TPO offence not known to law when a felling licence application required

15th June 2021

TPO offence not known to law when a felling licence application required

If you go down to the woods today and you are involved in the enforcement of Tree Preservation Orders, you may be in for a big surprise. If trees that have been felled come within the requirements for a felling licence but are also subject to a Tree Preservation Order (TPO), the TPO has no effect and the apparent breach of that order cannot be prosecuted. So found a judge in Maidstone Crown Court in a case that we were involved in last month.

The Facts

In 2017, trees were felled in an ancient woodland in Kent. The identity of the feller has never been proved, but the local authority issued proceedings against the man they believed to be responsible. The offence specified was the breach of a TPO imposed in 2010. The amount of trees felled brought the operation squarely within the felling licence regime created by the Forestry Act 1967.

The Law

To fell a tree subject to a TPO without the consent of the local authority would normally be a criminal offence. It is punishable by an unlimited fine and, if a financial benefit can be shown, a confiscation order under the Proceeds of Crime Act 2002 can follow. But the interplay between the Town and Country Planning Act 1990 (which creates the TPO regime) and the Forestry Act 1967, has created a fascinating legal matrix which when pursued to its logical conclusion produces an unexpected result.

Where trees to be felled are greater in volume than 5 m³ a felling licence is required, unless one or other of the exceptions under the Forestry Act apply. The Act makes it clear that, as soon as the felling licence regime comes into play under s. 9, a local authority can no longer “entertain“ an application for consent to fell a TPO tree. The learned judge found that the Forestry Act regime has primacy and that to prosecute for failing to apply for consent, where no application for consent could be entertained, was an affront to justice. It would be unfair to put a person on trial for that offence. Moreover, not only would a prosecution under s. 210 of the Town and Country Planning Act 1990 be an abuse of process, it would also be an attempt to prosecute for an offence not known to law. This is the case whether or not a felling licence existed, or indeed an application had even been made for a licence.

The intention of Parliament had been clear and the TPO regime was intended to be subservient to the felling licence regime. The only exception would be where a felling licence application was made and then referred for consultation to a local authority responsible for a pre-existing TPO, when the issue of consent would once more become relevant. In other words, the TPO regime would be re-engaged at that point.

The effect of the ruling – which is not subject to an appeal – may be profound, both on cases currently before the courts and those waiting an enforcement decision.

In all cases of prosecution for felling a tree or trees in breach of a TPO, whether the case was before the magistrates court or the Crown Court, if the tree or trees in question required a felling licence to be felled legally then the only remedy would be a prosecution under s. 17 of the Forestry Act 1967 for felling without a licence. This is a summary only offence which has, generally, a six month time limit.

If you would like further details of the case or you are involved in a Tree Protection Order breach, please contact Hugh Rowland on 01473 298141 or email hugh.rowland@gotelee.co.uk.

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