Legal Constraints for Tree Surgeons

TREES AND THE LAW

NESTING BIRDS

The bird nesting season according to Natural England begins on March 1st and runs through to July 31st. This however is a guideline and it can be assumed that birds will nest both before and after this time period.

It is advised that any work carried out to trees, hedges or vegetation should not be implemented during this season. However in some instances this is neither practical nor possible. As contractors it is our responsibility to ensure that work to trees and vegetation carried out within this period avoids any impact on nesting birds. This would be an infringement of the Wildlife and Countryside Act 1981 and in breach of The European Habitats Directive 1992/Nesting Birds Directive.

Before any work is carried out within this season a thorough visual survey needs to be carried out to ensure there are no nesting birds present or that the intended work will not disturb any birds nesting near to the work site. During this season it should be assumed that nesting birds will be present and therefore it is the duty of the client and contractor to prove otherwise.

Although the majority of the responsibility lies with the contractor it is important that as a client you are sympathetic to the laws behind disturbing nesting birds. This may result in work being postponed until all nesting birds have gone. It is also a common misconception that certain bird species are not protected under these laws. In fact all wild bird species are protected, as are any eggs and it is an offence to remove them from an unoccupied nest.

The maximum penalty for each offence is a £5000 fine and up to six months imprisonment in the Magistrates court, and a £5000 fine and up to two years imprisonment in the Crown Court.

TREE PROTECTION

Trees can be protected in a number of different ways therefore it is important that both contractors and clients seek the correct legal advice and make enquiries to the appropriate authorities before carrying any work out. It is the responsibility of both parties, therefore any prosecutions or fines will be enforced upon both the contractor and the tree owner. Listed below are the different types of protection that can be place on a tree, together with the procedures to follow in order to carry out work.

1. TREE PRESERVATION ORDERS (TPO’S)

TPO’s are administered and enforced by the Local Planning Authorities (LPA’s). These include Borough and District councils and also National Park Authorities. They are created to protect trees that are deemed to have significant amenity value within the local area. The protection order prevents any work being carried out without written consent from the authorities and makes it a criminal offence to do so. They are often created by the LPA when a tree is under threat from development or unnecessary removal or remedial work.

Any species of tree can be subject to a TPO although hedges, bushes and shrubs are exempt. A TPO can be placed on an individual tree or in the form of a blanket TPO which can cover groups of trees, areas of trees and woodlands. It is a common misconception that certain species (for example the oak) are automatically protected. However no species of tree are by definition, subject to a TPO.

Anyone who carries out or permits work including ‘cutting down, lopping, topping, uprooting, wilful damage, wilful destruction’ of a tree or group of trees protected by a TPO can find themselves with a fine of up to £20,000 if convicted at the Magistrates Court or an unlimited fine if convicted at the Crown Court.

If you wish to carry out any work to a tree which you know or suspect to be protected by a TPO, a written application needs to be made to your relevant LPA. This can either be done in writing by downloading the application form from your LPA website (or collection from LPA offices), or by completing the application online at The Planning Portal. Element Tree Care will happily provide you with free advice or help with any queries you may have regarding Tree Protection. We also offer an Application Service whereby we collate the relevant information required and complete the application on your behalf.

2. CONSERVATION AREAS

Conservation areas include the buildings and infrastructure within an area that is deemed to have notable historical, aesthetic and amenity value. They are often in areas where there are buildings of heritage and age, although new build properties can also lie within a conservation area.

Any tree within a conservation area that has a stem diameter of 7.5cm at a height of 1.5m will require written notice to the LPA if work is intended to be carried out. It is a common misconception that trees that have been planted by yourself, or trees that have previously been worked on without permission do not require written notice. This is certainly not the case.

Written notice can be made either online at The Planning Portal, or by collecting or downloading the application form from you LPA website or offices. This notification process takes up to 6weeks and is known as a ‘Section 211 notice’. The 211 notice gives the LPA time to consider the proposed work and if they deem the work inappropriate, they will enforce a TPO on the tree/trees in question.

Element Tree Care will happily provide you with free advice or help with any queries you may have regarding Trees within a Conservation Area. We also offer an Application Service whereby we collate the relevant information required and complete the application on your behalf.

3. RESTRICTIVE COVENANTS

Restrictive covenants are written agreements between two people, most commonly the builder and the home owner or the land purchaser and the landowner. The covenant applies to the building or land and not to the person, therefore it is still enforced long after the original builder or home owner have moved on. The covenant may place restrictions on the removal or alteration of effects within the land or the property including trees and hedges. This may be the case even if there are no Tree Preservation Orders enforced or if the property does not lie within a Conservation Area. Third party permission may be required before trees and hedges are removed under a Restrictive Covenant and therefore it is advisable to seek legal advice before doing so.

Permission needs to be given by the local authority before any work can be carried out. There are serious penalties if work is carried out without consent.