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Tree Hugging: What is the law surrounding protected trees and conservation areas?
Barely a month goes by without a local newspaper recording the infringement of a Tree Preservation Order (TPO). These are often accompanied by protestations from the accused claiming they had no idea that a TPO was in place and, more frequently, detailing the fines imposed against them.
TPOs give local planning authorities the power to protect and preserve individual trees and woodlands in the interest of amenity. However, given the amount of prosecutions brought by local councils, it appears that this piece of legislation may not be fully understood by the public. So, what are the rules and regulations surrounding TPOs?
The following works are prohibited without the local planning authority’s consent if a tree or woodland is subject to a TPO: felling; topping; lopping; uprooting; wilful damage; and wilful destruction (“prohibited activities”). Prohibited activities include work to tree roots, and any consent granted for prohibited activities may be subject to conditions.
Applying for consent?
Residents must follow strict procedural requirements to obtain local authority consent for prohibited activities to a protected tree and failure to comply may delay the time for consent being granted. For example, the standard application form must be used and the matter will not be progressed until compliance has been validated by the authority. Validation will usually take around three working days and the final decision should be issued within eight weeks.
There are limited exceptions when consent is not required for prohibited activities to protected trees. This includes works necessary to implement a full planning permission or where the tree presents an immediate risk of serious harm. If practicable, it is worth checking with the local authority beforehand that an exception applies in order to avoid committing an offence and be subjected to enforcement action and a hefty fine.
Accordingly, it may be worth contacting a qualified tree surgeon to advise and assist you with carrying out the prohibited activities, and to guide you through the application process.
What if you are refused consent?
An appeal to the planning inspectorate is possible if the local authority refuses consent to the proposed prohibited activities for a protected tree. Appeals must be filed within 28 days of the authority’s decision or, in the event of non-determination, at any time after the required 8-week determination period.
Additionally, you may be entitled to compensation from the local authority should you suffer loss or damage resulting from consent being refused or granted with conditions. Such compensation claims must exceed £500 and be made within 12 months of the authority’s original decision or any appeal decision. There are strict limitations to an authority’s liability to pay compensation.
Therefore, it is important to seek expert legal advice as soon as possible to decide whether to appeal and/or seek compensation.
How about conservation areas?
Protection is afforded to all trees in a conservation area, including those not subject to a TPO. In such cases, and unless a limited exception applies (including size thresholds), residents are required to first serve a ‘Section 211 Notice’ on the local planning authority, giving six weeks advance notice of the proposed tree works. The authority then has six weeks from the date of the notice to decide whether to make a TPO on the subject tree.
If no decision is made within the notice period, or a TPO is declined, the tree works may proceed within two years. If the local authority decides to make a TPO then you cannot appeal (save for a judicial review) but you can appeal the subsequent refusal of consent for prohibited activities under the TPO as discussed above. A right to compensation may similarly arise.
Accordingly, should the local authority decide to make a TPO on your tree, it is important to seek expert legal advice as soon as possible to decide whether to pursue a judicially review, appeal a subsequent consent refusal, and/or seek compensation.