Why Developers need to take Tree Preservation Orders seriously

The importance the law places on upholding Tree Preservation Orders (TPO) should never be underestimated, as North Northampton Council and developers Stanton Cross LLP found to their detriment recently, when the High Court found that 16 ancient lime trees had been unlawfully felled to prepare for the expansion of an access road.

Despite a Tree Preservation Order (TPO) being in place, the Wellingborough Borough Council approved road expansion plans in 2008 that included the removal of around 50 trees, some of which were between 100 and 400 years old. Sixteen of the trees were subsequently felled in February 2023, leading to legal action by the Wellingborough Walks Action Group (WWAG), who argued that the council failed to meet ‘pre-commencement conditions’ required before tree removal could begin.

The North Northamptonshire Council (NNC) and Stanton Cross Developments LLP defended the tree removal as necessary for the approved development, and contended all pre-commencement conditions did not need to be ‘discharged’ to enable work to begin.

However, Deputy High Court Judge Dan Kolinsky KC sided with WWAG, ruling that the council inappropriately and incorrectly authorised the work and further approval was indeed needed for felling the protected trees.

The ruling has resulted in costly delays to the £1bn Stanton Cross development, which is earmarked to provide 3,650 new homes, as new, revised planning permissions are sought to better represent the need to facilitate the necessary infrastructure whilst also protecting the local environment.

What is a Tree Preservation Order?

A Tree Preservation Order is typically issued by a local planning authority, to safeguard specific trees or woodlands from intentional harm. This protection extends to activities such as felling, lopping, topping, uprooting, or any form of deliberate damage.

TPOs are applicable to individual trees or entire woodland areas, and can include hedgerow trees, though not to entire hedgerows. These orders are commonly utilised in urban and semi-urban environments where trees contribute to the aesthetic appeal and overall value of the community.

It is considered a criminal offense to carry out or allow any prohibited activities on a tree covered by a TPO without written consent from the local authority. The process for seeking consent is similar to making a planning application.

What are the consequences of breaching a Tree Preservation Order?

Violating a TPO can result in significant penalties, depending on the severity of the breach. Failure to seek and obtain permission may lead to prosecution by the local authority, potentially resulting in fines ranging from £2,500 to £20,000 (with the possibility of unlimited fines if the breach results in the tree’s destruction).

Those responsible for breaching a TPO may also face prosecution under the Proceeds of Crime Act if they are deemed have financially gained from the breach. For instance, if the act of removing or destroying a tree enhances light provision or views from a property, subsequently increasing its resale value, the courts can demand the recovery of financial benefits obtained through the violation of a TPO.

What options does a developer have if there is Tree Preservation Order in place?

All tree preservation orders issued are registered by local authorities and are available for inspection at the planning office. Such information is usually revealed to developers during local land searches upon the acquisition of a site.

For developers considering sites with established trees or wooded areas, early consultation with an arborist is crucial as part of due diligence. Arborists can provide insights on how local planning authorities may approach protected trees on-site.

The presence of a TPO does not automatically prevent development from happening but rather ensures that any necessary tree works are carried out in a responsible and sensitive manner.

If planning permission is obtained for a site and the application includes felling a tree protected by a Tree Preservation Order (TPO), the planning permission takes precedence over the protection provided by the TPO. With detailed planning consent, developers can perform any tree works necessary to implement the permission. However, this right only allows cutting down or cutting back protected trees if they obstruct the development. It does not permit tree removal merely for convenience.

Nonetheless, if a TPO-protected tree needs to be felled, the landowner must replace it, even if the tree is dead, dying, or dangerous. The replacement tree must be of an appropriate size and species, and planted in the nearest practicable location, as soon as reasonably possible.

If the land is resold before replanting, the new owner inherits this responsibility for replacement. The new tree will be protected by the original TPO, and the council will update the TPO as needed to reflect any changes in tree location or species.

Remember that even if a tree is not covered by a specific TPO, it still has protection if located in a conservation area. In these circumstances, the local planning authority will require six weeks’ notice in advance of any proposed tree maintenance required. This essentially provides the authority with the chance to decide whether a TPO protecting specific trees is necessary.

How are tree preservation orders granted?

Anyone can apply to have a tree preservation order placed on a tree if there is genuine, sufficient reasoning to do so. Even if a tree is not currently protected it may become so quite swiftly, as any discussions with planning authorities about commercial or residential developments can trigger closer examination of a site and result in new TPOs being put in place.

Local planning authorities can issue TPOs if they find the trees valuable for the community, initially providing provisional protection for six months. Within this period, the authority can then decide whether to confirm the order, granting long-term protection, or revoke it. During the initial six months, and the local authority must consider all objections and representations.

In summary

It’s important not to take risks with TPOs. Developers should consult with legal and environmental experts to ensure full compliance with TPOs as this will protect both their business and the environment.

Paying attention to TPOs is not just a legal requirement – it’s a commitment to responsible and sustainable development. For further guidance and expert advice, contact the experienced team at Newmanor Law for an impartial consultation.