A Tree Preservation Order (TPO) is made by the Local Planning Authority to protect certain trees or woodlands in a particular area. Trees can be of any size or species to be protected, there is no restriction. However, a Tree Preservation Order may only protect trees that can be classed as a tree and therefore does not usually include shrubs or hedges.
A TPO makes it an offence to cut down, top, lop, uproot, or cause damage or destruction to the tree or woodland that is protected. These actions are known as ‘prohibited activities’ and are regulated by law.
The law on TPO’s can be found in the following Acts:
Local Authorities can make a Tree Preservation Order if the specific tree or woodland in question, gives an indication that the presence of it, is in the interest of the local amenity for there to be preservation.
To assist the Local Authority making a TPO, they will visit the site to assess the tree(s) or woodland. They will decide whether the specific tree or woodland area has any amenity value. The factors that the Local Authority will consider when assessing the amenity value are:
If the Local Authority deem the tree or woodland to be an amenity value, then they can make a Tree Preservation Order. The Order is made in accordance with the Town and Country Planning Act 1990 s198.
Once the initial decision has been made by the Local Authority to make an Order, the Local Authority will serve a notice on any person who has an interest in the land. The individuals who are considered to have an interest in the land are those being the owners or occupiers of the area concerned as well as any person who has authority in relation to the area.
A copy of the Order will also be available for public inspection. This Order is a provisional Order, and the effect is that it will last for 6 months unless the Local Authority confirms the Order or decides not to proceed with the Order, before the 6-month period ends.
The public and any person who has an interest in the land, can object to the Tree Preservation Order or comment on the Order, the Local Authority provide at least 28 days from the date of the notice, for any person to submit their objections or comments. After the 28-day period, the Local Authority will consider all objections and comments made by the public as well as individuals with interest in the land, before making a final decision on either denying or confirming the Order.
If the final decision is that there is to be a confirmed Order on the specific tree or woodland, then the Order comes into effect on the day that the Local Authority made it. The Local Authority will then notify all persons previously served with a notice, that the Order has been made and provide them with a copy of the Order, as well as information such as, the date that the Order was confirmed, the grounds on which an application to the High Court may be made should any individual wish to contest the Order and the time limit for making such an application.
The laws regulating Tree Preservation Orders make it clear that the owners of protected trees are prohibited to carry out, or cause, or permit any of the prohibited activities, without the written consent of the Local Authority.
Owners of protected trees are responsible for maintaining the tree, however, there are no statutory laws or rules detailing how often the maintenance needs to occur, or to what standard.
There are certain exceptions to the general rule that consent is needed by the Local Authority before any works can be done. A selected few of those limited exceptions include the following:
An example of a protected tree becoming a nuisance is demonstrated by the case Perrin & Another v Northampton Borough Council. This case concerned a large oak tree that caused damage to the Claimant’s land, and they sought an Order entitling them to fell the tree because it was ‘necessary for the prevention or abatement of a nuisance’. The Court of Appeal made it clear that alternative steps must be considered to remedy the damage or nuisance caused by the tree before felling or destroy the tree itself.
The presence of a TPO affecting the property will be revealed either in the Property Information Form completed by the Seller, or by the Local Authority search results. It is important to know all of the information possible about a Tree Preservation Order before completing with the purchase, particularly if the Buyer is intending to remove the tree or carry out any works to the tree or property once they become the legal owner.
The Buyer must consider the location of the protected tree and decide whether the tree in its location is something that they would like to live with during their ownership of the property. It is extremely unlikely that they will be able to remove the tree or make any changes as the Local Authority must provide consent before any work can be done and this is unlikely to be given.
The effect of having a protected tree within the property boundary is similar to having any other tree; therefore, Buyers can expect leaves, twigs, pollen and dead branches as well as lawn patching around the tree, these are all usual consequences of having a tree within the boundary of the property. It is also worthy to note that trees cast shade, which increase as they grow, and any protected tree cannot be restricted in grow. Therefore, as time goes on, visibility from the property windows and natural light might become reduced and this is something to consider for purchasers wishing to make their new property a long-term home.
A difference however to having a usual tree and a protected tree within the property boundary is in relation to a Buyer who has plans to develop the property or make structural changes to the property or gardens, including the driveway. Having a usual tree within the property boundaries will not cause any problems to these planned works however having a protected tree may restrict or delay any planned work if the tree or its roots or soil are within the vicinity of the planned works.
Despite the slightly negative elements of having a protected tree within the property boundary, there are of course overwhelming positives of having a protected tree. Firstly, the value of the property may increase over time as the tree will become more and more important, the longer it lives and therefore the more valuable it becomes. Protected trees can greatly enhance an area or properties’ appearance and character and also provide valuable habitats for the wildlife. Finally, they often look beautiful during the season changes, similar to other trees.
A Buyer who is aware that there is a Tree Preservation Order in place within the property boundaries that they are potentially going to purchase, is advised to obtain a full structural survey of the property should the tree be close to the property itself. The survey will highlight any potential damage caused or future damage that may be caused by the tree.
The Buyer should be fully informed about the exact location of the protected tree and the Buyer should ensure that the tree is in fact still there and not removed or destroyed by the Seller or previous owners. Even if the tree was destroyed or damaged by previous owners, the Buyer may still be liable and held accountable by the Local Authority if they were not made aware that the tree had been damaged or destroyed, prior to the Buyer taking over ownership of the property. The Buyer should also be informed of any maintenance work that has been carried out to the tree previously and copies of the consent from the Local Authority in relation to the maintenance works carried out.
Taking on a property with a Tree Preservation Order does require the owners to provide basic care and have responsibility over the maintenance of the tree. Buyers should know that it is an offence to damage or destroy a protected tree or carry out any works to the tree without consent being obtained from the Local Authority first. The Local Authority can take the owners to Court for breaching the Tree Preservation Order and fines can be issued depending on the severity of the offence.
Our team of solicitors can assist with advice on how a Tree Preservation Order may affect your transaction or on how best to manage the order. Call them today on 0800 368 5102 or complete an online enquiry form.