Trees and the law

Tree Preservation Orders

Tree Preservation Orders (TPOs) are used to protect selected trees and woodlands whose removal would have significant impact on the amenity of an area. The practical effect of a TPO is to prohibit the felling, pruning or uprooting of trees without the consent of the Local Planning Authority (LPA). A TPO extends to the whole tree including the roots.

Should anyone wish to fell, prune or uproot a tree covered by a TPO, they (the applicant) must:

• apply in writing to the LPA setting out the tree works they wish to carry out and why, clearly identifying the tree(s) - if necessary by reference to a plan and the TPO
• not carry out any work on a tree until written permission has been granted by the LPA
• strictly adhere to any work approved and associated conditions imposed by the LPA in terms of extent of pruning and type of operation
• The LPA's permission is always needed to work on a protected tree except for cutting down or cutting back a tree:
• if it is urgently necessary in the interests of safety
• in line with an obligation under an act of Parliament, or
• on statutory undertakers' land, or
• which is directly in the way of development that is about to start for which detailed planning permission has been granted
• If there is any doubt about whether works are exempt, checks should be made with the LPA.

Conservation Areas

Most trees in a Conservation Area (CA) have protection. Anyone proposing to work on a tree in a Conservation Area which is not protected by a TPO, but has a trunk diameter over 75mm (3in) when measured at 1.5m (59in) from ground level, is required to give notice to the LPA concerned.

Anyone wishing to fell, prune or uproot a tree (as defined above) within a Conservation Area, must give six weeks notice in writing to the LPA detailing the nature and extent of the proposed work and identify the trees.

The LPA may, if it sees fit, place a TPO on the tree and the TPO procedures would then apply - that is, a formal application for permission would have to be made to the LPA. If a TPO has not been made after six weeks, the work may proceed but if it is not completed within two years, a further notice is needed. Such work must be consistent with that specified in the notice of intention.

Working on trees in Conservation Areas without giving six weeks written notification or before the six-week period has expired is an offence and the LPA may prosecute. The penalties are as for TPOs.

Penalties

Deliberate destruction of a protected tree without permission or in contravention of Conservation Area legislation, or damage in a manner likely to destroy it, can incur a fine up to £20,000 on conviction in a sheriff court. In determining the amount of the fine, the court will take account of any financial benefits arising from the offence. For other offences fines of up to £2,500 may be awarded. Serious cases may be taken to the High Court, where there is no limit to any fine that may be imposed on conviction.

Replacement trees

Landowners or their agents will have to plant a replacement tree if:

• they cut down or destroy a protected tree (TPO or CA) in breach of the legislation, or
• except in the case of woodland, because the tree is dying, dead or dangerous, unless on application the LPA says there is no need.

The planning authority may give permission to cut down a protected tree but make replanting a condition of the consent.

LPAs have legal powers to ensure that a replacement tree is planted when required.

Trees and development

One of the most common threats to trees comes from development. The LPA can protect as many of the trees on the site as is appropriate. This is usually most effectively achieved by TPOs.

A TPO may be made to safeguard trees on a site when development is still in the planning stage. However, the grant of full planning permission may permit the removal of those trees that directly impede the approved development when it begins.

Unsafe trees

The landowner or their agent will not normally be held responsible in law for damage caused by a tree falling or losing branches if the failure could not reasonably have been foreseen. However, if the tree had obvious signs of disease or structural weakness, the owner might be sued for any damage caused.

It is therefore particularly important that trees which are in public places or close to areas to which the public has access are regularly inspected to check on their condition and any necessary works carried out. Even though a tree may be covered by a TPO or stand in a Conservation Area consent is not required for the felling or uprooting of a tree where urgently required for safety. If a tree is considered to be dangerous, professional advice should be sought. However, unless the danger is imminent, the LPA should be given five days notice before any work commences. In order to justify the actions, proof may be required by the LPA detailing the condition of the tree before the remedial work was undertaken. To avoid complications, prior consultation with the LPA is therefore encouraged.

Planning Conditions

Trees are often retained as a condition of planning consent and if your property was constructed within the last 20 years it would be wise to check with the LPA before removing trees.

Roads Scotland Act 1984

If a tree overhangs the highway or footway, causing a danger by obstructing the passage of vehicles or pedestrians or interfering with sight lines or lights, the highway authority may require the owner or occupier to deal with the tree in order to remove the problem. There are similar provisions for dealing with dead or diseased trees, which are likely to fall on the highway or footpath. If the owner fails to comply, then the highway authority may do the work and charge the owner.

Trees that cross boundaries

There is no requirement in law to keep a hedge trimmed or to prevent trees spreading over a boundary. It is probably for this reason that many disputes arise in the first place. However, whilst there is no obligation to prune trees, if branches or roots encroach on to neighbouring land, the Courts have regarded them as causing a nuisance, in the legal sense, even if no damage is caused.

