Tree preservation orders: all change

Village green iStock 000009004124XSmall 146x219Charles Mynors takes a look at recent changes to the rules relating to tree preservation orders.

The system of protecting trees by means of tree preservation orders (TPOs) has been in existence, more or less unaltered, for almost 70 years. And many of the orders themselves are now fairly ancient.

But this all changed on 6 April 2012, when radically revised sections 198 to 210 of the Town and Country Planning Act 1990 were brought into force, along with the Town and Country Planning (Tree Preservation) (England) Regulations 2012. These introduced a completely new system to protect trees of special value: in future the rules will all be in the Regulations, and the order itself will simply specify which trees are affected.

New orders, made after that date, will therefore be much shorter and simpler. As for an order made before that date, its contents can now be safely ignored, except insofar as it specifies which trees are protected.

Key points

  • Householders and others need consent for all works to trees protected by TPOs. And planning permission for new development is more difficult to obtain where it involves the loss of protected trees.  
  • The new system of TPOs will be simpler, with less paper; and may lead to more orders being made.  
  • Meanwhile, trees protected by pre-1999 orders will in effect benefit from the new system introduced in 1999.

Introduction

Almost all building works and changes of use require planning permission – regardless of the value or significance of the land in question. But not all works to trees need consent. However, there has for over half a century (since 1943) been in place a system whereby a local planning authority is able to protect a particular tree or group of trees or woodland by making a tree preservation order that requires consent to be obtained for any works to it – in particular, felling, lopping or topping.  

Until now, the system has been somewhat complex, in that some of the rules were in the Act itself, some were in Regulations made under the Act, but most were in the order itself. That had several major disadvantages:

  • it was not clear where to find particular rules;
  • the order was very lengthy and complex, as it contained most (but not all) of the rules as to precisely when consent was required, how it could be obtained, and when compensation could be obtained if consent was not forthcoming; and
  • any changes to the rules would (generally) not apply to existing orders, so that the precise rules would vary according to when the order was made.

So, for example, the exemption from the need for consent to be obtained for works to dead and dying trees was in the Act; the exemption relating to fruit trees was in the order itself (and varied according to when the order was made). And every tree preservation order solemnly listed a large number of such exemptions – even the one relating to works by the Lee Valley Conservancy Catchment Board (abolished in 1974) – which led to each order being lengthy and bureaucratic.  

As for changes to the law, the entitlement to compensation for the refusal of consent under a TPO was significantly amended in 1999; but the old rules survived in relation to any order made prior to that date.  

The new system

All this has now been swept away. Section 192 of the Planning Act 2008 has effectively introduced a completely new version of sections 198 to 210 of the Town and Country Planning Act 1990. The 1990 Act thus now provides that the Secretary of State can make regulations that, in effect, will set up a new, free-standing system of control – somewhat similar in concept to the Control of Advertisements Regulations. New regulations made under these powers – the Town and Country Planning (Tree Preservation) (England) Regulations 2012 (SI 605) – came into force on 6 April 2012. They follow almost exactly the draft regulations issued for consultation in September 2010, some 18 months earlier.  

Under the new system, any tree preservation order made on or after 6 April 2012 will be made following the model order set out in the Schedule.

The order will thus specify the trees, groups or woodlands to which it relates, by reference to a schedule and a plan (if in doubt, the plan takes precedence). And it will note that its effect is that:

  • consent must be obtained for the carrying out of almost any works to any of those trees or to any tree in any of those woodlands – in particular cutting down, topping, lopping, uprooting, wilfully damaging or wilfully destroying it or causing or permitting any such works – subject to the many exceptions set out in the Regulations; and
  • where consent is required, it must be obtained from the planning authority or from the Secretary of State on appeal.

Of course other consequences flow, even though they are not stated. But that is all that will actually be in the order.

The key feature is that the details of when consent under an order is required, the way in which that consent can be obtained, and all that flows from that, are now all in the Regulations, and not (as hitherto) in the order itself. This means, first, that an order made under the new procedure will be much shorter than a traditional one. And secondly, if any of the detailed provisions change in the future – for example, as to one of the exemptions from the requirement for consent – the change will be introduced by an appropriate amendment to the Regulations, which will then automatically apply to all orders, whenever they were made.  

Existing orders

In relation to orders that were already in force at 6 April 2012, section 193 of the 2008 Act provides that any such order will have effect with the omission of all of its provisions other than those identifying the order or the trees, groups of trees or woodlands to which it relates.  

Any order made prior to that date (even if confirmed subsequently) will therefore be need to be read simply omitting all the detailed provisions as to when consent is required, the procedure to obtain consent, and the consequences of failing to obtain it. That in turn means that, as with a new-style order, the details as to the need for consent under an old order, and the way in which that consent can be obtained, and all of the various consequences that flow from that, will all be provided for in the Regulations, and no longer in the order itself. And again, if any of the detailed provisions in the Regulations change, the changes will automatically apply to all orders, whenever they were made.  

Other changes

In future, all tree preservation orders will automatically come into effect as soon as they are made, without a special direction to the effect having to be included (although in practice almost all orders did in fact contain such a direction anyway). But they will in future automatically lapse if not confirmed within six months.

Thus consent under an order is needed for any works to a protected tree, subject to numerous exceptions, now all listed in a clumsily drafted regulation 14. The major change is that, whereas consent is still not required for works to trees that are dead, it will in future be required where the tree in question is merely “dying”.  

And where a protected tree is dangerous, only urgently necessary works can be undertaken without consent. And five days’ notice will have to be given to the authority of any works to a tree that is either dead or dangerous.

Where an application is made for consent under an order, it must contain full justification for the proposed works – it will not be possible to add in further material in the event of an appeal. The authority will determine the application on the basis of that information alone; and, if consent is refused, the entitlement to claim compensation will be determined on that basis too. On the other hand, it will no longer be possible for an authority refusing consent under an order to impose an “article 5 certificate”, effectively depriving the tree owner of any right to compensation.

If consent is granted, it will in future last for two years (not one year, as suggested in the draft regulations – this is one of the few changes from the draft), unless specified otherwise.  

Conclusion

The most noticeable result of the changes – which as yet apply only in England – will be that orders made in the future will be much shorter – which in turn may encourage authorities to make new orders, and to update existing ones. Otherwise, the position in relation to all protected trees will in future be precisely the same – regardless of the date on which the relevant TPO was made (and will be more or less as was introduced for orders made on or after 2 August 1999, as amended in 2008).

Guidance is available on the DCLG website; it is to be hoped that a new version of the Blue Book (TPOs: A Guide to the Law and Practice) will follow soon.  

Charles Mynors is a barrister at Francis Taylor Building and can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..

He is the author of the leading textbook in this area, The Law of Trees, Forests and Hedges. The second edition of the book was published (by Sweet & Maxwell) at the end of 2011, written in 2010, and therefore does not refer to the new Regulations. However, as it turns out, they are virtually identical to the draft Regulations (except as noted above), to which there are copious references throughout the book – so that it may be safely used as a guide to the new law and procedures.