1 Power to Make Tree Preservation Orders
12.188 The local authority has power to make a Tree Preservation Order (‘TPO’) if ‘it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area’.279 In Scotland a TPO can also be made to protect trees or woodland of historic or cultural significance.280 A TPO can apply to individual trees, to groups of trees or to woodlands, and can prohibit the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees otherwise than with the consent of the local planning authority.
A TPO cannot, however, prohibit the cutting down, uprooting, topping or lopping of trees which are dying or dead or which have become dangerous.281 In England the form and contents of a TPO and the procedure for making and confirming orders, are now governed by regulations made under powers introduced in the Planning Act 2008. The law is now set out in ss 202A–202G, Town and Country Planning Act 1990 and The Town and Country Planning (Tree Preservation) (England) Regulations 2012.282 The form in which orders must be made is specified in the Schedule to the 2012 Order. The following discussion focuses on the 2012 Order.12.189 When a local authority makes a TPO it takes effect provisionally, but must be confirmed within 6 months. A copy of the order must be served on every person interested in the land affected by the order, with a statement specifying the reasons for the making of the order and informing them that they can make written objections within 28 days of the making of the order.283 When confirming a TPO the local authority must consider all objections that have been submitted within the time allowed, and can confirm the order with or without modifications. The confirmation of the order must be notified to all interested parties as soon as practicable after it is made, and there are provisions for the subsequent variation and revocation of TPOs which must proceed subject to similar rules for notification and objections.284
12.190 The local authority must keep a register of all TPOs that includes information on every application for consent under a TPO and its decision in respect thereof, a statement of the subject matter of every appeal under an order and details of any conditions with respect to replanting attached to consent to works taking effect under a TPO.285 The register must be made available for public inspection at all reasonable hours.
12.191 Neither the 1990 Act nor the 2012 Regulations offer a definition of what constitutes a ‘tree’ for these purposes. The courts have taken a common sense approach, upholding the validity of TPOs that are applied to any growth (such as a coppice) that could properly be called a ‘tree’ in common parlance, as opposed to a shrub or bush.286 In Palm Developments Ltd v Secretary of State287 it was held that there is no minimum size requirement for a ‘tree’ to come within the TPO powers, and that saplings could therefore be protected by a TPO. It was also held, furthermore, that in the context of ‘woodland’ TPO the order could extend to protect not only those trees existing at the time that the TPO was made, but also future growth by way of regeneration of the woodland. So saplings that grow naturally in the future would also be protected, as would small trees planted to enhance the wood. The purpose of a TPO in this context is to protect the ‘undifferentiated mass of trees in the specified area’ covered by the TPO, and not solely those trees existing at the date of the order – if it were otherwise the order would cease to have effect once those trees had died out, a conclusion that was not intended by the legislature in enacting these powers.288
12.192 The scope and application of a TPO will depend upon the terms of the order itself. The activities prohibited by a TPO are, however, standardised and are specified in the 2012 Regulations. It is forbidden to cut down, top, lop, uproot, wilfully damage or wilfully destroy any tree to which an order applies, otherwise than with the written consent of the planning authority. The authority’s consent can be given with or without conditions,289 and if conditions are imposed it is also forbidden to undertake any of the prescribed activities otherwise than in accordance with the conditions specified in the TPO.
12.193 A number of exceptions are set out in the 2012 Regulations290.
It is not prohibited to cut down lop or uproot a tree which is dead, or to remove dead branches from a living tree. Neither is it prohibited to do such works if this is ‘urgently necessary to remove an immediate risk of serious harm’, or if it is necessary for the abatement of a nuisance. Dead trees may provide an important habitat for some protected species of bird or animal, however, and if this is the case their removal may require permission from Natural England. It is not prohibited to remove branches from a tree cultivated for fruit. Special exceptions apply to permit statutory undertakers – such as the water, sewage, and electricity or gas utilities – to lop or remove trees on operational land where this is necessary for the purposes of inspection or for the operation of the undertaking.29112.194 Carrying out a proscribed activity without written permission, or in breach of the conditions attached to a consent granted by the local authority, is a criminal offence.292 The offence is one of strict liability, and it is not necessary to prove that the accused knew that the tree in question was subject to a TPO. The penalties are potentially severe: an unlimited fine if convicted on indictment, or a fine not exceeding £20,000 on summary conviction. The court must take into account any financial benefit that has accrued, or will accrue, to the offender as a consequence of the offence having being committed.293 The Planning legislation in both Scotland and in England and Wales also imposes a duty on the landowner to replace any trees removed uprooted or destroyed in breach of a TPO or in contravention of the terms of a consent issued by the local authority under a TPO.294 The replacements must be of an appropriate species and planted at the same place as those destroyed or at such another place as may be agreed with the local authority. In England the obligation to replace trees can be enforced by the local authority within four years of this occurring.295
12.195 Compensation is not payable for the making of a TPO.
It can, however, be claimed for losses flowing from a refusal of consent to carry out operations under a TPO, or for the effect of conditions attached to a consent.296 The rules now applicable in England are restrictive.297 Compensation cannot be claimed for any loss if more than 12 months has elapsed since the authority’s decision, and in respect of any loss of less than £500. Neither can compensation be claimed for any loss of development value or any other diminution in the value of the land, for any loss or damage that was not reasonably foreseeable when consent was refused or granted subject to conditions, or in any case where the claimant failed to take reasonable steps to avert the loss or to mitigate its extent. Where a loss arises as a result of a refusal of a licence to fell trees in the course of a forestry operation, compensation is payable to the owner of the land, but is limited to the depreciation in the value of the trees that is attributable to the deterioration in the quality of the timber attributable to the refusal (and not, in other words, a loss in their market value).