Often, trees on private property are subject to Tree Preservation Orders (TPOs) which are set by the local authority and ban the owners of the property from cutting down or felling the trees without the explicit consent of the local authority. These can be trees on residential property, agricultural land or commercial premises.
If trees which are protected under a Tree Preservation Order are cut down, pruned or felled without consent, and without evidence of them being dangerous, a criminal offence has been committed, which can result in an unlimited fine being issued by the courts. The liability of this is clear, with the person who cut them down being liable for the offence. This remains the case even if the property is sold – the liability remains with whomever carried out the damage, not the owner of the property.
This remains the case even if you are unaware that a tree is protected under a TPO. This was upheld in the case of Maidstone Borough Council v Mortimer, when a professional tree feller was found to be liable for cutting down an oak tree which, unbeknownst to the tree feller, was protected under a TPO.
However, whilst the criminal liability does not pass to the owners of the property upon sale, the liability to replace any protected trees does. This means that should you purchase a property where a protected tree has been cut down, you will be responsible for replanting trees of the same type which were protected and cut down. If the trees are not replanted, the local authority can serve a notice on the home owner requiring this to be done.
The only defence that there may be for felling or cutting down a protected tree without the consent of the local authority is if the work was done in order to comply with a planning permission and that the planning permission could not be implemented unless the felling was done. In such circumstances, no criminal offence has been committed and no replanting is required.
It is therefore imperative to ascertain if the property you are buying has any trees protected under a TPO on it and, if so, that the terms of the TPO has been complied with.
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