The purpose of this document is to set the framework for dealing with tree enforcement issues in a clear, consistent and fair manner and to ensure that activities in this regard are in accordance with current legislation and guidance. It is also to ensure that tree enforcement matters are dealt with in accordance with the Enforcement Concordat and the Council's Charter for Enforcement produced in 2001.
Tree enforcement issues
Tree enforcement issues fall into two principal categories:
unauthorised works on, damage to or removal of trees that are protected by Tree Preservation Orders or situated within Conservation Areas and
breach of planning conditions relating to tree retention and protection.
These issues are covered in Sections 2 and 3 of this document respectively.
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2. Tree preservation orders and conservation areas
- Trees can be protected under the Town and Country Planning Act 1990 (as amended) and the Town and Country Planning (Trees) Regulations 1999. Trees are protected when they are the subject of Tree Preservation Orders or within Conservation Areas (subject to certain exemptions). In general, it is an offence to cut down, uproot, lop, top, wilfully damage or wilfully destroy a protected tree without authorisation. Retention and protection of trees on development sites is also secured through the use of planning conditions.
- In the case of trees protected by a Tree Preservation Order, consent is required for any works on the trees following submission of a formal application. Any consent may be subject to conditions, and there is a right of appeal to the Secretary of State against a refusal of consent or the terms of a condition.
- Where trees are in a Conservation Area, six weeks' notice must be served on the Local Planning Authority of any proposal to carry out works on the trees. During this six week period, the Authority may raise no objection to the works or make a Tree Preservation Order to prevent them being carried out. If the Authority takes no action within six weeks, the works may go ahead as notified.
- There are two offences, which apply equally to trees protected by Tree Preservation Orders and those within Conservation Areas.
- Firstly, anyone who cuts down, uproots or wilfully destroys a tree, or who lops, tops or wilfully damages it in a way that is likely to destroy it, is liable, if convicted in the Magistrates Court, to a fine of up to £20,000. If the person is committed for trial in the Crown Court, they are liable on conviction to an unlimited fine. The Courts have held that it is not necessary for a tree to be obliterated for it to be "destroyed" for the purposes of the legislation. It is sufficient for the tree to have been rendered useless as an amenity.
- Secondly, anyone who carries out works on a tree that are not likely to destroy it is liable, if convicted in the Magistrates Court, to a fine of up to £2,500. Any proceedings for offences in this category must be brought within six months of the date the offence was committed.
- In addition to directly carrying out unauthorised works on protected trees, it is an offence to cause or permit such works.
- In order to bring a successful prosecution, the Authority must be able to prove that:
- the defendant has carried out, or caused, or permitted works on the tree
- the tree was protected
- the works were carried out without the Authority's consent and
- the works were not exempt works.
- If it is claimed that works are exempt from the usual requirements of the legislation, it is for the defendant to prove, on the balance of probabilities, that the exemption applies.
- Whenever a tree has been removed in contravention of the legislation, or because it is dead, dying or dangerous, there is an automatic duty on the landowner to plant a replacement tree of a suitable size and species at the same place as soon as reasonably possible (unless that requirement is waived by the Local Planning Authority). The replacement tree is then subject to the same protection as the tree that was lost. If the landowner fails to comply with this requirement, the Authority may serve a Tree Replacement Notice within a period of four years to ensure compliance. There are rights of appeal against Tree Replacement Notices.
Procedures for investigating complaints
- Incidents involving contraventions of the tree protection legislation may come to light as a result of complaints received by the Council. The Council may also become aware of contraventions when carrying out routine monitoring of works on development sites.
- When alleged cases of unauthorised works on a tree come to the attention of the Council, an initial investigation will be carried out as soon as possible (normally within 24 hours). The initial investigation will consist of a check to establish whether the tree is protected, whether any consent has been granted, and a site visit. In cases where it appears that protected trees are being removed and in other instances where there may be a significant impact on public amenity, a site visit will be undertaken as a matter of urgency. The legislation confers a right to enter land to carry out such investigations.
- Where it appears that unauthorised tree works have been undertaken, notes and photographs will be taken during the site visit which may be used as evidence later.
- The suspect will be identified and contacted as soon as possible in the process (this may be at the time of the initial site visit). He or she will be asked to give his or her observations on the incident and any relevant background information. If it appears that an offence has been committed and that answers to preliminary questions on site may be required as evidence, he or she may be cautioned. Any such cautions will be issued in accordance with the code of practice issued under the Police and Criminal Evidence Act 1984 and the suspect will be advised that he or she is not under arrest, is free to leave at any time and is entitled to legal representation.
- Where appropriate, the suspect will be invited to the Council offices to undertake a tape-recorded interview under caution and under the provisions of the Police and Criminal Evidence Act 1984 (see Appendix 1 for pro-forma letter inviting suspect to interview).
- A judgement will be made at the time of the initial site visit as to whether cautioning and formal questioning is appropriate at that stage. In most cases, the Council will not seek to formally interview under caution on site but will write to the suspect, seeking detailed information regarding the incident. If a satisfactory written reply is received, formal cautioning and interviewing may not be deemed necessary. In the absence of a satisfactory written response, the Council will be obliged to reconsider this matter.
- The identity of any complainant will be kept confidential and not disclosed to the alleged offender as far as practicable. However, it will be made clear to the complainant that if the case comes to court it is most likely that they will be required as a witness and in that case they would not normally be entitled to confidentiality. Complainants will be kept informed of the course of the investigation and its outcome.
- Complainants and any other witnesses will be contacted as appropriate and requested to provide written statements to be used as evidence in court. Witnesses will be informed that they may be required to appear in court to give evidence and be cross-examined as necessary.
- Suspects will be given adequate and fair opportunity to give their side of events during the course of investigations.
