Tree Preservation Order Enforcement Policy

Contents

Introduction

The Council’s General Enforcement Policy states that all services within the Department will carry out enforcement according to the Policy, but that individual services may produce detailed service-specific enforcement policies and procedures for their areas of responsibility, which comply with the General Policy. These documents will set out clear standards and procedures for the administration of enforcement. This document sets out the Planning Policy Department’s procedures relating to the enforcement of legislation for the protection of trees.

Legislation relating to the protection of trees

Trees can be protected under the Town and Country Planning Act 1990 and the Town and Country Planning (Trees) Regulations 1999. Guidance on the implementation of the legislation is provided by the former Department of Environment, Transport and the Regions document Tree Preservation Orders, a Guide to the Law and Good Practice, which was published in March 2000.

Trees are protected when they are the subject of Tree Preservation Orders or where they stand in designated Conservation Areas. There are certain exceptions to the protection (for instance trees that are dead, dying or dangerous cannot be protected), but generally the law provides that it is an offence to cut down, uproot, lop, top, wilfully damage or wilfully destroy a protected tree without authorisation.

In the case of a tree protected by a Tree Preservation Order, consent must be granted for any works to the tree following the submission of a formal application to the Local Planning Authority (LPA). Any consent may be subject to conditions and there is a right of appeal to the Secretary of State against the refusal of consent or the imposition of any condition that is considered by the applicant to be onerous.

In the case of a tree in a Conservation Area, six weeks’ notice must be served on the LPA of any proposal to carry out works to the tree. During the six weeks the LPA may grant consent for the works as notified or make a Tree Preservation Order to prevent any works. No conditions may be imposed on any consent. If the Authority takes no action, the works may go ahead as notified on the expiry of the six-week period.

There are two offences, which apply equally to trees protected by Tree Preservation Orders and those standing in Conservation Areas. First, anyone who cuts down, uproots or wilfully destroys a tree, or who lops, tops or wilfully damages it in a way that is likely to destroy it, is liable, if convicted in the Magistrates Court, to a fine of up to £20,000. In serious cases a person may be committed for trial in the Crown Court and liable, if convicted, to an unlimited fine. The Courts have held that it is not necessary for a tree to be obliterated for it to be ‘destroyed’ for the purposes of the legislation. It is sufficient for the tree to have been rendered useless as an amenity.

Second, anyone who carries out works to a tree that are not likely to destroy it is liable, if convicted in the Magistrates Court, to a fine of up to £2,500. Any actions against offences in this category must be brought within six months of the date that the offence was committed.

In order to bring a successful prosecution, the Authority must be able to prove that:

  • the defendant has carried out, caused or permitted works to the tree;
  • the tree was protected; and
  • the works were carried out without the Authority’s consent.

If the defendant claims that there is any exemption from the protection of the tree, it is for him or her to prove, on the balance of probabilities, that exemption applies.

Whenever a tree has been removed in contravention of statutory protection, or because it is dead, dying or dangerous, there is an automatic duty on the landowner to plant a replacement tree of suitable size and species at the same place as soon as he or she reasonably can, unless that requirement is waived by the LPA. The replacement tree is then subject to the same protection as the tree that was lost. If 2 the landowner fails to comply with this requirement, the LPA may serve a Tree Replacement Notice within a period of four years to ensure compliance. There are rights of appeal against Tree Replacement Notices.

There is also some more limited protection relating to trees planted pursuant to conditions of planning permissions. Some planning permissions are subject to conditions requiring the planting and maintenance of trees for a given period, say five years. If these conditions are not complied with, no offence is committed but the LPA is empowered to serve an enforcement notice or a breach of condition notice to secure compliance. There is a right of appeal to the Secretary of State against an enforcement notice.

Procedures for investigating complaints

Incidents involving alleged contraventions of tree protection legislation often come to light as a result of complaints from members of the public or others. Cases can also come to light in other ways, such as during the monitoring of building works on development sites.

When complaints are received alleging unauthorised works to protected trees an initial investigation will normally be carried out within 24 hours. The initial investigation will consist of a check to establish whether the tree at the location described by the complainant is protected, whether any consent has been granted, and, if appropriate, a site inspection to view the state of the tree and any on-going activity. The legislation confers a right to enter land to carry out such investigations and to take samples when necessary.

Where it appears that unauthorised tree works have been an undertaken, full note will be taken during the site inspection to describe the scene. These notes will be used as evidence later. Photographs and samples will be taken as appropriate and a note made of the time and date of the taking of all evidence. In particular, evidence will be taken that might relate to any possible future defence (for instance evidence relating to the health or safety of the tree).

The alleged perpetrator will be contacted as soon as possible in the process, if practicable at the time of the initial site visit. He or she will be asked to give his or her observations on the incident and any relevant background information.

In the course of questioning, the alleged perpetrator will be cautioned as soon as the following criteria apply:

  • it is suspected that an offence has been committed,
  • the person is suspected of committing the offence, and
  • it is apparent that the answers to questions will be required as evidence.

