TPO
Tree Preservation Orders and other tree protection
T
o find out if your trees are protected, contact the local Planning
Authority - usually the local borough, unitary or district Council. If your
trees are protected, you need written permission to remove them, or to do
any tree surgery. If you remove trees or do work to them without permission
you could be prosecuted. You or your tree contractor can usually apply for
work to protected trees on standard forms. There is no charge to apply, and reputable tree contractors will be willing to apply on your behalf if you ask them to do so - they will also probably be able to advise on what will be acceptable and what will not. You will usually receive a decision
within 6 weeks for Conservation Areas and 2 months for TPOs and planning
conditions. If you want to remove trees, you may be required to plant replacements
of the same species and in the same location.
Once a TPO is made it takes
immediate effect.
Not all trees are protected, and, despite 'urban myths' to
the contrary no particular species or size of tree are protected. Any tree
is eligible for protection, regardless of age, species or size. But no trees
are automatically protected. There are three normal ways in which a tree
or woodland might have some been given some sort of legal protection:
- A Tree Preservation Order (TPO) has been made at some time
to cover that tree;
- A planning condition has been made at some time to cover
that tree;
- The tree is within a conservation area (in
fact, this one is not strictly protection but merely requires that the owner
gives notice to the council of their intention to do works).
Tree Preservation Orders (TPOs) are made under the Town and
Country Planning Act 1990 and the Town and Country Planning (Tree Preservation) (England) Regulations 2012.
Planning conditions are normally conditions which are applied when planning
applications affect existing trees - they are normally only temporary (for up to two years) but some last for longer, and indeed some have no time limit at all, so even if your tree is in an area where no planning permission has been granted recently it is worth checking.
Once a TPO is made it takes immediate effect, but
can be confirmed or terminated at any time up to six months' time, with or without
modifications. Modifications can be a change in description or map details,
or a removal of certain trees from the order, but cannot include extra trees
to be protected - if the Authority wants to add trees to the order as originally
made it is usually necessary to make a new Order. The landowner is still responsible
for the trees, their condition and any damage they might cause at all times.
Details of Orders, applications for work and decisions are kept
by the local authority and should be available for public inspection. A landowner
is also served notice if a new order is made on their land. It is normal, but
not required, for other interested parties (for example neighbours, parish councils
etc) to be sent copies of new orders too. There is no requirement for applications
to do work to protected trees to be advertised, although many authorities choose
to do so.
A TPO is made by the local planning authority (usually a local council) to protect specific trees or a particular woodland from deliberate damage and destruction. TPOs prevent the felling, lopping, topping, uprooting or otherwise willful damaging of trees without the permission of the local planning authority. They can be made very quickly and in practice it is possible for a council to make an emergency TPO in less than a day in cases of immediate danger to trees - although obviously the trees need to be worthy and capable of protection anyway. However, if the case is not urgent it can take many months.
Making TPOs is a 'discretionary' power: this means that the
Council doesn't have to do it. It may choose to make them, or it may not. Even
if the most wonderful tree in the area is under threat, there's no legal reason
why the Council has to make an order. But once they've made one, they do have
a duty to enforce it.
If you are interested in getting a tree or woodland protected
you need to approach your local council and discuss it with the tree officer.
Remember, you need their support to be successful, so be polite!
TPOs and planning
It's worth knowing that TPOs are part of the law of planning. If planning permission is granted for a development, and the work will involve felling or working on protected trees, then the planning permission over-rides the TPO. This is because the TPO will have been considered by the planning authority at the time the permission was granted. So if you're hoping to get a TPO made to prevent works which have got planning consent, you're probably not going to succeed, and even if you did it wouldn't make any difference. But if permission is not yet granted, the trees might be something that can be considered by the planning authority. So you need to make sure the planning authority knows about the important trees, and why you think they are worth saving.
If you're wondering how you can get a TPO taken off a tree, or removed, or anulled, or lifted or whatever, then read on carefully. You might be able to get what you want, but revoking the TPO is almost certainly not the way it is going to happen. Note for a start that the only way to completely remove a TPO is for the council to revoke it. Revoking a TPO is a tiresome business, as much work as making a new one, and it is very rare indeed. If it happens at all, the usual reason is if there has been some mistake in the making of the Order and a new one is needed to correct it. It is very, very unusual for councils to revoke TPOs because a landowner asks them to do so. And there's a reason for that. Lifting a TPO at the request of a landowner is rare because the law intentionally provides other far easier and simpler methods of achieving what the landowner wants. If you choose not to use those methods you will need to explain to your council why you will not. And you'd better have a good reason.
Most people who want to revoke a TPO want to do works to trees, or remove the trees. They think that before they can do these works, they need to have the TPO removed. They are wrong about that. If you want to do works to the trees, don't try to remove the TPO. You only need to apply to the council to do the works. If you've got a good enough reason then the local council will allow it. If not, they won't.
And if they refuse unreasonably, there is an appeal process which is set out in the law. And yes, that is (generally) free as well. If you're in any doubt as to how to do this, engage a local tree surgeon who is familiar with the local authority, and get them to put in an application for you (or do it yourself) for which there should be no charge.
If despite all this you still think you want to get a TPO revoked, then there is only one way to do it. You need to persaude your local council that this is a good idea. They cannot be forced to revoke an order, but if they decide to, then they can. So, just like making a new order, you need to approach your local council and discuss it with the tree officer.
