Against the law?

Work carried out to a poor standard. Photo WTPL (click to enlarge)

Branches left susceptible to disease

Tree Preservation Orders (TPO) are generally put in place by Local Authorities as a way to protect trees from unauthorised felling or maintenance works. However it seems that in some situations this is not actually true – or there seems to be a difference of opinion on how the legislation should be interpreted.

We recently gave advice to an individual who lived near to a farm that had several trees with TPOs on them, along its boundary. One day this neighbour came home to see that the protected trees had been the recipients of some rather brutal work. It appears that this was carried out without permission from the Council and by someone that was clearly not a professional Tree Surgeon.

Work carried out to a poor standard. Photo WTPL (click to enlarge)

Work carried out to a poor standard.

The first thing that we recommend you do in this type of situation is contact your Local Council as it is a criminal offence for any person to wilfully carry out works to a tree covered by a TPO. The penalties for breaching a TPO can be high – fines up to £20,000 or twice the value of the trees.  So we were hopeful that with such a blatant offence a penalty would be issued.

Unfortunately the Council took a different view to us:

  • The Council took the view that the trees were encroaching onto the farmer’s land and that common law allows for the overhanging branches to be removed.
  • This is true in most cases – however not when the trees are covered by a TPO. Permission to carry out works to a tree is required unless the trees are dead, dying, diseased or dangerous.

If you look in detail at case law there are a couple of additional points to note: 

  • In court it has been shown that a developer cannot argue that a tree is causing nuisance when they own the land that nuisance is said to occur,
  • Nor can they fell a tree which has become dangerous when it was their own actions which made it dangerous.

So, it is fair to apply this legislation and case law to this situation?

  • Yes : the tree was encroaching into the farmers land but it was still covered by a TPO and permission was required for work – the whole point of a TPO!
  • The farmer could have claimed that the trees were causing a ‘nuisance’ and were dangerous.  However this risk must be apparent and likely to have effect in the foreseeable future. 
  • In the unlikely event that there was a risk it could well have been have been caused by the farmer’s actions (potentially by ploughing to close to the trees and cutting through roots), therefore authorisation would still be required to carry out works to the trees. 

As a result of this clearly criminal offence, the concerned neighbour took this up further with the Council who still refused to acknowledge the problem. They appear to firmly believe that the work carried out was allowed as the trees were encroaching onto the farmer’s land. They ignored the prescence of the TPO and also standard of the work that was carried out – this was so bad the trees now desperately need remedial arboricultural works to ensure that they are actually safe.

Despite illegal works to a protected tree the Council refused to take action. Photo WTPL (click to enlarge)

Despite illegal works to a protected tree the Council refused to take action.

We are extremely disappointed that the Council have chosen to ignore such an obvious criminal offence – this is the very reason that TPO legislation was put in place. It is also immensely frustrating that someone who is so passionate about looking after their local trees and woods (a model WoodWatcher!)  is not helped by the very Authority supposed to take action in this type of situation.

We always recommend that the Council are the first point of call for protecting trees. In this case they were not helpful at all and it makes us wonder how many other situations are like this?

Please share your comments with us here…

About Alice Farr

Senior Campaigner - ancient woodland
This entry was posted in Climate Change, England, Protection, Woods Under Threat, WoodWatch and tagged , , , , , , . Bookmark the permalink.

3 Responses to Against the law?

  1. Elizabeth says:

    Can’t follow Kevin’s tortuous comments at all, neither can I see their validity to this point but I do agree with Steve. Assumptions are dangerous. One must remember who pays tree officers’ salaries and also, that currenrly, jobs are in short supply.

  2. W00dburner says:

    I have been involved in a campaign to preserve a bit of wood in urban bristol for the last couple of years. Getting local councillors on side has been crucial. We managed to get the whole wood protected by TPO despite the permission to fell nearly 30 trees having been already granted by a tree officer. To cut a long story short, the officer’s decision was overturned at a council meeting, and a blanket TPO imposed. Tree officers are also essential to get on side, and need to be held to account for actions/lack of actions. It looks as if they aren’t following their own rules in this instance. It appears that tree officers may be left much more to their own devices than, say, planners, yet they can have as much power on occasions, especailly when it comes to development. There’s an assumption that they will always consider the preservation of trees first, but sometimes they are looking at the quality of a tree, and you’d think they were tasked with creating an arboretum rather than any natural feature…

  3. Kevin Wright says:

    Your observation about Local Planning Authority incompetence works both ways. I acted as a cosultant to developers where the late (and unlamented Restormel Boro Council) placed a TPO on a large garden beech tree in 2005 to prevent development of a site that had a Cert of lawfulness (granted by restormel 2 years previously) for a start having been made on a 1972 PP. Of course the legislation is quite clear and a TPO cannot superscede a pre existing pp. Needless to say we felled the tree as Restormel did not want the site dveloped and would not countenance an amended scheme that would retain the tree. Restormel attempted to start criminal procedings by asking the Co Directors in to discuss a way forwrd and then announced they were conducting the interview under ‘Police & Criminal Evidence’, an immediate complaint to the Police of false arrest elicited a most obsequious letter of apology from the CEO. The tree in question had in 1972 been part of an unkempt beech hedge and was not a landscape feature. It is important that when looking at existing trees we see them as a dynamic part of a predominantly man made landscape and conserve the best be it for landscape, amenity, wildlife or important specimen, not preserve everything willy nilly.

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