In a recent case, a Homeowner was ordered to pay £40,000 for chopping down part of a protected tree which blocked sunlight from the master bedroom balcony of their £1million home.
Yvonne Bourne, Senior Conveyancer at our Storrington Office outlines how Tree Preservation Orders can have a lot of bite and must be clearly identified when you are considering buying a property.
When Samuel Wilson, from Canford Cliffs in Dorset added a new Juliet balcony to the master bedroom of his home in 2016, he noticed that the 42ft oak tree in his back garden was casting a broad shadow, as it stood a few meters in front of it, to the south west.
The oak was subject to a Tree Preservation Order, which meant that Mr Wilson should have sought permission from the local authority before cutting it. However, he failed to get in touch with Poole Borough Council and lopped off a number of 12ft long branches, allowing sunlight to hit the back of his property.
A neighbour reported Mr Wilson’s actions to Poole Borough Council and an investigation was launched.
Prosecution under "Proceeds of Crime"
Wilson pleaded guilty to a charge of causing wilful damage to a protected tree at a magistrates’ hearing and appeared at Bournemouth Crown Court for sentencing.
This is the first case of its kind in the UK as Mr Wilson is the first person to be dealt with under the Proceeds of Crime Act for a case involving damaging a tree to improve light. This is because the act of pruning the tree added approximately £21,000 to the value if the property, an aggregate estimate provided by two council surveyors. Mr Wilson must reimburse this to the taxpayer, as well as being fined £1,200 and pay £15,000 in legal fees.
In his summing up, Judge Jonathan Fuller QC told Wilson: 'I am quite satisfied that in this case there has been a benefit and will adopt the lower valuation of £21,750.'
Ordinarily, Poole Borough Council’s maximum fine for breaching a TPO would have been £2,500 but by using the Proceeds of Crime Act in reflecting the improvement to value, they wanted to send a strong signal for others thinking of doing the same.
What is a Tree Preservation Order?
A Tree Preservation Order (TPO) is an order made by a local planning authority in England to protect specific trees, groups of trees or woodlands in the interests of amenity.
An Order prohibits the “cutting down, topping, lopping, uprooting, wilful damage or destruction” of trees without the Local Planning Authority’s written consent. If consent is given, it can be subject to conditions which have to be followed. In the Secretary of State’s view, cutting roots is also a prohibited activity and requires the authority’s consent.
Owners of protected trees must not carry out, or cause or permit the carrying out of, any of the prohibited activities without the written consent of the Local Authority. As with owners of unprotected trees, they are responsible for maintaining their trees, with no statutory rules setting out how often or to what standard.
Under The Town and Country Planning (Tree Preservation)(England) Regulations 2012, Local planning authorities can make a TPO if it appears to them to be ‘expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area‘.
Authorities have to consider what ‘amenity’ means in practice. ‘Amenity’ is not defined in law, so authorities need to exercise judgment when deciding whether it is within their powers to make an Order.
Orders should be used to protect selected trees and woodlands if their removal would have a significant negative impact on the local environment and its enjoyment by the public.
When granting planning permission, authorities have a duty to ensure, whenever appropriate, that planning conditions are used to provide for tree preservation and planting.
How is a TPO categorised?
The extent to which the trees or woodlands can be seen by the public will inform the authority’s assessment of whether the impact on the local environment is significant. The trees, or at least part of them, should normally be visible from a public place, such as a road or footpath, or accessible by the public.
Individual, collective and wider impact
The authority should also assess the particular importance of an individual tree, of groups of trees or of woodlands by reference to its or their characteristics including:
- size and form;
- future potential as an amenity;
- rarity, cultural or historic value;
- contribution to, and relationship with, the landscape; and
- contribution to the character or appearance of a conservation area.
Managing Protected Trees
Arboricultural advice from competent contractors and consultants, or the authority, will help to inform tree owners of their responsibilities and options. It is important that trees are inspected regularly and necessary maintenance carried out to make sure they remain safe and healthy.
If you want to do some maintenance to protected trees, there is no need to try and remove the TPO. However, you will have to apply to the Local Authority for permission. If there is a sound reason for the maintenance (for example, a recommendation based on the health of the tree by an expert) then the Local Authority should allow it.
In the event of refusal, you can appeal and claim for damages under the Town and Country Planning Act 1990.
Check the risk before you buy
If you are thinking of buying a property or land with which there may be an issue concerning a tree preservation order it may affect the value or restrict the way in which you use your home now and in the future.
The Gov.uk website which allows a householder to check the status of trees and this can be done prior to the purchase of the property by prospective buyers. However, some TPO date back to 1949 and there is the possibility that Local Authority records may not be accurate
A TPO should show up on the Local Land Charge search that your Solicitor undertakes but this is not always the case. As part of my detailed service to my clients, I always make sure that that TPOs, along with rights of way, parking and adopted roads are among the key issues from local Authority Searches requested as part of conveyancing due diligence are picked up well ahead of exchange, so you understand the implications of any risks and restrictions and their potential costs.
I have been in practice since 2006 and has acted for a variety of clients, whether moving up or down the property ladder, as well as first time buyers and those looking to purchase investment properties.
For more information, contact Yvonne at firstname.lastname@example.org or call 01903 745666