Karen Jones and Deena Radi, in our Planning & Environmental Law team, explain what a tree preservation order (TPO) is.
What is a TPO?
A tree preservation order (TPO) is an order made under section 198 TCPA 1990 that protects trees in the interests of preserving their amenity value. It is usually made by a Local Planning Authority (LPA) but can also be made by the Secretary of State under section 202 TCPA 1990 and can extend to trees on private property, prohibiting the cutting down topping and lopping of such trees. A TPO can be made only where it appears to an LPA that it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area. When deciding whether a TPO is appropriate, Planning Practice Guidance (PPG) notes that TPOs 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. It may be expedient to make a TPO if the LPA believes there is a risk of trees being felled, pruned, or damaged. Although it is not necessary for there to be immediate risk for a need to protect trees by a TPO, it may be that as a result of development, changes in property ownership or other potential interference, it is appropriate to proactively make TPOs as a precaution in some cases.
A TPO aims to protect specific trees or groups of trees from being cut down, uprooted, topped, lopped, wilfully damaged, or destroyed without a specific written consent from the LPA, as set out in Regulation 13 of the Town and Country Planning (Tree Preservation) Regulations 2012 (SI 2012/605 (TPR 2012)). If any of these actions are carried out without consent, it constitutes a criminal offence under section 210 (1) of the Town and Country Planning Act 1990 (TCPA) and can lead to a fine being imposed. This includes carrying out works to trees that are considered ‘diseased or dying’. The Court of Appeal (Criminal Division) in R. v Alath Construction Ltd. [1990] 1 W.L.R. 1255 held that the offence under subs.(1) is one of absolute liability, the ingredients of which are: (1) that there is a tree preservation order; (2) that the defendant has cut down the tree or carried on the other prohibited activities mentioned in that section; and (3) that those activities were carried on without permission. The burden of establishing that any exemption applies lies with the defendant, who is in a unique position to know the true condition of the tree at the time of his act.
What is the procedure for making a TPO?
A TPO will either be initiated by an LPA when they want an order in place, usually because of a perceived risk e.g., application for a grant of planning permission or it can be made by an LPA as a response to a party who has requested it.
A TPO is initially prepared, signed and sealed by an LPA. This will have an immediate provisional effect from the date that it is made up until either the LPA confirm it, they decide not to confirm it or six months pass, leading to the order lapsing. This is set out in Regulation 4(2), TPR 2012.
After a TPO is made, a copy of it will be made available for public inspection, as well as the order being served on any person “interested” in the land the trees are situated on. An interested person will be an owner, an occupier, or a person that the LPA is aware of, entitled to carry out works to a tree or to surface work minerals at the land. The TPO will be served with a statement of the reasons it was made, information on how it can be objected to, and a deadline to object. This deadline to object must be at least 28 days after the TPO is served.
Before confirming the TPO, the LPA must take into account any validly made objections received It is possible that objections result in modifications to the Order. Once it has been confirmed, the Order must clearly set out whether it was modified at all, as well as the date on which it was confirmed.
How should an objection to a TPO be made?
As Regulation 6 of TPR 2012 sets out, objections relating to a TPO should:
- Be in writing.
- Be delivered and be with the LPA by the deadline set in the TPO.
- Clearly state the specific tree, group of tress or woodlands (as the case may be) that the objection is being made in relation to.
- Clearly state the reason for the objection.
Challenging a TPO
A challenge to a confirmed TPO can only be by way of judicial review. There is no right of appeal. A challenge may only be made on a point of law, rather than the merits of the actual decision. After a TPO has been confirmed, application is made to the High Court to request a TPO be quashed under sections 284 and 288 of the TCPA 1990. A strict six-week time limit applies.
Before you carry out works to any trees, if you have any doubt on the status of the tree, it is always advisable to seek confirmation from your LPA that it is not protected. If advice or assistance is required in obtaining consents required, dealing with a TPO before confirmation by objecting or challenging a TPO made, please do get in touch.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
