Tree Preservation Orders – property developers, ignore them at your peril

A recent case has highlighted the risks posed to property developers by Tree Preservation Orders (TPO), this article sets out the facts of the case and provides out some guidance to help developers who have a site that is a subject to a TPO.

This article first appeared in Estates Gazette, 6 July 2019.

What were the facts of the case and what do property developers need to know?

Who would think that pruning a tree could trigger a claim under the Proceeds of Crime Act? Certainly not the homeowner in Canford Cliffs, near Poole in Dorset who was recently prosecuted in what is believed to be one of the first cases where the Proceeds of Crime Act was used following a breach of a Tree Preservation Order (“a TPO”).

The owner who was apparently frustrated by the shade that a 42ft Oak tree created over his south west facing garden decided to take matters into his own hands and cut back 12ft long branches so to allow the sunlight back into his garden.  The tree was protected by a TPO and the owner had failed to obtain the necessary consent for carrying out the works.

Experts were less than impressed and believe that by doing so the tree was unlikely to recover. As well being found guilty of breaching the TPO, prosecutors also argued successfully that the owner should be prosecuted under the Proceeds of Crime Act which gives courts the right to recover financial gain earned by committing a crime. The court heard evidence as to the value that was added to the owner’s property as a result of his illegal action and ordered the owner to pay almost £40,000, including £21,750, being the court’s assessment as to the value which was added to the property by removing the tree.

What is a Tree Preservation Order?

A tree preservation order is an order made by a local planning authority to protect trees (either individual or groups of trees or woodlands). Generally they are trees that can be seen from public spaces and add amenity value to the local community.

If a tree or trees are subject to a TPO then the owners may not carry out or allow the carrying out of any of the prohibited activities without the written consent of the local planning authority. Homeowners have to apply for consent from the local planning authority (in a manner which is not dissimilar to a planning application) in order to carry out those works.

The definition of prohibited activities is quite wide with only limited exceptions. They include all the usual tree maintenance activities such as pruning branches, reducing crown heights etc and not only the removal of the trees.

It is a criminal offence to breach a TPO. Broadly, if the breach is likely to lead to the tree being destroyed, the offence is subject to an unlimited fine. All other breaches are subject to a fine of up to £2,500. It is in these circumstances that the powers provided by the Proceeds of Crime Act can significantly increase the financial consequence of the breach.  It seems clear that the courts will not allow the party to benefit financially from the breach.

What should a developer do?

If a developer is considering a site where there are significant trees then an early consultation with an arborist is advised as part of the developer’s due diligence.  They can often offer advice as to what approach a local planning authority will take in relation to protected trees on site.

How do you know if a site is subject to a TPO?

Local authorities keep a register of all tree preservation orders which are issued and this can be inspected at the local planning office but would also be revealed in a local search on acquisition.

How can a tree preservation order be granted?

Bear in mind that even if a tree is not currently protected it may become protected in the near future. Discussions with planning authorities can trigger new TPOs to be granted.  A local planning authority has the right to make a tree preservation order if they consider that trees have amenity value. It will serve notice on the owners or anyone with an interest in the land in which the tree is situated.  The order will initially be provisional and last for six months unless the planning authority either confirms the order to provide long term protection or decides not to confirm this.

What should you do if you become aware of a TPO being made?

You are entitled to object or comment on a new TPO and the local authority must take into account all duly made objections and representations.

What about conservation areas?

Bear in mind that some trees are protected if they are in a conservation area even if not subject to a specific TPO.  If you are proposing to carry out works on trees of a certain size you have to give your local planning authority six weeks’ notice before carrying out the works.  This effectively gives the authority the opportunity to consider whether an order should be made to protect those trees in which case you would then have to follow the TPO process.

Can TPOs prevent development?

The existence of a TPO will be taken into account as part of the planning process but will not automatically prevent development. However, once the consent is granted, insofar as works for trees are necessary to implement a planning permission (a detailed planning consent rather than an outline planning consent) the developer is entitled to carry out those tree works that are necessary in order to implement the planning permissions.  This right is though limited.  You can only cut down or cut back protected trees if they are directly in the way of development. So this might help if the tree is on the proposed accessway but it does not give consent where it is desirable but not necessary to remove the trees (for example because of the shade they create).

Points to consider

• Take the TPOs seriously. A breach is a criminal offence and the courts have shown that they will not allow a party to benefit from their crime.
• Do your due diligence. It is easy to find out if a property is affected by a TPO.
• Remember that Planning Authorities are prepared to issue new TPOs when they come to their attention especially in the context of development.