Exceptions relating to applications to carry out work on trees subject to a Tree Preservation Order
Paragraph: 079 Reference ID: 36-079-20140306
What are the exceptions for work on dead trees and branches?
Unless work is urgently necessary because there is an immediate risk of serious harm, five working days prior written notice must be given to the authority before cutting down or carrying out other work on a dead tree. The authority’s consent for such work is not required.
The exceptions allow removal of dead branches from a living tree without prior notice or consent.
Tree owners, their agents and authorities should consider biodiversity. Dead trees and branches can provide very valuable habitats for plants and wildlife, which may also be protected under other legislation. To conserve biodiversity it can be good practice to retain dead wood on living trees and at least the lower trunk of dead ‘ancient’ or ‘veteran’ trees unless, for example, safety reasons justify removal. Safety has priority, but safety considerations may not necessitate removal of all dead branches on living trees or the whole of a dead tree. It may be helpful to seek expert arboricultural and ecological advice.
Where a dead tree not covered by the woodland classification is removed, the landowner has a duty to plant a replacement tree.
Paragraph: 080 Reference ID: 36-080-20140306
What is the exception for work on dangerous trees and branches?
Where a tree presents an immediate risk of serious harm and work is urgently needed to remove that risk, tree owners or their agents must give written notice to the authority as soon as practicable after that work becomes necessary. Work should only be carried out to the extent that it is necessary to remove the risk.
In deciding whether work to a tree or branch is urgently necessary because it presents an immediate risk of serious harm, the Secretary of State’s view is that there must be a present serious safety risk. This need not be limited to that brought about by disease or damage to the tree. It is sufficient to find that, by virtue of the state of a tree, its size, its position and such effect as any of those factors have, the tree presents an immediate risk of serious harm that must be dealt with urgently. One consideration would be to look at what is likely to happen, such as injury to a passing pedestrian.
If the danger is not immediate the tree does not come within the meaning of the exception.
Where a tree is not covered by the woodland classification and is cut down because there is an urgent necessity to remove an immediate risk of serious harm, the landowner has a duty to plant a replacement tree of an appropriate size and species.
Paragraph: 081 Reference ID: 36-081-20140306
What is the exception for work to comply with an Act of Parliament?
The authority’s consent is not required for carrying out work on trees and woodlands subject to an Order if that work is in compliance with any obligation imposed by or under an Act of Parliament. This exception will apply, for example, where the Forestry Commission has granted a felling licence under the Forestry Act 1967.
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What is the exception for work to prevent or abate a nuisance?
The authority’s consent is not required for carrying out the minimum of work on a tree protected by an Order that is necessary to prevent or abate a nuisance. Here ‘nuisance’ is used in its legal sense, not its general sense. The courts have held that this means the nuisance must be actionable in law – where it is causing, or there is an immediate risk of it causing, actual damage.
When deciding what is necessary to prevent or abate a nuisance, tree owners and, where applicable, their neighbours and local authorities, should consider whether steps other than tree work might be taken. For example, there may be engineering solutions for structural damage to buildings.
Paragraph: 083 Reference ID: 36-083-20140306
Is there an exception for tree work relating to planning permission and permitted development?
The authority’s consent is not required for carrying out work on trees subject to an Order so far as such work is necessary to implement a full planning permission. For example, the Order is overridden if a tree has to be removed to make way for a new building for which full planning permission has been granted. Conditions or information attached to the permission may clarify what work is exempt.
However, the authority’s consent is required for work on trees subject to an Order if:
- development under a planning permission has not been commenced within the relevant time limit (i.e. the permission has ‘expired’);
- only outline planning permission has been granted; and
- it is not necessary to carry out works on protected trees in order to implement a full planning permission.
The authority’s consent is also required, for example, for work on trees protected by an Order that is necessary to implement permitted development rights under the Town and Country Planning (General Permitted Development) Order 1995.
Paragraph: 084 Reference ID: 36-084-20140306
What is the exception for work to fruit trees?
The authority’s consent is not required for carrying out work on a tree subject to an Order and cultivated for the production of fruit in the course of a business or trade if the work is in the interests of that business or trade.
The authority’s consent is otherwise generally required for carrying out prohibited activities to a fruit tree protected by an Order and not cultivated on a commercial basis. However, the authority’s consent is not needed before pruning any tree cultivated for the production of fruit, as long as the work is carried out in accordance with good horticultural practice.
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What is the exception for work by or for statutory undertakers
The authority’s consent is not required in certain circumstances for work carried out by, or at the request of, those statutory undertakers listed in the Town and Country Planning (Tree Preservation) (England) Regulations 2012. These statutory undertakers, or contractors working at their request, are advised to liaise with local authorities prior to carrying out work to trees protected by an Order. It is expected that all vegetation control is carried out in accordance with best arboricultural practice. They should also take care to not contravene the provisions of legislation protecting plants and wildlife.
Paragraph: 086 Reference ID: 36-086-20140306
Is there an exception for work relating to highway operations?
The authority’s consent is not required for cutting down, topping, lopping or uprooting a tree protected by an Order to enable the implementation of a highway order or scheme made or confirmed by the Secretary of State for Transport under Schedule 1 of the Highways Act 1980.
Paragraph: 087 Reference ID: 36-087-20140306
What is the exception for work by or for the Environment Agency and drainage bodies
The Environment Agency does not need to obtain the authority’s consent before cutting down, topping, lopping or uprooting trees protected by an Order to enable it to carry out its permitted development rights. Similarly, land drainage boards do not need to obtain consent before cutting down or carrying out certain works to trees protected by an Order.