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Tree Preservation Orders and other tree protection
The full definitive guide to TPO law and practice can be found at the government's Communities and Local Government site:
This link changes a bit so if you can't find it, click here and search for the key word TPO.
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:
Tree Preservation Orders (TPOs) are made under the Town and Country Planning Act 1990 and the Town and Country Planning (Trees) Regulations 1999. 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 is usually takes immediate effect.TPOs can be placed on any trees including hedgerow trees but not hedges.
Once a TPO is made it is usually 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from the order, but cannot include extra trees to be protected - if the Authority wants to add trees to the order as originally made it is usually necessary to make a new Order.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.
How can I get a TPO put on a tree?
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.
How can I get a TPO lifted?
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.
Which trees can be protected?
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.
ExemptionsThe 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, dying or dangerous tree.
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.
TPO typesThere 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 AreasConservation 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.