In this blog we look at the law surrounding tree and hedgerow removal and consider the following:
- The relevant planning consents needed
- The necessary licences required
- Tree Preservation Orders
- Hedgerow regulations
- Protected species
- Trees in conservation areas
- The relevant legislation
- Consequences for breaching regulations
Planning permission
This is relevant for both tree felling and hedgerow removal. If full planning permission has been obtained, trees may be felled and hedgerows removed within the red line boundary provided that any relevant planning conditions are discharged and that the law regarding protected species such as bats, dormice, nesting birds and badgers is complied with. A protected species licence may be required in some cases.
However, if only outline planning permission has been obtained, or no permissions exist at all, the following queries arise:
- is a Forestry Commission felling licence required?
- are any Tree Preservation Orders in place?
- does a Hedgerow Removal Notice need to be served?
- is a Protected Species licence needed?
In all cases consider the Environmental Impact Assessment (EIA) (Forestry) (England and Wales) Regulations 1999.
Felling Licences for Felling Trees Prior to Full Planning Permission
A Forestry Commission felling licence is required to fell trees unless an exemption applies. It is the responsibility of the tree owner, agent or tree contractor to ensure that a licence is in place: anyone involved could be prosecuted if this is not the case.
Exemptions include:
- trees measuring 5 cubic metres can be felled per calendar quarter
- small trees, i.e., with a tree trunk diameter of 8cm or less (at 1.3m) can be felled
- dangerous trees can be felled: evidence of the perceived risk must be made available
- fruit trees and trees in a garden can be felled
If no exemption applies, then a felling licence is needed. Failure to comply is a criminal offence which may incur a fine and/or a restocking notice. Most felling licences are issued for a five-year period and usually include conditions requiring felled areas to be replanted or allowed to regenerate. Once issued, a licence cannot be withdrawn and in the same way, once felling has started, it cannot be amended. Lopping and topping work including pollarding does not require a felling licence.
Tree Preservation Orders (TPOs)
When applying for a felling licence, the Forestry Commission must be informed about whether any trees involved are covered by a TPO or are in a conservation area. TPOs can apply to a single tree, a group or a woodland. If a TPO is in place, the local planning authority’s written consent is required to fell, prune, damage or destroy the tree.
Exemptions to this requirement include:
- Where full planning permission is in place, tree felling can take place without the need to give notice or to obtain consent from the local planning authority (LPA).
- LPA consent is not required to fell a dead tree, but notice must still be given.
- Dangerous trees can be felled without planning authority consent if there is an immediate risk, however, notice must be given and evidence of the danger is required; professional advice many be needed in such cases.
Hedgerows
Hedgerows in England are protected under the Hedgerows Regulation 1997. The LPA must be consulted regarding total removal. A Hedgerow Removal Notice (prior to full planning) is required for removing a hedgerow that is located on or next to specific categories of land, such as conservation areas, or where a hedge is over 20m in length or less than 20m but connecting with other hedges at each end.
The LPA has 42 days to respond to the Notice; if there is no response in this time, the hedgerow can be removed. Failure to give the LPA notice is a criminal offence subject to fines.
Protected Species
Protected species must always be considered when tree felling or hedgerow removal is planned. A European Protected Species (EPS) mitigation licence may be required by Natural England under The Conservation of Habitats & Species Regulations (2017) if felling could affect any relevant species. If protected species are discovered during tree felling work, the work should stop and Natural England must be contacted.
Trees in Conservation Areas
The LPA must be notified six weeks before work on trees in conservation areas is carried out by submission of a Section 211 Notice, unless an exception applies. Section 211 only applies to trees in conservation areas that are not protected by a TPO.
The planning authority can respond to a Section 211 Notice in three ways: it can create a TPO if this is justified; it can decide not to impose a TPO and inform the notice giver that works can go ahead or it can decide not to make a TPO and allow the six week notice period to end. The works can go ahead following expiry of the six week notice period or earlier with planning authority consent; works must be carried out within two years of the date of the notice.
To fell trees in a Site of Special Scientific Interest (SSSI), a felling licence must be applied for and a supplementary Notice of Operations giving details of how the SSSI will be protected during the work must be completed. Felling trees near an ancient monument may require scheduled monument consent.
Relevant Legislation
The Forestry Act 1967 has powers to control the felling of trees; in addition, regard must be given to:
The Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999 which control tree felling in certain circumstances including converting the land to another land use.
The Wildlife & Countryside Act 1981 which states that it is an offence to intentionally damage nests or damage or disturb places of shelter for any protected species.
The Conservation of Habitats & Species Regulations (2017) which protects plants, animals and their habitats.
Advice on how tree operations can be carried out to comply with these regulations is available from the Forestry Commission and Natural England.
The UK Forestry Standard, which sets out the government’s approach to sustainable woodland management, giving requirements and guidelines for regulation and monitoring of all woodland regardless of ownership.
The law on Tree Preservation Orders is in Part VIII of the Town and Country Planning Act 1990 as amended and in the Town and Country Planning (Tree Preservation) (England) Regulations 2012 which came into force on 6th April 2012. Section 192 of the Planning Act 2008 made further amendments to the 1990 Act which allowed for the transfer of provisions from within existing Tree Preservation Orders to regulations. Part 6 of the Localism Act 2011 amended section 210 of the Town and Country Planning Act 1990 concerning time limits for proceedings in regard to non-compliance with Tree Preservation Order regulations.
Consequences for Failing To Follow the Correct Procedures:
- Felling trees without a licence is a criminal offence: the maximum fine payable on conviction is £2,500; protected species criminal offences incur unlimited fines.
- The Forestry Commission may also issue a `Restocking Notice,’ a requirement to replant trees that have been illegally felled and maintain the replacement trees for up to 10 years.
- An offender may be pursued for any incremental increase in the value of their land following an unlawful tree felling under the Proceeds of Crime Act 2002.
Ready to get started?
Before purchasing woodland for sale or when considering felling trees as part of a woodland management scheme, a tree survey or EIA may be required from a specialist company such as Arbtech Consulting Ltd.https://arbtech.co.uk/contact-us/ Arbtech are the UK’s number one ecological and arboricultural consultancy with a team covering the entire UK.
