7.1 Section 198 of the 1990 Act provides the Council with the power to protect trees through the making of Tree Preservation Orders. Consent is then required to carry out works to the protected trees. Section 210 of the Act makes it an offence to cut down, uproot or wilfully destroy a protected tree or to wilfully damage, top, or lop a protected tree in such a manner as to be likely to destroy it.
7.2 Provided the trunk diameter is more than 75 cm at 1.5m above ground level, trees in Conservation Areas are similarly protected. Notice of any intended works has to be given to the Council and work is unauthorised until the Council has responded to the notice or 6 weeks have elapsed, whichever is the sooner.
7.3 Consent is not required for the following works to protected trees.
a) Works to trees that are dead
b) Works to trees that are urgently necessary to remove an immediate risk of serious harm
c) Works to trees that are necessary in order to implement a planning permission
d) Works to trees cultivated for the production of fruit where such work is in the interests of that trade or business.
In relation to a) and b) above in particular it is best to check with the Councils Tree Officers before undertaking such work to ensure that they are satisfied that the tree is dead or that the works are genuinely urgent and necessary.
7.4 Section 97 of the Environment Act 1997 makes it an offence to remove what are termed "important" hedgerows, without the consent of the Council. Where this takes place the Council has the power to serve a ‘hedgerow replacement notice’.
7.5 The Council will give high priority to complaints relating to works to protected trees and hedgerows as any harm will be irreversible and arises from not just the loss of the tree or hedgerow itself but the loss of wildlife habitat that it provided.
7.6 Tree enforcement issues fall into two principal categories:
- unauthorised works or, damage to, or removal of trees that are protected by Tree Preservation Orders or situated within Conservation Areas (see below), and;
- breach of planning conditions relating to tree retention and protection. These will be dealt with in the same way as a breach to any other planning condition (see above).
7.7 There are two offences, which apply equally to trees protected by Tree Preservation Orders and those within Conservation Areas.
- Firstly, 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. If the person is committed for trial in the Crown Court, they are liable on conviction 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.
- Secondly, anyone who carries out works on 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 proceedings for offences in this category must be brought within six months of the date the offence was committed.
7.8 In addition to directly carrying out unauthorised works on protected trees, it is an offence to cause or permit such works.
7.9 In order to bring a successful prosecution, the Authority must be able to prove that:
- the defendant has carried out, or caused, or permitted works on the tree;
- the tree was protected;
- the works were carried out without the Authority’s consent; and
- the works were not exempt works.
7.10 Whenever a tree has been removed in contravention of the legislation, or because it is dead, dying or dangerous, there is an automatic duty on the landowner to plant a replacement tree of a suitable size and species at the same place as soon as reasonably possible (unless that requirement is waived by the Local Planning Authority). The planting of a replacement tree is the minimum the Council will require from a landowner who has removed a tree in contravention of the legislation.
7.11The Council has a range of possible further courses of action available to deal with cases of unauthorised works on protected trees. These include the following:
- seek a prosecution;
- administer 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. It may also be taken into consideration when deciding whether or not to prosecute at a later stage for another similar offence;
- under section 206 of the Town and Country Planning Act 1990, require the planting of a replacementtree for each tree destroyed;
- under section 207 of the same Act, serve 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;
- On receipt of a successful conviction can apply for a Confiscation Order under the Proceeds of Crime Act 2002 to recover any financial benefit obtained through the works; and,
- take no formal action. This may be accompanied by informal action, such as advising the alleged offender to ensure that the incident is not repeated.
7.12 Decisions as to what action to take in cases of unauthorised works on trees will be taken in the public interest, with each case being dealt with on its own merits.
7.13 Where enforcement action against works to protected trees and important hedgerows is involved, the Council will take the following into account alongside the Evidential and Public Interest Tests outlined in Section 6 above:
- The size of the tree(s)/length of hedge(s) involved;
- The prominence of the tree(s) or hedge(s);
- The condition of the tree(s) or hedge(s);
- The life expectancy of the tree(s) or hedge(s);
- The seriousness of the offence;
- The loss of/effect on amenity;
- Whether there have been persistent offences by the people involved;
- Any other mitigating factors.
7.14 Where a tree which is the subject of a Tree Preservation Order is removed without consent, or a tree in a Conservation Area is removed without consent, the Council will:
- If the tree is a single specimen tree of high amenity value in a prominent location and having a significant impact on amenity, prosecute those responsible for its removal and seek replacement planting in all but exceptional circumstances;
- In all other cases (e.g. lesser value trees or groups), prosecute, issue a Caution and/or require the provision of a semi-mature replacement tree in all but exceptional circumstances;
- With regard to trees in a Conservation Area, the seriousness of an offence will be judged by determining if the tree would have been made the subject of a Tree Preservation Order. If the tree was not worthy of a Preservation Order then the Council is unlikely to Prosecute but will seek the planting of a suitable replacement tree and will decide whether or not to issue a Caution.
7.15 Where unauthorised works are carried out to trees the subject of a Tree Preservation Order or are located within a Conservation Area:
- The seriousness of the offence is determined by the extent and quality of works and the effect on visual amenity and life expectancy;
- Where minor works have been carried out to an acceptable standard, the owner and any other relevant parties will be advised that any further works must be subject to a formal application;
- Where more extensive works have taken place that would not have been granted, the Council will decide whether to issue a Caution or Prosecute; Prosecution is more likely where there is a clear wider effect on visual amenity.
- Where works have been carried out but would have been granted, but to an unacceptable/poor standard, the Council will ensure remedial works are undertaken.