Trees and the Law: A Guide to the Essential Points

Trees and the Law:A GUIDE TO THE ESSENTIAL POINTS OF TREES AND THE LAW Herefordshire Tree Warden NetworkSeptember 2016Please note these slides/presentation are not definitive and are only an overview. Full legal texts and ‘small print’ available from main UK .gov websites James BissetHTWN Steering Group memberHC: Principal Countryside Officer (Ecology & Arboriculture)

The key legislation • Tree Preservation Orders (Local Planning Authority - LPA) • Conservation Areas (LPA) • Hedgerow Regulations & High Hedges (LPA) • Planning Permission (LPA) • Felling Licence (Forestry Commission) • Woodland Grant Scheme (Forestry Commission) • Wildlife & Countryside Act (Police – criminal offence)

Tree Preservation Orders (TPO) • TPO is an order made by a Local Authority (Herefordshire Council) to protect specific trees, groups of trees, woodlands or orchards in the interests of amenity. (Town & Country Planning Act 1990; amended by Tree Preservation (England) Regulations 2012). Old orders apply amended legislation. • A TPO prohibits (subject to certain exclusions)… • Felling/cutting down/coppicing • Topping • Lopping • Uprooting (including cutting roots) • Wilful damage • Wilful destruction • …without the local planning authority’s permission

Tree Preservation Orders (TPO) • Owners of TPO trees have NO increased responsibility to manage their trees over someone who owns unprotected trees. • However all tree owners are advised of their basic responsibilities as regards • duty of care and owner/occupier liabilities. • Key exceptions to requiring permission: • Orchard or fruit trees under commercial cultivation (except full removal!) • Dead, dangerous or dying (although proof of need may be required if challenged) • Required to implement a full planning permission (application will detail trees impacted) • Work by ‘statutory undertakers’ (although usually ‘advise’ LPA except in emergencies) • Some Highways or Environment Agency related works • There are others so check out .gov for full details and ‘small print’

Tree Preservation Orders (TPO) • Owners encouraged to make one application for works to multiple TPO trees or appropriate regular works (so may be some historic permissions in place) • Applications should be sufficient, detailed and evidenced. • Valid applications included on HC Planning lists (info offices and online, minimum 21 days) • If permission not granted then LPA may be liable for some costs subject to specific criteria and limitations • Can condition replacement trees as part of the decision (NOT automatically protected – so original order may need to be varied – similar process to making an order) • Applicant has a right of appeal if permission refused or about conditons • Permissions normally valid for 2 years (but may be more or less by condition)

Tree Preservation Orders (TPO) • Making a TPO • The LPA may decide to make a TPO or it may respond to an external request if appears to them to be ‘expedient’ in the interests of amenity to make the order. • No definition in legislation of ‘amenity’ but key considerations are taken as: • Visibility – significantly visible or accessible to wider public • Landscape character (size, form, relationship to other features, significant to conservation area) • Rarity, cultural or historic value (likely local community need to prove these in support of TPO request) • Other factors – eg identified nature conservation interest or climate change • ‘expedient’ usually means where the LPA believes there is a real risk to the trees and their loss would have a significant detrimental impact on local amenity. If trees or woods are in good management then unlikely to be ‘expedient’

Tree Preservation Orders (TPO) • Making a TPO • Emergency order – immediate and option of last resort (straight to notification) • TPO ‘request’ is assessed by LPA with relevant consultation • Order and Notice drawn up. • All people with an ‘interest’ in the land on which tree sits + statutory consultees are notified • This provisional order remains in place for 6 months (to allow full consultation, comment or objections) unless ‘confirmed’ or ‘not confirmed’ by LPA in meantime. • Minimum 28 days from initial order to confirmation (Order may be modified before confirmation) • Order only applies to specified trees or trees in a group at the time the order was made (so natural regen or new planting not automatically covered but order may be amended to include) • https://www.herefordshire.gov.uk/beta/administrative-map-for-herefordshire • To submit a TPO request send as much info as possible to: planning_enquiries@herefordshire.gov.uk • IMHO: TPOs should be carefully considered and used sparingly – “don’t cry wolf!”

