Trees and Woodland
TPO Applications
Pre-Application
If a felling licence is not required (consult Forestry Commission) an application for consent under the TPO must be made to the Council.
The applicant should consider seeking the advice of an arboriculturist or, ideally, discuss the proposal informally with the Council before making the application. The Council will wish to visit the site at some stage before issuing a decision; giving them an opportunity to do so before an application is made may save time later on. Early discussion will give the Council a chance to:
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explain whether the work proposed is exempt from the need to apply for consent or requires an application to the Forestry Commission rather than the Council,
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advise on how best to present an application to the Council,
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guide the applicant generally about TPO procedures and the Council's policies.
Who Can Apply?
Anyone can apply for consent under a TPO, you do not have to have a legal interest in the land. For example, a person can apply to carry out work on trees which are situated in a neighbours property but you are advised to consult the owner before making an application. You should also notify the owner as soon as the application has been submitted.
It is legitimate for the Council to ask applicants about their legal interests in the trees on which they propose to carry out work. Their decision on the application should be based on the merits of the case, in the public interest.
If they grant consent it will be for the applicant to make sure any necessary permission is obtained from the owner of the tree before carrying out the work. There is no fee for an application.
The Application
For it to be valid, an application under a TPO must be made to the Council on the standard form published by the Secretary of State and must be completed in full. The form and guidance notes can be down-loaded or can be provided as a paper copy on request from Nelson Town Hall .
It is vitally important that the application sets out clearly what work is proposed. This should be straightforward if the proposal is to fell a tree, as long as the tree is clearly identified. If the proposal is to prune a tree the application should clarify exactly what work is envisaged. A proposal simply to 'top' the tree or to 'lop' or 'cut back' some branches is too vague because it fails to describe the extent of the work. The guidance notes will assist with this.
Applicants are advised not to submit their applications until they are in a position to present clear proposals. As suggested above they should consider first discussing their ideas with an arboriculturist or the tree officer of the Council.
Two Offences
Firstly, anyone who, in contravention of a TPO:
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cuts down, uproots or wilfully destroys a tree, or
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tops, lops or wilfully damages a tree in a way that is likely to destroy it is guilty of an offence.
Anyone found guilty of this offence is liable to a fine of up to £20,000. In serious cases a person may be committed for trial in the Crown Court and, if convicted, is liable to an unlimited fine.
The Courts have held that you do not have to obliterate a tree in order to 'destroy' it for the purposes of the Act. It is sufficient for the tree to be rendered useless as an amenity or as something worth preserving.
Secondly, it is also an offence for anyone to contravene the provisions of a TPO otherwise than as mentioned above. For example, anyone who lops a tree in contravention of a TPO, but in a way that the tree is not likely to be destroyed would be guilty of this offence.
The penalty in this case is a fine in the Magistrates Court of up to £2,500. For this offence the Magistrates Court cannot deal with a case unless the action is brought within six months from the time the offence was committed.
It may be possible to bring a separate action for each tree cut down or damaged in contravention of the TPO. The defendant may claim that the work was permitted by virtue of one of the statutory exemptions. If so, the burden of proof to show, on the balance of probabilities, that the work fell within the terms of the exemption is placed on the defendant. As a general rule it is no defence for the defendant to claim ignorance of the existence of a TPO.
Over-hanging branches
Whilst there is a right to prune back over-hanging branches to the vertical plane of the property boundary, if the tree in question is subject of a TPO then consent to prune will be required from the Council.
Leaflets
The Government has produced a number of leaflets with further information regarding TPOs. These can be downloaded below.
Protected Trees - A Guide to Tree Preservation Orders
Tree Preservation Orders - A guide to the law and good practice
