Tree Preservation Orders (TPOs) – Making an Order and Confirming an Order

A Tree Protection Order or TPO is an Order made by a local planning authority in England to protect a tree, a group of trees in a particular area or a woodland. TPOs are made in the interests of amenity and ordinary members of the public can request them. The list of offences created by a TPO, which include wilfully damaging or cutting down a protected tree, are strict liability offences. This is to say that, claiming ignorance to the protected status of the tree/s in question is not an excuse. The public has access to a register of TPOs.

TPO legislation has changed over time. Part VIII of the Town and Country Planning Act 1990 was amended by the Town and Country Planning (Tree Preservation)(England) Regulations 2012, with the changes coming into force in April 2012. Section 192 of the Planning Act 2008 and Part VI of the Localism Act 2011 also made amendments to the 1990 Act. Countryside hedgerows and their removal are regulated under different legislation.

Once a TPO is in place it prohibits the cutting down, topping, lopping, uprooting or wilful damage of the protected tree/s without written consent of the Local Authority. It is the view of the Secretary of State that cutting roots is also a prohibited activity. These prohibitive rules place a responsibility on tree owners.

It is possible that a TPO be initiated by the Local Authority themselves, but it may just as easily be anyone else. Anyone can request an authority to make a TPO and other parties will often do this too.

On the issue of ‘amenity’, the term does not have a definition in law, either statutory or in case law. Authorities are basically required to show that an Order is to the benefit of the public and that this is to a reasonable degree. This benefit may be tangible in the present day or anticipated in the future. When making a judgment on amenity the Authority in question will consider the visibility of the trees or woodland in question. They will also consider the characteristics. This could include the relationship of the wood to the landscape or the size and form of trees which are considered to be in need of protection. Their importance to nature conservation and the response to climate change can be examined as well. Local Authorities will generally have ‘Tree Strategies’, as well as the existing register – both of which they will refer to when making and reviewing TPOs.

It has to be worthwhile for an Authority to make an Order. If the trees are well looked after and not at risk then they are unlikely to action anything. It must be ‘expedient’ for them to put an Order in place. Change of ownership or development pressures are two of the more obvious examples of woodland facing the risk of damage or destruction.

Where an Authority chooses to make an Order, notice is served on all people with an interest in the land, whilst a copy of the Order is made available publicly. The Authority invites representations; this is an opportunity to make comments and objections.

The Authority must then make a decision to either confirm the Order, or not, within 6 months. As they are the ones who propose and confirm Orders, the Authority must show on confirmation that they have made it in a fair-minded manner. The Order will have a map annexed to it. So that any future prosecution attempts are more likely to be successful it is important that they are very accurate. Legislation does not state that scientific names of trees are required, but this is an example of something that would help.

All Orders are placed in the local land charges register. The Secretary of State does not hear cases for claimants appealing against a TPO confirmation, though there is a right to appeal to them if an application to carry out work on trees under a TPO is refused (or granted subject to conditions).