Conservation Areas (LPA) • If NOT covered by a TPO owner/manager of trees over 75mm DBH (or 100mm DBH if improving other tree growth e.g. thinning of densely planted woodland/copse trees) must give a minimum of 6 weeks notice (section 211 notice) to the LPA detailing works to trees (as with TPO applications encouraged to combine requests on one form) • DBH is measured at 1.3m above ground and on multi stem plants applies to whole ‘stool’ if one stem is over size. • Exempted TPO work does not require a 211 Notice. • If dead, dying then emergency 5 day notice period (may be retrospective if serious immediate threat and ‘justified’). • No 211 required for works detailed in an approved planning application • https://www.herefordshire.gov.uk/planning-and-building-control/development-control/planning-tree-preservation-orders • LPA may within 6 weeks (from acknowledgement of valid application by LPA) give permission or create a TPO or owner can proceed with works after the 6 weeks have passed. (Permission may include conditions including ‘replant’) • Conservation areas are NOT designated solely due to trees, though trees may form an important or additional consideration in the character of a CA.

Conservation Areas & TPO Enforcement (LPA) Enforcement is handled by the LPA’s Planning Enforcement team. Negotiation and discussion are preferred route. LPA can make a reasoned decision not to take action. Serve informal warnings Seek injunction to stop work Legal process ending in prosecution (LPA must fully consider was due process/procedures followed, implications , costs, have unrefutable evidence to ensure on balance the case is ‘beyond reasonable doubt’ and in ‘the public interest’ before pursuing a prosecution). Legal proceedings cannot require remedial works. http://planningguidance.communities.gov.uk

Hedgerow Regulations 1997 IMHO: Very complicated, not well known to public and landowners and not the clearest of legislation! Was a quick, ‘knee jerk’ regulation to stop field amalgamation with loss of hedges that resulted in mid 1990s from changes in subsidies, farm economics and working practices. Blanket legislation rather than properly targeted and developed. Should be completely reviewed in light of current knowledge. In simple terms any rural hedge (this may be just a line of trees that was a hedge, hedge with more gaps than hedge………) has the potential to be covered by the Regulations. Many breaches are due to this ambiguity and genuine lack of knowledge. Similar to conservation areas, in that notice needs to be given to the LPA of intention to remove a hedge or section of hedge with reasons. LPA can then authorise or protect the “important hedge”.

Hedgerow Regulations 1997 Planning application will normally override the hedgerow regulations with any unapproved removal of hedges or trees covered by breach of landscaping/tree protection conditions or approved plans. Enforcement – similar processes and thoughts to TPO and CA. http://hedgelink.org.uk/cms/cms_content/files/94_hedgerows_regs_1997_guide_law_%26_good_practice.pdf https://www.herefordshire.gov.uk/planning-and-building-control/development-control/planning-high-hedges High Hedges: Involving the LPA is the ‘last resort’ and you will need full documented evidence of the complaint and all attempts at recent (within last month or two) ‘friendly’ discussion and mediation. Applies to two or more trees forming a ‘hedge’, ‘mostly’ evergreen or semi-evergreen species (eg beech or hornbeam that retain dead leaves), more than 2m tall and does detract from your reasonable enjoyment of your home or garden. Does not include personal health, legal boundary disputes, subsidence or anything root related, also ‘tv’ signals unlikely to qualify. The LPA will charge you for their involvement!! https://www.gov.uk/government/publications/high-hedges-complaining-to-the-council

