Introduction

Trees are seen by the government as playing a vital role in enhancing biodiversity, mitigating climate change, and improving the quality of life in urban and rural environments. As such, many trees are protected by Law. In England, Tree Preservation Orders are a key legal instrument used to safeguard trees of significant value. Established under the Town and Country Planning Act 1990, Tree Preservation Orders empower local planning authorities to protect specific trees or woodlands from unauthorised cutting, uprooting, or destruction. This article Tree Preservation Order Barrister Quentin Hunt analyses the legal framework governing Tree Preservation Orders, focusing on the criminal offences and enforcement mechanisms under the Town and Country Planning Act 1990.

What are Tree Preservation Orders? 

Tree Preservation Orders are governed by the Town and Country Planning Act 1990 and the Town and Country Planning (Tree Preservation) (England) Regulations 2012. A Tree Preservation Order can be made by a local planning authority to protect individual trees, groups of trees, or woodlands that contribute to the amenity of an area. Once a Tree Preservation Order is in place, it is an offence to carry out prohibited activities, without the Local Authority’s consent this can include the following activities:
 
-    cutting down
-    uprooting
-    topping
-    lopping 
-    wilfully damaging
-    destroying

The statutory framework provides exemptions for certain activities, such as work on dead or dangerous trees, or work required by legislation (e.g., under the Forestry Act 1967). However, these exemptions are narrowly construed, and failure to comply with the terms of a Tree Preservation Order can result in criminal prosecution.

Tree Preservation Order Criminal Offences

Section 210 of the Town and Country Planning Act 1990 establishes the criminal offences related to Tree Preservation Orders. It is an offence to:  
- Cut down, uproot, or wilfully destroy a protected tree, s210(1)(a);
- Wilfully damage, top, or lop a protected tree in a manner likely to destroy it (s210(1)(b); or  
- Cause or permit such actions to be carried out s210(1)(c)  

The offence is one of strict liability, meaning that the prosecution does not need to prove intent or negligence. However, the defendant may raise statutory defences, such as demonstrating that the tree was dead or dangerous, or that the work was carried out with the local authority's consent.

Defences to a Tree Preservation Order prosecution

There are many potential defences to a Tree Preservation Order prosecution. I examine these in detail in a separate article that can be viewed HERE. 
In short, if a tree is dangerous or dying, if the works are urgently necessary, if the work is necessary for the prevention of a nuisance or to comply with a statutory obligation or is necessary to implement a planning permission, then a defence may be available in law. Issues relating to defences to tree preservation order prosecutions are complicated and therefore requires a separate article to analyse fully.

Time limits for Tree Preservation Order prosecutions

The offence under s210 of the Town and Country Planning Act 1990 is an ‘either way offence’ this means that it may be heard either in the Magistrates Court or in the Crown Court. This means that there is no time limit for the bringing of a prosecution. However, there are time limits on the amount of time that has passed before a prosecution may be brought if the prosecution is brought for contravening a tree preservation order or the regulations otherwise than as is mentioned in subsection 1 of section 210, there are time limits to the prosecution. Proceedings may only be brought within six months of the date in which the prosecutor became aware of evidence sufficient to bring the proceedings and no more than three years after the date on which the offence was committed. The question of time limits in these prosecutions is a complicated one and if there is an issue as to time limits it is recommended that specialist legal advice is sought

Sentence for Breach of a Tree Preservation Order 

The penalties for breaching a Tree Preservation Order are significant. On summary conviction in the magistrates' court or conviction in the Crown Court, offenders can face an unlimited fine. In more serious cases, the court may also order the offender to replace the tree or pay compensation for its loss.

For breaches of the tree preservation regulations or contravening a tree preservation order otherwise than as is mentioned in subsection one of section 210 then a person will only be liable to summary conviction and will only face a fine of level 4 on the standard scale which currently stands at £2500. 

The Court will of course consider any aggravating and mitigating circumstances which can include matters such as culpability and the extent of damage done. Section s210(3) makes it mandatory for the Court to consider any financial benefit which has accrued or appears likely to accrue to a defendant in the consequence of the offence when looking at the level of the fine. 

Defendants should also be aware of the potential for confiscation proceedings under the Proceeds of Crime Act 2002. An example of this is the case of R v  Davey (2013) where the Court imposed a £75,000 fine on the defendant for the felling of a tree but also imposed a £50,000 confiscation order to take into account the uplift in the value of his property as a result of the tree’s removal. 

Conclusion 

Tree Preservation Orders are to be taken seriously. Breaches of Orders can result in prosecution and, if convicted, a defendant can face having a criminal record, receiving a financial penalty by way of a fine and potentially proceeds of crime act proceedings.

If you face proceedings for breach of a Tree Preservation Order or if you are under investigation by a local authority for such a breach, then you may wish to seek specialist legal advice at the earliest stage possible.

Quentin Hunt is a criminal barrister and specialist Tree Preservation Order lawyer who has over 25 years’ experience in defending prosecutions under the Town and Country Planning Act 1990. He is considered one of the country's leading experts in this area. Quentin is known for his dynamic approach to such cases attempting at all stages to get matters settled out of court without a prosecution or, if a prosecution has already been launched to try to ensure that matters are concluded by way of ensuring that his clients do not face having a criminal record. Quentin accepts instruction both through solicitors and directly from members of the public. You can contact Quentin for a free comment no obligation telephone discussion about your case.