The general effect of a tree preservation order (TPO) is to protect the relevant tree from felling, topping, lopping, uprooting and willful damage or destruction without the consent of the local planning authority. A breach of a TPO can result in a maximum fine of £20,000.

However, you may be aware that there is an exception to this rule, which is set out in regulation 14 (a) (vii) of the Town and Country Planning (Tree Preservation) (England) Regulations 2012 which is that work that is “necessary to implement a planning permission” (other than an outline planning permission) may be carried out.

Therefore, can you fell a tree, if its presence would frustrate the implementation of planning permission?

A recent High Court case would suggest that developers should consider the terms of the planning consent very carefully before carrying out works on protected trees, even if it is apparent that the trees would stand in the way of implementation.

The case brought before the Court on 21 May this year was R (Wellingborough Walks Action Group Ltd) v North Northamptonshire Council [2024] EWHC 1225 (Admin).

The developer wanted to construct a southern access road to their development known as Stanton Cross, Wellingborough. As part of this, they felled 15 mature Lime trees, thought to be over 176 years old, which were planted in a double row along either side of a pedestrian walk. All were individually protected by a TPO.

One of the conditions of the planning consent was that a plan should have been submitted to the local authority before work began, identifying all existing trees, and showing the measures to be employed to protect them.

The Court concluded that on the interpretation of this planning consent, the works were not authorised, as they were carried out before the plan had been approved by the local authority, and therefore, did not fall within the exception afforded by regulation 14 (a) (vii).

Developers should therefore ensure that all pre-commencement conditions have been satisfied, and exercise additional caution where there are TPO trees on site.

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