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TREES AND THE LAW

Introduction
The law relating to trees is complex. Therefore, the following details are only intended as a guide to make you aware of the most commonly encountered legislation and whom to contact when seeking further advice.

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.

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 licenses
The regulations are set out in the booklet "Tree Felling - Getting Permission" (Forestry Commission), from which this information is taken.

A licence from the Forestry Commission is normally required to fell growing trees (though not for lopping and topping), but in any calendar quarter up to five cubic metres may be felled by an occupier, provided not more than two cubic metres are sold.

Licences are not required to fell trees if any of the following conditions apply:
  • the felling is in accordance with an approved plan of operations under one of the Forestry Commission's grant schemes
  • the trees are in a garden, orchard, churchyard or public open space
  • the trees are all below 8cm (3in) in diameter, measured 1.3m (43in) from the ground; or in the case of thinnings, below 15cm (6in) diameter; or in the case of coppice underwood, below 15cm (6in) in diameter
  • the trees are interfering with permitted development or statutory works by public bodies
  • the felling is in compliance with an act of parliament
Application for a felling licence should be made by the landowner or tenant, or by an agent acting on behalf of the owner or tenant. Applications should be submitted, at least three months before felling is due to commence, to the relevant regional office of the Forestry Commission, on forms obtainable from them. Felling must not commence until a licence has been issued.

Usually the Forestry Commission will arrange for the trees to be inspected. Consultations may take place with the local authority and any other statutory authority concerned in order to ensure that relevant environmental or land-use aspects of the proposal are taken into account.

Where forestry or amenity considerations are important, a licence may only be issued on condition that replanting is carried out. A licence for the felling of broadleaves will normally be conditional on their being replaced with broadleaves. Any such conditions will be discussed with the applicant before the licence is issued. Planting grants will normally be available where a replanting condition has been imposed.

Provision is made for appeal against refusal of a licence and for appeal against replanting conditions.

The licence is valid for a set period of years and if it expires before felling is completed a replacement licence must be applied for and issued before felling can continue. Any felling without a licence, where one is needed, is an offence and carries a liability to a fine not exceeding 1,000 or twice the value of the trees, whichever is higher.

In certain cases, whether or not a felling licence is needed, permission or prior notification may be required for any proposed felling. Examples include Sites of Special Scientific Interest1 (SSSI) and Conservation Areas. Where a Tree Preservation Order (TPO) applies, the application will be referred to the LPA.

Notes: 1. At the present time there are no SSSIs in Edinburgh notified for woodland habitat, so details of the SSSI legislation have been omitted.

The above text is based on text appearing in the Tree Warden Action Pack (The Tree Council) modified to reflect Scottish law and legislation.

For further information about tree law contact:

Arboricultural Officer
Landscape and Enforcement
The City of Edinburgh Council
Waverley Court
4 East Market Street
Edinburgh
EH8 8BG
Tel: 0131 529 3919


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