Damage to a protected tree during development

Severing roots inside a root protection area is an offence if the tree is protected, and the fact that a machine operator did it without being told to makes no difference to the company's exposure. Section 210 of the Town and Country Planning Act 1990 makes it an offence to cut down, uproot, top, lop, wilfully destroy or wilfully damage a tree in contravention of a Tree Preservation Order. Wilful, in that context, means the act was deliberate. It does not mean you intended to harm the tree.

That distinction is the whole problem on a live site. Nobody sets out to kill an oak. They dig a service trench where the drawing says a trench goes, and the drawing was never checked against the tree protection plan.

What counts as damaging a protected tree

The protection comes from three places. A Tree Preservation Order covers named trees, groups, areas or woodlands. Section 211 of the 1990 Act covers all trees above a size threshold in a conservation area, requiring six weeks notice to the authority before works. And a planning condition requiring compliance with an arboricultural method statement protects trees whether or not they carry an Order.

Damage is not limited to felling. Courts have treated the offence as covering acts that destroy or substantially harm the tree, and in practice an authority will pursue anything that renders a tree's future doubtful: severing structural roots, compacting the rooting zone, raising or lowering levels over the roots, spilling fuel or cement washings into the soil, or stripping bark with a bucket.

Destruction, in the arboricultural sense used in the courts, is reached when a tree's value as an amenity has effectively been removed, even if it is still standing and in leaf. A tree whose roots have been cut on two sides is a tree that will fail within a few seasons, and an authority with a competent arboricultural officer will say so.

The ways damage happens on site

Almost always one of these.

• A service trench or a drain run cut through the root protection area because the utilities layout was drawn after the tree protection plan.
• Material stored, or a site hut or a wheel wash placed, inside the fencing because it was the only flat ground.
• Protective fencing moved to allow a delivery, then not put back.
• Levels raised over the roots to form a driveway or a patio, which suffocates them as effectively as cutting them.
• Concrete washout, diesel spill or a hydraulic hose failure within the rooting zone.
• A retaining structure built inside the root protection area where a no-dig alternative was available, which the note on retaining walls and level changes in a root protection area looks at in detail.

The pattern is the same each time. The tree protection plan existed, was approved, and then the sequence of trades on site did not match it.

Prosecution and the powers available

The local planning authority brings the prosecution, usually through its legal team on the tree officer's evidence. Section 210 provides for conviction either summarily or on indictment, with an unlimited fine available on indictment, and section 210(3) directs the court to have particular regard to any financial benefit that has come or is likely to come to the defendant as a result of the offence.

That last provision is the one developers underestimate. Where removing a tree unlocked an extra plot, the benefit the court considers is the uplift in value, not the cost of the felling. A lesser offence covers other contraventions of an Order, and the same enforcement route applies to works in a conservation area carried out without the section 211 notice.

Beyond prosecution the authority can seek an injunction to stop continuing works, serve a breach of condition notice under section 187A where a tree protection condition has been broken, and serve a tree replacement notice. Conviction also sits on the company's record for future prequalification questionnaires, which tends to concentrate minds faster than the fine does.

Three things usually decide whether a prosecution follows: whether the tree was clearly protected and the protection clearly communicated on site, whether anyone warned the operative and was ignored, and whether the developer reported it or was found out.

Replacement duties after a tree is lost

Where a tree subject to an Order is removed, uprooted or destroyed in contravention of the Order, section 206 of the 1990 Act places a duty on the landowner to plant a replacement tree of appropriate size and species at the same place, as soon as reasonably practicable. The duty runs with the land. It passes to a successor in title, which is a point worth raising in due diligence on a site with recent tree loss.

If the owner does not comply, the authority may serve a tree replacement notice under section 207 specifying the tree and the period. The replacement then becomes subject to the original Order automatically, so the obligation to protect it carries forward.

"At the same place" is taken seriously. An offer to plant three trees elsewhere on the site, or a contribution to a street tree fund, is a negotiation rather than compliance, and some authorities will not negotiate at all where the loss enabled a built form that now occupies the planting position. That is a design risk to resolve before the tree is touched, not after. Where a condition and an Order appear to pull in different directions, the conflict is a real one and is dealt with in planning condition and TPO consent conflict.

Supervision that prevents the problem

The documents that stop this are the tree protection plan and the arboricultural method statement prepared under BS 5837:2012, and they only work if someone owns them on site. A workable regime:

1. Hold a pre-start meeting on site with the principal contractor, the ground worker, the tree officer and the project arboriculturist, and walk the fence line together.
2. Install protective fencing to the specification in BS 5837 before any plant arrives, and photograph it with a dated record.
3. Mark the root protection areas on every drawing that any trade uses, including the drainage and utilities layouts.
4. Set hold points in the method statement, with written arboricultural sign-off before excavation within or adjacent to a root protection area.
5. Name one person responsible for authorising any movement of fencing, and make the authorisation written.
6. Run a monthly photographic record for the duration, because it is the evidence you will want if an allegation comes later.

The cost of arboricultural supervision on a site with two or three protected trees is a small fraction of the cost of one prosecution plus a redesign, and the tree survey and method statement you already have is the basis for it.

Reporting a breach you caused

Tell the tree officer the same day. This is counter-intuitive and it is still the right call.

An authority that finds out from a neighbour's photograph treats the matter as concealment. An authority told promptly by a developer who has already instructed an arboriculturist to assess the harm and propose remedial works is dealing with an incident rather than an attitude. Prosecution decisions involve a public interest test, and cooperation sits on the right side of it.

The practical steps are to stop work in the affected area, record what happened and when, instruct the project arboriculturist to inspect and report on the extent of root loss or compaction, and implement whatever remediation is realistic. Decompaction by air spading, mulching, irrigation through the following growing season and sometimes a reduction of the crown to rebalance the tree are the usual measures. None of them undoes severed structural roots. Say that in the report rather than implying a cure, because the officer will have it reviewed.

What it does to the permission

A tree protection condition is a condition like any other, so breaching it puts the development in breach of the permission. On a site where the condition is worded as a pre-commencement requirement, work carried out without the approved details may be unauthorised development in its own right.

Beyond that, the loss of a tree the scheme was designed around can undermine the planning balance. A layout justified on the retention of a mature boundary group reads differently when the group has gone, and a subsequent application on the remainder of the site faces a planning history that now includes an enforcement file. Appeals on this ground turn on the arboricultural evidence rather than on the law, and the material in arboricultural evidence at appeal is the right place to start.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. Take advice from a solicitor if a prosecution is in prospect.

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