This article examines defences to allegations of breaches of a Tree Preservation Order under section 210 of the Town and Country Planning Act 1990. This article does not examine Tree Preservation Orders generally and for more detail about Tree Preservation Order prosecutions please view a separate article that I have written previously. 

Introduction

In prosecutions for breaches of Tree Preservation Orders under the Town and Country Planning Act 1990, there are many defences are available to defendants. These defences are outlined in Section 198(6) and Section 201 of the Town and Country Planning Act 1990, as well as in the Town and Country Planning (Tree Preservation) (England) Regulations 2012. In the below article specialist Tree Preservation Order Barrister Quentin Hunt looks at some of the key defences available in any prosecution.

Defences to prosecutions for breach of a Tree preservation order

The following issues may give rise to an effective defence to a prescription under s210 of the Town and Country Planning Act 1990. These are only broad principles, and specialist legal advice should be sought to see if specific facts may give rise to any defence being viable. 

Consent from the Local Planning Authority

A defendant may argue that they had obtained written consent from the local planning authority to carry out the work on the protected tree. If the authority granted consent for the specific activity (e.g., cutting down or lopping the tree), this is a complete defence to a prosecution under Section 210 of the Town and Country Planning Act 1990. It is of note that the defendant must prove that the work carried out was within the scope of the consent granted and any work exceeding the terms of the consent may still result in liability.

The Tree was Dead, Dying, or Dangerous

A defendant can argue that the tree was dead, dying, or dangerous at the time the work was carried out. This defence is available under Section 198(6)(a) of the Town and Country Planning Act 1990. If the tree was already dead or in a state of irreversible decline, its removal or destruction may not constitute an offence. Also, if the tree posed an immediate risk of harm to persons or property, its removal or lopping may be justified. However, the defendant must demonstrate that the danger was genuine and that the work was necessary to mitigate the risk.

The defendant will want to show that the tree was indeed dead, dying, or dangerous. Expert evidence, such as a report from an arboriculturist, may be required to support this defence.

Work Required by Other Legislation

A defendant may argue that the work was required under other legislation, such as the Forestry Act 1967 https://www.legislation.gov.uk/ukpga/1967/10/contents or the Highways Act 1980 https://www.legislation.gov.uk/ukpga/1980/66 . For example, if a tree obstructs a public highway and its removal is mandated under the Highways Act, this may provide a defence to a Tree Preservation Order breach.

Work Carried Out by Statutory Undertakers

Statutory undertakers (e.g., utility companies) may carry out work on protected trees if it is necessary for the maintenance of their infrastructure (e.g., electricity lines, gas pipelines). This defence is available under Section 198(6)(b) of the Town and Country Planning Act 1990.

Work Carried Out in Compliance with a Planning Condition

If the work was carried out in compliance with a planning condition imposed by the local planning authority, this may provide a defence. For example, if a planning permission for development required the removal of a tree, the defendant may argue that the work was lawful. It should be noted that in such cases the defendant will want to be able to prove that the work was explicitly required or permitted under the terms of the planning permission.

Emergency Situations

In cases of an emergency, such as severe weather events or sudden tree failure, a defendant may argue that the work was necessary to prevent immediate harm to persons or property. While this is not explicitly stated in the Town and Country Planning Act 1990, courts may consider the reasonableness of the defendant's actions in such circumstances. The defendant must demonstrate that the situation was genuinely urgent and that the work was proportionate to the risk.

Incorrect Identification of the Tree or Invalid TPO

A defendant may argue that the tree in question was not covered by the Tree Preservation Order. This could occur if the tree was incorrectly identified in the Tree Preservation Order or if the Tree Preservation Order itself was invalid due to procedural errors and that the order itself is a nullity.

Defences under the Town and Country Planning (Tree Preservation) (England) Regulations 2012

It is an offence under section 201 subsection 4 of the Town and Country Planning Act for there to be any breach of the Town and Country Planning (Tree Preservation) (England) Regulations 2012. These regulations relate not just to the destruction of trees but also to their damage. For example, under Regulation 13 https://www.legislation.gov.uk/uksi/2012/605/regulation/13 it is an offence to cut down, top, lop, uproot, wilfully damage or wilfully destroy any tree to which a tree preservation order attaches without the written consent of the authority or not within the conditions that the authority imposes. In those circumstances, common defences are either that the work has not taken place or the work has not taken place in the manner described or where there is a question of damage or destruction that such damage or destruction was not wilful i.e. that it was an accident or the result of negligence or miscommunication as opposed to being something that was deliberate.

Statutory Time Limits for Prosecution

Prosecutions for Tree Preservation Order breaches must be in some circumstances be brought within statutory time limits. If the prosecution is brought outside these time limits, the defendant may argue that the case is time-barred. This is examined in more detail in my other article on this subject. It is of note that this defence is procedural and does not relate to the merits of the case.

Conclusion

The defences available to prosecutions for breaches of Tree Preservation Orders are designed to balance the need to protect trees with the practical realities of land management and public safety. However, in many circumstances the burden of proof lies with the defendant to establish that one of these defences applies. Courts will carefully scrutinise the evidence, particularly in cases involving claims that a tree was dead, dying, or dangerous. As such, it is essential for landowners, contractors, and other parties to exercise due diligence before carrying out work on trees and to seek professional advice where necessary.

If you are under investigation, or face prosecution for breach of a Tree Preservation Order then you may wish to avail yourself of specialist legal advice representation at an early stage. Quentin Hunt is a criminal defence barrister of over 25 years’ experience, he specialises in defending prosecutions brought under the Town and Country Planning Act 1990. If you wish to discuss such a case then you may contact Quentin for a free, no obligation discussion about how he can assist in your case.