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.
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.
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?
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