Tree Preservation Orders, Trees in Conservation Areas and Hedgerows

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Chapter 22

Tree Preservation Orders, Trees in Conservation Areas and Hedgerows

TREE PRESERVATION ORDERS AND TREES IN CONSERVATION AREAS

Relevant law

22.1 Special controls over trees can be found in Part VIII (sections 197 to 214D) of the Town and Country Planning Act 1990 (TCPA 1990) (as amended) and in the Town and Country Planning (Tree Preservation) (England) Regulations 2012 (2012 Regulations).¹Section 192 of the Planning Act 2008 made further amendments to the TCPA 1990 which allowed for the transfer of provisions from within existing Tree Preservation Orders (TPOs) to regulations. Part 6 of the Localism Act 2011 (LA 2011) also amended section 210 of the TCPA 1990 concerning time limits for proceedings in regard to non-compliance with TPO regulations.

22.2 For policy guidance (updated on 6/3/2014), see the National Planning Practice Guidance (NPPG) in the section ‘Tree Preservation Orders and trees in conservation areas’.²

Local planning authority’s duty

22.3 Local planning authorities (LPAs) are under a general duty to ensure (whenever necessary) that when granting planning permission they make adequate provision, by the imposition of conditions, for preserving and protecting

¹SI 2012/605. For Wales, see the Town and Country Planning (Trees) Regulations 1999 (SI 1999/

1892). TPOs made before 6/4/2012 continue to protect the trees and woodlands they cover. The legal provisions listed in TPOs made before 2012 have, however, been cancelled and replaced by the provisions contained in the 2012 Regulations. There is no need for pre-2012 orders to be remade, amended or reissued.

²NPPG at Paragraph: 001 Reference ID: 36-001-20140306 to 36-172-20140306.

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trees.³They also have power to make TPOs in the case of specific trees or woodlands.⁴A TPO may be made and confirmed by a TPO in the form prescribed in the Schedule to the 2012 Regulations or in a form substantially to the same effect.⁵

What is a TPO?

22.4 A TPO is an order made by an LPA⁶in England (and authorities can initiate this process themselves or in response to a request made by any other party) to protect specific trees, groups of trees or woodlands if it appears to them to be ‘expedient in the interests of amenity’.⁷An order prohibits the:

cutting down, topping,

³TCPA 1990, s 197.

⁴TCPA 1990, s 198. The power arises where ‘it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area’. 2012 Regulations, reg 3 and Sch 1 provide for a TPO to be made in respect of: (a) single trees; (b) a group of trees; (c) an area on a map; and (d) a woodland, which will also require careful designation on a map.

⁵2012 Regulations, reg 3. The TPO will take effect provisionally on the day it is made until: (a) the expiry of six months; (b) the date when the order is confirmed; or (c) the date on which the authority decides not to confirm the order, whichever first occurs (reg 4). The procedure after making an order and the process involving objections and representations can be found in reg 6. The procedure for confirmation of a TPO (which may occur with or without modifications) can be found in reg 5. The process of publicising the confirmation of the TPO, together with the action which must be taken where the TPO is not confirmed and with the variation and revocation of such orders, can be found at regs 8–11. By reg 12, every LPA shall keep a register containing details of every application for a TPO and the authority’s decision in relation to each such application, of appeals and their determination by the Secretary of State, and details of any conditions with respect to replanting attaching to any consent granted under reg 17(1).

⁶County councils can make TPOs but there are restrictions in areas where there is both a district planning authority and a county planning authority. In these areas the county council may only make an order: (a) where necessary in connection with the grant of planning permission; (b) on land which is not wholly lying within the area of a single district council; and (c) on land in which the county council holds an interest.

⁷The term ‘amenity’ is not defined in law, so authorities need to exercise judgment when deciding whether it is within their powers to make an order. Orders should be used to protect selected trees and woodlands if their removal would have a significant negative impact on the local environment and its enjoyment by the public. Before authorities make or confirm an order they should be able to show that protection would bring a reasonable degree of public benefit in the present or future (see NPPG at Paragraph: 007 Reference ID: 36-007-20140306). When considering whether trees should be protected by an order, authorities are advised to develop ways of assessing amenity value of trees in a structured and consistent way, taking into account the criteria mentioned in NPPG at Paragraph: 008 Reference ID: 36-008-20140306 under the headings: (i) Visibility; (ii) Individual, collective and wider impact; and (iii) Other factors relevant to an assessment of amenity value such as the importance to nature conservation or response to climate change which factors alone would not warrant the making of a TPO.