Branches

The title of a property includes not only the soil on which the property stands, but also all that is above and below it. With few exceptions (e.g. passage of aircraft) the owner is therefore entitled to the uninterrupted right of the air above the land. On this principle, therefore, the branch of a tree which overhangs a neighbour's land is an infringement of his rights, and, although it may cause no actual harm, is considered in law to be a special kind of nuisance. The tree owner is not obliged to cut back the overhanging branches, but the person whose property is overhung has the right to cut back the branches to the boundary to remove the nuisance. This is known as abatement (care is needed if the tree is protected, see Tree Preservation Orders). Although there is no obligation to ask the owner's permission or give notice of any intention to cut back, it would be good neighbourliness to discuss the problem in a friendly way with the owner first - it may be possible to obtain help or agreement to remove more than was envisaged.

If pruning is carried out without the owner's permission it is important not to enter property, or for equipment to cross the boundary - for example it may be illegal entry to lean a ladder against the trunk of a tree as an aid to cutting a branch if the trunk is on the other side of the boundary. Even after removing branches, the prunings remain the property of the tree owner and therefore the branches, fruit, leaves and cones cannot be put to use without the owner's permission. To do so would constitute an offence known as conversion i.e. appropriation of the owner's property. Nor should material simply be burned or disposed of because it appears to be of no use. The material may be returned to the owner's property, but if doing so causes damage (e.g. by throwing branches over the fence and damaging the owner's conservatory) there may be a liability to pay for the damage. But if the owner gives notice (preferably in writing) that he does not want the material then it may be disposed of. However, there is no precedent for recovery from the owner of the expenses incurred in disposing of the residues.

Roots

Like branches, tree roots do not respect boundaries - they are opportunistic and simply grow wherever the soil conditions are most suitable. Roots crossing a boundary are a nuisance and may be cut back to the boundary in the same way as branches (but caution should be exercised if roots belong to a protected tree, see Tree Preservation Orders). However, cutting roots may adversely affect tree stability and its ability to take up water and nutrients. The nearer to the trunk cutting occurs the greater the risk to the safety and health of the tree. A tree owner may have a claim against his neighbour if the tree dies or falls over as a result of such action, although this has not been tested in Court.

Having crossed a boundary roots may enter a defective drain and cause a blockage; they may grow under and crack pavements and driveways; and they may contribute to building subsidence. In such cases a neighbour may seek recompense for the damage caused and a Court injunction restraining the owner from allowing further root trespass. However, in considering liability, damages may only be awarded if it can be shown that the tree owner was negligent, that is, that the damage was reasonably foreseeable and the tree owner should have taken preventative action. For example, a building may suffer subsidence because of shrinkage of a clay soil due to moisture extraction by tree roots. However, if the surrounding soil was sandy (i.e. not shrinkable) and there was no way of knowing, without a full localised soil survey, that there was an isolated pocket of clay, the tree owner may be found not negligent since the damage was not reasonably foreseeable.

This text has been prepared for information or guidance purposes only. It is not intended and must not be relied upon as a definitive statement of law in relation to trees. Appropriate legal advice must always be obtained. Further, whilst the statements are believed to be accurate no responsibility or liability will be accepted for any inaccuracies.

Felling permission

The regulations are set out in the booklet "Tree felling in Scotland - Getting Permission" (Scottish Forestry) from which this information is taken. This is a short summary of felling permissions and does not include all details and exemptions.

From April 1, 2019, anyone wishing to fell trees in Scotland requires a Felling Permission issued by Scottish Forestry, unless an exemption applies, or another form of felling approval has been previously issued.

Permissions are not required to fell trees if any of the following conditions apply;

• the trees in a garden, orchard, church yard, or public open space
• any trees with a diameter at breast height (measured at 1.3m from the ground) of 10cm or less
• where felling is immediately required for the purposes of carrying out development authorised by planning permission
• where required by order of a court, or tribunal or by any other enactment

Applications can be made by landowners and tenants with the written consent of the landowner. A landowner can also have an agent or consultant submit the application for them provided they are in possession of a signed mandate. Applications should be submitted at least three months before felling is due to commence. Felling must not commence until permission has been issued.

Scottish Forestry will check applications for accuracy. Consultations may take place with the local authority and any other statutory authority concerned to ensure relevant environmental or land-use aspects of the proposal are taken into account. Permissions may only be issued on condition that replanting is carried out.  Planting grants may be available where a replanting condition is imposed.

It is an offence to fell trees without a Felling Permission and where exemptions do not apply. This can be mean, upon conviction, a fine of up to £5000 per tree and a criminal record for all involved in the felling.

In certain cases, whether or not a felling permission is needed, permission or prior notice may be required for proposed felling. Examples include Sites of Special Scientific Interest (SSSI), Conservation Areas and Tree Preservation Orders.

More information about Felling Permissions and applications can be acquired from Scottish Forestry.