Options for action
The Council has a range of possible courses of action available to deal with cases of unauthorised works on protected trees. These include the following :
seek a prosecution
administer a formal caution. This is a formal process whereby the perpetrator signs a statement admitting the offence and submitting to the caution (see Appendices 2, 3 & 4 for pro-forma letter and cautions). It may be referred to at the sentencing stage if the same person is ever found guilty of a subsequent offence. It may also be taken into consideration when deciding whether or not to prosecute at a later stage for another similar offence
under section 207 of the same Act, serve a replanting direction. This is a formal procedure to secure replacement planting, which can be invoked if the landowner does not otherwise comply with a duty to carry out replacement planting and
Selection of appropriate action
- Decisions as to what action to take in cases of unauthorised works on trees will be taken in the public interest, with each case being dealt with on its own merits.
- A prosecution will not normally be brought unless the unauthorised works have resulted in a loss of public amenity.
- In most cases, a prosecution will not be brought if consent would have been granted (or no objection raised) for the works undertaken had they been applied for.
- In considering whether to bring a prosecution, regard will be had to the likelihood of the offence being repeated and the degree to which a prosecution would act as an effective deterrent. Regard will also be had to any financial advantage perceived to have been gained by carrying out the unauthorised works and whether the perpetrator has been prosecuted, cautioned or warned for similar offences in the past.
- Whilst ignorance of the law is not an excuse, the attitude and circumstances of the perpetrator will be taken into account, including any expression of regret, helpfulness and co-operation with the investigation and any indication that the perpetrator was acting in good faith. Individual personal circumstances and any other mitigating factors will be taken into consideration where appropriate.
- Two tests will be applied in cases where a prosecution appears likely, consideration of which will be undertaken in consultation with the Council's Legal Section:
- The Evidential Test: A prosecution will not be commenced unless there is sufficient, admissible and reliable evidence that the offence has been committed and that there is a reasonable prospect of conviction.
- The Public Interest Test: A prosecution will only be brought where this is in the public interest.
- Administering of formal cautions may be applied in cases where a prosecution can properly be brought but where such action is not considered appropriate in the circumstances of the case. Persons who have previously received a formal caution will normally be dealt with by prosecution.
- The planting of replacement trees will normally be required irrespective of whether the perpetrator has been prosecuted or cautioned.
Procedures for taking action
- Tree enforcement issues will be dealt with by the Tree Officers, in consultation with other officers within the Planning & Regulation Service (including the Head of Planning Services and the Enforcement Officers) and with the Council's Legal Section.
- In cases where it appears that unauthorised works have been carried out on protected trees, a report will be produced in which a recommendation will be made regarding the action to be taken. The decision on how to proceed will usually be made by the Head of Planning Services. It may in certain cases be deemed appropriate for the matter to be referred to the Council's Planning Committee.
- Formal cautions will normally be issued at the Council offices. The offender will be contacted in writing and requested to submit to the caution. Details of the offence will be provided in the letter, along with an explanation of the significance of the caution. Records will be kept of formal cautions issued and will be referred to in court if the offender commits a further offence.
- When a decision has been made to issue a formal caution, but the offender refuses to submit to the caution, the case will be reconsidered, including a consideration of whether to bring a prosecution.
- Where suspects are invited to the Council offices for a tape recorded interview under caution, the Code of Practice under the Police and Criminal Evidence Act 1984 will be adhered to.
- When replacement planting is required, monitoring will be carried out to ensure compliance.
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3. Planning conditions
Use of planning conditions relating to trees
- In granting planning consent for sites where trees are to be retained, the Council will typically use conditions relating to tree retention and protection.
- The Council will expect all conditions relating to trees to be complied with in full and will use its enforcement powers to seek compliance where necessary.
- Tree related conditions generally require that the conditions be formally cleared in writing prior to any works commencing on site (including demolition). Trees can be damaged very easily in a short space of time. It is therefore particularly important with tree related conditions that they be cleared prior to works commencing and that they be fully adhered to.
Dealing with breaches of planning control
- Breaches of planning control occur where conditions have not been formally cleared prior to works commencing or where the conditions are not complied with once works have commenced.
- The principal instrument for dealing with breaches of tree related conditions is the Temporary Stop Notice. Officers of the Council (including the Tree Officers) have delegated powers to serve such notices under Section 171E of the Town & Country Planning Act 1990. The purpose is essentially to stop further works on site until such time as conditions have been satisfactorily complied with and tree protection details have been agreed.
- If tree related conditions are not being complied with, there is usually an imminent threat of damage to trees. If it not possible to resolve the outstanding issues there and then on site, the serving of a Temporary Stop Notice will be considered. Temporary Stop Notices come into effect immediately for a period of up to 28 days.
- Contravention of a Temporary Stop Notice is an offence. A person guilty of this offence is liable, if convicted in a Magistrates Court, to a fine of up to £20,000. In a Crown Court, the potential fine is unlimited.
- If breaches of planning control lead to damage to, removal of or unauthorised works on protected trees, action may also be taken as detailed in Section 2 of this document.
Decisions upon action
- The nature of breaches of tree related conditions is such that a decision often needs to be made quickly on site. Each case will be dealt with on its own merits and Council officers will make a proper assessment of the situation prior to making a decision on how to proceed.
- The serving of a Temporary Stop Notice will be likely if the following apply:
- a clear and demonstrable breach of planning control relating to trees has occurred
- trees are being damaged or are likely to be damaged if works continue and
- the matter can not be resolved immediately on site.
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4. Further information
Woking Borough's Tree Officers will be happy to give further advice and guidance on all aspects of the tree enforcement process. They may be contacted on 01483 743419/743739.
Central government guidance/information