Planning Permissions (LPA) Generally any work impacting trees or hedgerows on a development site will be mentioned in the planning application process (or be raised as an area to address through any pre-application advice that has been sought) Depending upon nature of development (size, location, statutory designations, local biodiversity etc) detailed information will be required and internal consultation with landscape/tree/ecology officers requested. Can include full BS5837:2012 ‘Trees in relation to design, demolition and construction’ survey and Tree Impact Assessment; may also be covered within Ecological or Landscape report. Full free download (save £200!) from http://www.crawley.gov.uk/pub_livx/groups/operational/documents/plappcomment/ehfp2040459_attachment_1.pdf

Felling Licence (Forestry Commission) • In simple terms if you want to fell (or coppice) more than 5 cubic metres of trees in any calendar quarter you may well require a felling licence (2m3 if selling the timber) • 5m3 is equivalent of one-two very large mature trees, 5-10 ‘mature’ trees, or about 1000m2 (0.1 Ha) area of 10 year old regen or coppice. Exemptions: • Trees under 80mm DBH (100mm for thinning a woodland or 150mm for coppicing) • Trees in a garden, orchard, designated public open space, churchyard • Tree covered by a valid planning permission or FC Grant Scheme • Works to trees by a Statutory Undertaker • Trees that are dangerous or cause a nuisance (detailed guidance available) • http://www.forestry.gov.uk/forestry/infd-6dfkus

Felling Licence (Forestry Commission) • Licence must be in the name of the owner or a lease with rights to fell trees • Other designations may impact licence request (eg SSSI) • Felling trees to create a ‘change of use’ may require other permissions (eg planning) • Usually a restocking requirement to balance trees removed (inc 10 year management-establishment plan) – but may be on an alternative site within applicants ownership • Any FC/DEFRA woodland grant scheme application automatically includes relevant felling licence • Other relevant orgs (eg LPA, NE, EA etc) may be formally consulted • Minimum 4 week advertisement on FC public register (then removed): http://www.forestry.gov.uk/publicregisters • Land Information Search (very limited operability on current Op Systems) : http://www.forestry.gov.uk/forestry/infd-6dfkmn

Felling Licence (Forestry Commission) • ALL Felling Licence enforcement is through the Forestry Commission: • adminhub.bullershill@forestry.gsi.gov.uk • or 0300 067 4960 (we are in North West and West Midland Region) • Majority of Hfds west of A417 is Nick Smith. East of A417/Worcs borders is Wayne Barnes. Please use admin ‘hub’ contact first, as this saves local officer from basic enquiry sifting . Supply as much detail as possible and 6/8 figure OS Grid Ref for potential incident with your enquiry.

Wildlife & Countryside Act, etc. (Police – criminal offence) • ALL enforcement is through the police • http://www.wildlifetrusts.org/how-you-can-help/reporting-wildlife-crime/uk-wildlife-legislation • Various list of species (plant and animal) that have differing levels of protection, differing times of year, under licence, etc. • Poaching and killing; disturbing species or their roosts, nests or habitat; illegal trading or holding of dead animals or plants (whole or part). • Key is ensuring clear evidence that a crime will be, is or has been committed – without endangering your own safety! • You can’t assume a hedge being ripped out in May contained nesting birds – evidence of hedge before work started eg clearly dateable video or photos. • HBRC data (get those records submitted!)

In Summary • Remember Tree Wardens have no special or legal powers to: act, enter on to private land and have no special exemptions to normal law or special insurance cover (check with you ‘host authority’ on what their volunteer insurance cover is) • Maximise use of your local connections, knowledge and link to your ‘host authority’ • Never give ‘professional’ or ‘legal’ advice to a third party as a TW • Only take action when you are sure it is safe for you do so – before, during and after an incident. Your name may well have to appear on forms, statements and in evidence. Be prepared for a time commitment! • Be safe and ensure others know where you are and when you’re out being a Tree Warden – ‘buddy’ system or work with fellow TWs • **** Have fun and enjoy being a Tree Warden ****

Trees and the Law: A Guide to the Essential Points