The caution will be issued in accordance with the requirements of the Police and Criminal Evidence Act and the suspect will be advised that he or she is not under arrest, is free to leave at any time and is entitled to legal representation. Where appropriate, the suspect will be invited to the Council offices to undertake a tape recorded interview under caution and under the provisions of the Police and Criminal Evidence Act.

The identity of any complainant will be kept confidential and not disclosed to the alleged perpetrator as far as practicable. It will be made clear to the complainant, however, that if the case comes to Court it is most likely that they will be required as a witness and that in that case they would not normally be entitled to confidentiality.

Investigations of anonymous complaints will be carried out only where it is in the public interest. Anonymous complainants will not have a right to have their complaint fully investigated. Otherwise, complainants who are not anonymous will be kept informed of the course of the investigation and of its outcome.

Complainants and any other witnesses will be contacted as appropriate and requested to provide written statements to be used as evidence in Court. Statements will normally be taken in the witnesses own homes and the witnesses will be 4 informed that they must appear in Court to give their statements and be cross examined as necessary.

Alleged perpetrators will be given adequate and fair opportunity to give their side of events during the course of investigations.

Taking action

Options available to the Council

  • Instituting a prosecution (which may be for destroying the tree or for lesser works to it).
  • Administering a formal caution. This is a formal process whereby the perpetrator signs a statement admitting the offence and submitting to the caution. It may be referred to at the sentencing stage if the same person is ever found guilty of a subsequent offence;
  • Requiring, under section 206 of the Town and Country Planning Act 1990, the planting of a replacement tree for each tree destroyed. This would normally be required additionally if the perpetrator has been prosecuted or cautioned;
  • Serving, under section 207 of the same Act, a replanting direction. This is a formal procedure to secure replacement planting, which can be invoked if the landowner does not otherwise comply with a duty to carry out replacement planting;
  • Taking no formal action. This may be accompanied by informal action, such as advising the alleged perpetrator to ensure that the incident is not repeated.

Decisions about what action to take in cases of unauthorised works to protected trees must be taken in the public interest and each case must be treated on its own merits.

A prosecution will only be brought in cases where there is a good chance of securing a conviction. Before any decision is taken to bring a prosecution, discussions will take place with the Council’s Legal Services team about the strength of the evidence and the possibility of achieving a conviction. This will normally involve the availability of a credible witness to the act and/or an admission under caution from the accused person. Legal Services, in determining whether or not to institute proceedings, will be guided by the facts as uncovered through the evidence submitted to it and in accordance with the Council’s Prosecution Code.

In deciding whether to bring a prosecution, regard will be had to the possible availability to the defendant of a defence that an exemption applied to the protection afforded to the tree, for instance that the tree was decayed or that the works were carried out in the interests of safety. A prosecution will not normally be brought unless the unauthorised works have resulted in detriment to amenity. There may, however, be cases where a more technical breach may be the subject of a prosecution.

In most cases, a prosecution will not be brought if consent would have been granted for the works undertaken, had they been applied for, or where the works have been carried out in accordance with good arboricultural practice or where it is considered that the tree will recover its full health, form and amenity value over a short timescale. Nor will a prosecution normally be brought where any detriment to amenity could be put right within a short period of time by replacement planting. In considering whether to bring a prosecution, regard will be had to the likelihood of the offence being repeated by the accused person or by someone else in similar circumstances. Regard will also be had to any financial advantage perceived to have been gained by carrying out the unauthorised works.

While ignorance of the law is not an excuse, the attitude and circumstances of the accused will be taken into account, including any expression of regret, helpfulness and co-operation with the investigation and any indication that the accused was acting in good faith. Individual personal circumstances and any other mitigating factors will be taken into consideration where appropriate.

Procedures for taking action

In all cases where it appears that unauthorised works have been carried out to a protected tree, a report will be produced setting out the facts of the case and the background. The report will conclude with a recommendation stating what action should be taken, if any, and the reasons for the recommendation will be clearly stated. The report will be compiled by, or have input from, an officer or officers appropriately qualified in planning and arboriculture. 

A decision to prosecute will be made by the Head of Legal Services, based on the evidence on a submitted file from the Council’s Tree Officer and records will be kept of decisions taken and the reasons for them.

Where prosecutions are brought, items of evidence and written witness statements will be obtained by the Council’s Tree Officer, according to advice provided by the Legal Services team, which will also be responsible for all communications with the Court and will represent the Council at hearings.

Formal cautions will normally be issued at the Council offices, by the Council’s Tree Officer under the guidance of the Legal Services team. The offender will be contacted in writing, given details of the offence and an explanation of the significance of the caution, and requested to submit to the caution. Records will be kept of formal cautions issued and will be referred to in court if the offender commits a further offence.

When a decision has been made to issue a formal caution, but the offender refuses to submit to the caution, the case will be reconsidered, including a consideration of whether to bring a prosecution.

When replacement planting is requested or required to mitigate detriment to amenity caused by unauthorised works to protected trees, monitoring will be carried out to ensure compliance.

 Contact Details

If you need any further assistance, please do not hesitate to contact the Planning Team on 01909 533 533 or by email: planning@bassetlaw.gov.uk


Last Updated on Tuesday, June 23, 2020