Preservation of Trees
A Local Planning Authority has the power to make a Tree Preservation Order which controls the felling, topping, lopping, uprooting or wilful destruction or damaging of individual trees, groups of trees or woodlands.
There is a general requirement to replace any tree protected by an order that is uprooted or felled unless the Local Planning Authority has given express consent for the tree to be removed. The Local Planning Authority can enforce this by serving a notice on the owner of the land on which the tree is situated within 4 years of it being removed.
Where an application for consent to remove a tree that is subject to a tree preservation order, is refused the decision can be appealed to the Secretary of State and compensation may be payable for such matters as diminution in land value.
A tree preservation order is a Local Land Charge and a copy of the Order should be made available to the landowner. It is particularly easy for large landowners to forget that trees on their land are protected by TPOs. We recently represented a landowner whose tenant had lopped trees on his land bordering a neighbouring castle. The District Council required both he and his tenant to attend an interview held under the Police and Criminal Act.
Anyone contravening an order by cutting down, uprooting or destroying a tree or damaging it in a manner likely to destroy it, is liable on summary conviction to a fine not exceeding the statutory maximum or twice the value of the tree, whichever is the greater, or on conviction or indictment to an unlimited fine. In the case of any other contravention, for example cutting off branches, the maximum fine is £20,000.
A valid defence may be made if the tree is dead, dying or dangerous or it is cut down to comply with a statutory obligation or cut so far as may be necessary to abate a nuisance but the onus will be on the landowner to prove the defence applies.
A tree preservation order is passed for reasons of amenity. Trees such as oak trees have amenity value. A tree preservation order must be confirmed by the authority, but not until after the authority has considered any objections or representations made in accordance with the regulations. The order may be confirmed with or without modification.
It should also be noted that trees situated within a conservation area enjoy the same protection as trees protected by a tree preservation order. Therefore landowners should not carry out works on a tree within a conservation area without the consent of the council.
Dangerous Trees
A council has a power to take steps to make a dangerous tree safe or fell it when notified by a landowner that it is in a dangerous condition. They have the same power where a person other than the landowner notifies them that a tree is in a dangerous condition. The Council should serve a notice on the landowner of the intention to exercise its powers within 21 days. Such a notice is appealable to the county court on the basis that the notice should have been served on someone else, the tree is not in a dangerous condition or that less extensive steps than specified in the notice would suffice for the purpose of making the tree safe.
Hedgerows
Hedgerows are protected by law. We have acted in a case where a farmer removed hedgerows without getting the Council's permission. This resulted in a substantial fine and costs of some £4000.
The Hedgerow Regulations 1997 provide that before any hedgerow covered by the regulations is removed, the owner must serve a hedgerow removal notice on the local planning authority. The regulations apply to most hedgerows in the countryside more than 20 metres in length. He may then remove the hedgerow provided the local authority gives written permission or fails to respond within 42 days. Alternatively the council may serve a hedgerow retention notice and must consult with the parish or community council. A retention notice can only be issued to retain "important" hedgerows. To be important it must be at least 30 years old and satisfy a number of other criteria. A hedgerow retention notice can be appealed to the secretary of state.
A person who intentionally or recklessly removes, or causes or permits another person to remove a hedgerow commits an offence which, the Magistrates Court carries a maximum penalty of a £5000 fine per hedgerow removed or, in the Crown Court, an unlimited fine per hedgerow removed.
For a no-obligation chat about the possible legal implications of carrying out works on trees or hedgerows, please contact
Pritpal Singh-Swarn.
