Money really doesn’t grow on trees
David Pack
Partner
0207 880 4407
Michael Lewis
Associate
020 7880 4399
Facing prosecution for a Tree Preservation Order (‘TPO’) violation can be a daunting, and expensive, experience. Whether a landowner inadvertently damaged a protected tree or are accused of unauthorized actions, understanding and staying informed is crucial.
Understanding Tree Preservation Orders
Purpose
TPOs are established under the Town and Country Planning Act 1990. They aim to protect trees that offer significant public amenity or ecological value from being damaged or destroyed without proper authorisation. Local Planning Authorities (‘LPAs’) have the power to issue TPOs, and any unauthorized work, whether as a landowner or not, such as felling, topping (removal of large portions of the crown of the tree), lopping (removal of large side branches), uprooting, or wilfully damaging protected trees constitutes a criminal offense that can lead to a prosecution.
TPO Offenses
Since the new provisions of the Environment Act 2021 came into force on 1 January 2023, breach of a TPO is a strict liability offence and persons convicted of breaching a TPO can face an unlimited fine. Previously, under the Forestry Act 1967, the maximum fine for breaching a TPO was £5,000. The change in legislation was required as property developers often disregarded TPOs, as the resulting increase in value would cover any fines for breach. The new legislation is designed to deter this behaviour.
Strict liability offences are used in areas of public policy where the protection of the public interest is paramount. All that is required for a strict liability offence to be committed is that the act occurred, irrespective of knowledge of the offence’s existence, or intent to commit it.
Additional Orders
Courts may also require offenders to undertake remedial actions, such as replanting trees or repairing damage. The Courts may also order that the costs incurred by the local authority or affected parties in enforcing the TPO are covered by the Defendant if convicted.
Under the Proceeds of Crime Act 2002 the prosecuting authority can apply for any assets gained through criminal activities to be confiscated. In relation to breaching a TPO, this usually involves an additional fine equal to any financial benefit gained in increased land or property value.
Exemptions
Certain actions may be exempt from TPO restrictions. These can include:
- Emergency Work: If the tree posed an immediate risk to public safety or property, and the work was necessary to prevent harm.
- Dead or Dangerous Trees: Work done on dead or imminently dangerous trees may be permissible without prior consent, although evidence such as a professional arborist’s report would be necessary.
- Permission Granted: If you had obtained permission from the local authority for the work and adhered to the conditions set out in that permission.
Notable Cases:
Mitigating Factors
Cooperation and Remediation
Demonstrating that an offender has cooperated with the local authority and taken steps to rectify any damage can significantly impact the outcome of the case. Courts tend to look more favourably on offenders who acknowledge their mistakes and take proactive measures to remedy the situation, such as replanting trees or engaging in community services or initiatives related to tree conservation.
Personal Circumstances
The court may also consider personal circumstances that led to the offense. Factors such as financial hardship, health issues, or lack of awareness about the tree's protected status can sometimes help mitigate the severity of the sentence.
Practical Steps for Defendants
Seek Legal Advice
Immediately seeking legal advice is crucial to anyone facing prosecution for a TPO offense. A solicitor experienced in the law surrounding TPOs can help an offender understand the charges, identify mitigating factors, and guide an offender through the legal process. It is important that there is early engagement with local authority to seek the best possible outcome and reduce tensions between the authority and the offender..
Communicate with Authorities
Open communication with the local authority can sometimes lead to a more favourable outcome. Engaging in constructive dialogue may allow for negotiation of penalties or even resolution without the need for court proceedings. Being honest and transparent about the situation can demonstrate a willingness to comply with legal requirements and rectify any mistakes.
Stay Informed
Keeping informed about the specific laws and regulations regarding TPOs can help landowners avoid future issues. Understanding a persons rights and responsibilities as a landowner or tenant, and working with a solicitor to apply for permissions or exemptions, can prevent accidental breaches of TPOs. Regularly checking for updates or changes in legislation is also advisable.
Conclusion
Defending against a prosecution for violating a Tree Preservation Order requires a thorough understanding of the legal framework, potential defences, and the court process. By seeking expert legal advice, you can strengthen your defence and potentially mitigate the penalties. Remember that each case is unique, and tailored legal advice is essential for navigating the complexities of TPO prosecutions effectively.
Devonshires has recently acted alongside Rebecca Chalkley KC of Red Lion Chambers, in the largest ever breach of a TPO which is currently awaiting the outcome of an appeal. Click here to read more.
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