remove branches, wilfully damage or destroy any tree the subject of a TPO without consultation with the Local Authority Tree Preservation Officer and any works carried out should be strictly in accordance with that instructed by the Officer
  6. Please remember that a Local Authority will want you to look at all alternative engineering solutions, before agreeing to any steps being taken to cut down, reduce in height, lop, remove branches, to any such tree
  7. An Owner of Land which has tree(s) the subject of a Tree Preservation Order is under no legal obligation to appeal against such an Order being made. A Local Authority can be liable for the reasonable foreseeable consequences of making an Order. So in 2011 case Horsham District Council were held liable for the cost of underpinning to a house to correct root permeation from a tree the subject of an Order- Wright & Aviva Insurance v Horsham District Council 2011

NOTE: Trees not the subject of a TPO but in a Conservation Area have a degree of protection as if a TPO but Section 211(11) of the Town and Country Planning Act 1990 has been amended by Regulation 15 of the Town & Country Planning (Tree Preservation) (England) Regulations 2012 which provides  a Consent is not needed to cut down, lop, top, uproot a tree in the following circumstances

  • The circumstances in Regulation 14 apply
  • The cutting down or uprooting of a tree whose diameter does not exceed 75 millimetres but subject to the caveat that where a tree has more than one stem at a point 1.5 meters above the natural ground level, its diameter shall be treated as exceeding 75 millimetres if any stem measured over its bark at that point exceeds 75 millimetres
  • The topping or lopping of a tree whose diameter does not exceed 75 millimetres but subject to the caveat that where a tree has more than one stem at a point 1.5 meters above the natural ground level, its diameter shall be treated as exceeding 75 millimetres if any stem measured over its bark at that point exceeds 75 millimetres
  • The cutting down or uprooting of a tree whose diameter does not exceed 100 millimetres, which is necessary to promote the growth of other trees but subject to the caveat that where a tree has more than one stem at a point 1.5 meters above the natural ground level, its diameter shall be treated as exceeding 100 millimetres if any stem measured over its bark at that point exceeds 100 millimetres