Remember, you need their support to be successful, so be polite! And a word of advice, from long experience - if you have not already made an application to do the works you want to do beforehand, and had it refused on appeal, they will probably not take you very seriously.
Although it is possible to make TPOs on any trees, in practice
they are most commonly used in urban and semi-urban settings, for example gardens
and parkland. A TPO is to protect trees for the public's enjoyment. It is made
for the 'amenity' of the tree or woodland, and this can include its nature conservation
value but more often means its visual amenity. However, it does mean that if
a tree is not visible or accessible from a public place - even slightly- a TPO
cannot usually be enforced.
Not all trees are suitable for protection. A TPO may
only be used to protect trees and cannot normally be applied to bushes,
shrubs, or hedges. TPOs can be placed on any trees including hedgerow
trees but not hedges themselves (see Hedgerows
). If
a tree is 'dead, dying or dangerous' then it is normally not suitable
for a TPO either - although defining these conditions is very hard and
often needs expert advice. It is also often the case that a tree is threatened
by development. Once planning consent has been granted, and if that consent
gives implicit or explicit consent to fell or do works to a tree, then
it would be pointless to make a TPO on the tree as a TPO is over-ridden
by planning consent.
.
According to current guidance, the term 'tree' is not defined, for these purposes,
but the High Court has held in 1980 that a 'tree' is anything which ordinarily
one would call a tree. Very helpful. The working definition, in line
with government guidance, is that it should be a single-stemmed woody
perennial plant. This can be a tiny shoot as well as a full-grown tree.
Interestingly, it can therefore exclude multi-stemmed trees such as coppiced
hazel in some circumstances, although it could, on the other hand, arguably
include shrubs which can get to be the size of a tree such as elder and lilac.
Whether it would be appropriate or enforceable to put an order on such
a plant is debatable.
The following are exempt from TPOs and cannot be protected
under an Order, even if one is made.
1. Works approved by the Forestry Commission under a felling
licence
or other approved scheme.
2. Felling or working on a dead, or dangerous tree, or removing dead branches from a living tree (but a tree owner must give at least five working days written notice of proposed work on dead trees, unless there is an
urgent risk to safety)
3. Where there is an obligation under an Act of Parliament.
4. Works at the request of certain agencies or organisations which are specified
in the Order.
5. Works where there is a direct need to work on the tree to allow development
to commence for which detailed planning permission has been obtained
6. Works to fruit trees cultivated in the course of a business for fruit production,
as long as the tree work is in the interests of that business. This means
that fruit trees are not automatically exempt unless they are actively being
used for a business.
7. Works to prevent or control a nuisance
in the legal sense only.
It is also not normal for TPOs to be put upon trees on land
controlled by a local authority, or the Crown. It is possible for trees on local
authority land to have TPOs, but this is an unusual situation.
Another common situation is where a planning application has
been made which includes a 'landscape plan' or some similar provision. If this
plan or description is approved, it can effectively override any TPOs which
exist on the land even if this is not specifically mentioned.
There are (presently) four types of TPO, although any one
Order can contain any number of items which can be of one or more types. The
types are as follows:
1. Individual: can be applied to an individual tree.
2. Group: can be applied to a group of individual trees which, together, make
up a feature of amenity value but which separately might not.
3. Area: a type of TPO not normally made now but still common, as formerly
this type was used frequently. It covers all trees in a defined area at
the time the order was made.
4. Woodland: covers all trees within a woodland area regardless of how old
they are.
TPOs are public documents and can be inspected at the local
planning authority's office, or sometimes online. Attached to the TPO is usually
a schedule and a map. The schedule shows the type/s of TPO which make up the
order, and often gives details of the species of trees affected. However, some
older orders are very vague, saying things like 'Oak, ash ,etc' or 'Deciduous
trees' which is not very helpful. The map gives the location of the TPO, and,
if appropriate, individual trees or areas. In many cases you will need expert
assistance to interpret a TPO map and the Order itself - they are not always
very straightforward, and some older ones are downright mysterious.
Some authorities have up to date and fully documented TPOs,
but some do not. In the case of an ambiguous TPO it is still quite possible
to prosecute based upon the order if it is breached, but there is a greater
risk that the process could become complicated and the outcome might be uncertain.
Because some TPOs are quite old (they can date back to 1949)
some landowners might not know that they have a TPO on their trees. If notice
of the order has not been served on them (and in many cases it has not,
or records of the service were not kept), then they may genuinely be unaware
of the protection. In such a case, although an offence may still have been
committed, it is likely that any penalty would be less severe than otherwise.
However, if at any time a property is sold and a solicitor conducts a search,
as is normal when conveying a property, the existence of the TPO will be
brought to the attention of the owner at that time. In many cases the existence
of a TPO is enough to protect the trees, as the large majority of landowners
are responsible and respect the intention of the Order, even if it is poorly
recorded. A review of the TPO legislation is currently under way (and has
been for quite a few years), and changes are expected, for example the end
of Area Orders.
Conservation
Areas are
areas designated by local authorities for building and landscape conservation,
not nature conservation. The name causes endless confusion but that's life.
To work on certain trees within a Conservation Area a landowner needs to
give six weeks notice in writing to the local authority. If this applies to
you, to find out more about this you should consult your local authority.
Pages marked with this symbol are exclusively written for
Naturenet