When buying a property, trees on the land may not be the first thing on your mind. However, the regulatory status of trees is important because it may affect your ability to prune or remove them.
Who owns the tree?
A tree belongs to the person on whose land the tree was originally planted. If branches overhang your land, you are permitted (unless the tree is protected) to cut the branches back up to the boundary. You do not need the consent of the neighbouring landowner to undertake works to the tree. However the branches (and any fruit on them), still belong to the landowner and they are entitled to ask for them to be returned.
Do I need permission to prune or remove trees on my land?
A Tree Preservation Order (TPO) is an order made by the council’s local planning authority (LPA) in respect of an individual tree, groups of trees or woodland. The aim of a TPO is to give protection to trees that provide amenity value to the public, so if your tree can be viewed or enjoyed from beyond the confines of your garden it could be subject to a TPO.
How do I find out if trees on my land are subject to TPOs?
You can check whether a tree on your property is subject to a TPO by checking with your LPA. Some council websites show all TPOs registered within their boundaries, while others require enquiries on TPOs sent by post or email. A local search will also reveal whether a TPO affects the property. If there is a TPO affecting a tree on your property, then the LPA’s permission must be sought if to perform any works to the tree. This includes a range of works from cutting a branch to felling the tree completely.
What happens if I don’t have the correct consent?
If works are undertaken to a tree protected by a TPO without the necessary consent then a criminal offence is committed. Works that can lead to an offence include:
- Cutting down, uprooting or wilfully destroying a tree;
- Topping, lopping wilfully damaging a tree in a way that is likely to destroy it; or
- Causing or permitting such activities.
The consequence of being convicted is an unlimited fine, which can have regard to any financial benefit which has accrued as a result of the offence. This is is a “strict liability” offence, meaning that you do not have to know that the tree is protected by a TPO, so it is always worth checking before works are carried out.
In addition, if there is a contravention of a TPO this is also an offence and the person in breach can be fined up to £2,500.00.
What if the tree is in a conservation area?
In addition to the TPO regime, conservation areas must also be considered. Conservation areas were created to protect designated areas of special architectural or historic interest. Trees within this area that are not subject to a TPO still require involvement of the LPA if works are to be undertaken. Notice must be served on the LPA at least six weeks prior to any proposed works or felling being carried out. This notice, as required by section 211 of the Town and Country Planning Act 1990, does not need to be in any prescribed form, although it must sufficiently identify the tree and outline the proposed works. The LPA then has six weeks to decide whether the tree in question should be protected by a TPO. Works on the tree should then be carried out within 2 years of notice being given.
A section 211 notice does not need to be issued where the works would be permitted under a TPO, or are being carried out under approved forestry operations or where the works are being carried out by or on behalf of the LPA. Works to small tress (less than 75mm in diameter) are also exempt from the notice requirements.
It is a criminal offence to carry out works on a tree in a conservation area where notice is required and has not been given. If a tree is removed in a conservation area without consent, the landowner is obliged to replace any uprooted tree with another tree of appropriate size and species, and if an alternative tree is not planted within four years of removal, the LPA can serve a tree replacement order on the land owner. Should a replacement order be served, and the land is sold within this four year period, then the new owner assumes liability, as landowner, to replace the tree.
Finally, if you own land that does not form part of a garden of a residential dwelling, then you will also need to consider whether a felling licence is required from the Forestry Commission. There are certain exemptions to the requirement for a felling licence, for instance lopping and topping of trees is exempt, but you should always check prior to undertaking any felling activity.
If you would like us to check whether a tree on your land is subject to a TPO, or if you would like assistance with any other land or property transaction please do not hesitate to contact our Real Estate department who will be happy to help. Either visit https://www.herrington-carmichael.com/contact/, email your query to realestate@herrington-carmichael.com or call 01276 686222.
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e: daniel.york@herrington-carmichael.com
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