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lopping, uprooting,
wilful damage, and wilful destruction,

of trees without the LPA’s written consent. If consent is given, it can be subject to conditions which must be followed.⁸The Secretary of State’s view is that cutting roots is also a prohibited activity and requires the authority’s consent.

What are the tree owner’s responsibilities?

22.5 Owners of protected trees must not carry out, or cause or permit the carrying out, of any of the prohibited activities without the written consent of the local authority. As with owners of unprotected trees, they are responsible for maintaining their trees, with no statutory rules setting out how often or to what standard. The LPA cannot require maintenance work to be done to a tree just because it is protected. However, the authority can encourage good tree management, particularly when determining applications for consent under a TPO. This will help to maintain and enhance the amenity provided by protected trees. It is clearly important that trees are inspected regularly and that necessary maintenance is carried out to make sure that they remain safe and healthy.

Challenging a TPO

22.6 A TPO is subject to challenge in the High Court.⁹In response to an application for consent to cutting down, topping, lopping or uprooting of any tree in respect of which a TPO is in force,¹⁰the authority may, as indicated, grant consent conditionally or unconditionally (which consent shall be valid for a period of two years and will run with the land, and the works for which such consent is granted may only be carried out once), or it may refuse consent.¹¹

Where consent is refused or is granted conditionally or, in the case of the nondetermination of an application to fell, etc. within a period of eight weeks beginning with the date on which the application was received by the authority, there is a right of appeal to the Secretary of State.¹²Any appeal should be made

⁸2012 Regulations, reg 13.

⁹Under TCPA 1990, s 288, within six weeks from the date when the order is confirmed (s 284(1)(e) and (2)(c)).

¹⁰Made in accordance with 2012 Regulations, reg 16.

¹¹See 2012 Regulations, reg 17.

¹²See 2012 Regulations, reg 19(1).

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within 28 days from the date of receipt of the authority’s decision or such longer period as the Secretary of State may allow.¹³

Compensation for refusal of consent to fell

22.7 If a person establishes that loss or damage has been caused or incurred as a consequence of the refusal of any consent required by the 2012 Regulations,¹⁴

or the grant of any consent subject to conditions, or the refusal of any consent, agreement or approval required under such a condition, that person shall be entitled to compensation from the authority.¹⁵However, no claim may be made:
(a) if more than 12 months have elapsed since the date of the authority’s decision or, where the decision is the subject of an appeal to the Secretary of State, the date of the final determination of the appeal; or (b) if the amount in respect of which the claim would otherwise have been made is less than £500;¹⁶nor will any compensation be payable (c) for loss of development value¹⁷or other diminution in the value of the land; or (d) for loss or damage which was not reasonably foreseeable when consent was refused or was granted subject to conditions; or (e) for loss or damage reasonably foreseeable by that person and attributable to that person’s failure to take reasonable steps to avert the loss or damage or to mitigate its extent; or (f) for costs incurred in appealing to the Secretary of State against the refusal of consent required under the Regulations or the grant of any such consent subject to conditions.¹⁸Questions of disputed compensation are determined by the Upper Tribunal.¹⁹

¹³See 2012 Regulations, reg 19(2) (which also deals with the time for appealing in cases of nondetermination). TCPA 1990, Sch 6 (determination of certain appeals by persons appointed by the Secretary of State) shall apply to appeals under reg 19. A copy of the notice of appeal should also be sent to the LPA at the same time as the appellant gives written notice to the Secretary of State who will thereafter supply an information questionnaire to the authority (reg 21) and may also seek other information from the parties as necessary (reg 22). Determination by the Secretary of State is to be in accordance with reg 23, in that the appeal may be allowed or dismissed, or any part of the...