Construction close to trees

Trees are easily damaged by construction works, regardless of their scale. Digging a garden pond may cause damage to trees in the same way as building demolition and construction.

It is important to ensure that trees are adequately assessed before ANY work takes place.

This is a complex topic. The specialists who can help you are:

• A competent Arboricultural Consultant
• An AA Registered Consultant
• Your Local Planning Authority

Trees near buildings and people

The proximity of trees to buildings can cause nuisance and inconvenience – for example through direct building damage, heavy shade or falling debris. Trees in adjacent property overhanging boundaries or blocking light are frequently a cause of annoyance or inconvenience, and there may be remedies available to alleviate this. For further advice contact a competent Arboricultural Consultant or a competent Arboricultural Contractor.

As a tree owner you have a legal duty of care to do what is reasonable to prevent harm being caused to others by your trees.

If located close to people or objects of value, the risks posed by the trees should be assessed by a competent Arboricultural Consultant. The frequency and level of this assessment will vary from location to location and tree to tree. On occasion, remedial work or tree removal might be required.

Building subsidence and heave

Occasionally trees can cause subsidence or heave damage to structures. If you notice cracks to your building, the first thing you should do is contact your building insurers who will investigate.

If agents for your neighbour’s house ask you to carry out work to your trees because of alleged damage the trees have caused, you should advise your own building insurers and if necessary instruct a competent Arboricultural Consultant and possibly a Structural Engineer to assess the situation.

Subsidence and heave require a multi-disciplinary approach, involving a range of professionals. The following professionals should be able to help you:

• A competent Arboricultural Consultant or AA Registered Consultant
• A competent Structural Engineer
• A competent Geotechnical Expert
• Your Buildings Insurance Company

Dangerous trees

The safety of trees is nearly always the responsibility of the owner of the land on which they grow; but there are some exceptions, such as when a rental agreement requires the tenants of a property to manage the trees.

The tree owner or manager has a ‘common law’ duty of care to:

‘take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure their neighbour’

The tree owner also has a duty under the Occupiers Liability Acts to take reasonable steps to ensure visitors or trespassers on their land are safe. In practice this means that if a tree fails and causes damage to a person or property then the tree owner may be liable. The chances of making a claim, however, would usually depend on whether the owner had been negligent; for example, if the tree was obviously unsafe through damage or disease, and they failed to act to prevent the incident occurring. Therefore if you own trees it is sensible to have them regularly inspected by a competent arboriculturist.

A list of Arboricultural Association Registered Consultants is available on our website at www.trees.org.uk/Find-a-professional

The best way to deal with a dangerous tree on neighbouring land is to write to the tree owner as soon as possible politely expressing any concerns you have and asking them to have the tree checked by an arboriculturist. If you still can’t reach a satisfactory conclusion then it may be helpful to ask a third party who is known to both of you to mediate before relationships break down completely. As a last resort it may be possible to obtain a court injunction requiring the owner to deal with the tree, or in limited circumstances the local Council maybe able to help using their discretionary powers under the Local Government Miscellaneous Provisions Act 1976.

Overhanging trees and encroaching roots

It is generally best to discuss your concerns with the tree owner beforehand, but under established ‘common law’, you should be able to prune branches and roots that grow over your boundary, with or without the owner’s consent. You also have a legal duty, however, to take ‘reasonable care’ whilst undertaking the works, and you may be liable if you damage your neighbour’s tree, or cause it to become unstable. It is therefore unwise to undertake works without first consulting an arboriculturist. The parts cut off from the tree remain the property of the tree owner, so they should be offered back.

If overhanging trees or encroaching roots have caused damage to your property then you should contact your building insurer for advice. Your insurer will usually contact the owner of the trees asking them to abate the nuisance and will arrange for any repairs to be undertaken. If damage has not yet occurred, but you believe there is a foreseeable risk that the trees will cause damage in the future, then you should discuss your concerns with the owner and write to them asking them to have the trees inspected by an arboriculturist. You should keep copies of any letters sent as they prove that you have highlighted your concerns should damage occur in the future.

Tree Protection

There are a number of ways that trees can be protected by law within the UK. These include Tree Preservation Orders (TPOs), Conservation Areas, the Felling Licence system, Restrictive Covenants, and planning conditions within the planning system. It is important to find out from your local Council whether any legal restrictions apply before you undertake work on your trees as you may be liable to prosecution if permission is not first obtained.

Tree Preservation Orders (TPOs)

TPOs are administered by your local Council in its role as the Local Planning Authority (LPA) and are made to protect trees that provide a significant amenity benefit to the area.

All species of tree can be protected (but not hedges, bushes or shrubs), and a TPO can protect anything from a single tree to all trees within a defined area or woodland – but no species is automatically protected by a TPO (not even an oak!).

A TPO makes it a criminal offence to cut down, top, lop, uproot, wilfully damage or wilfully destroy a tree protected by that order, or to cause or permit such actions, without the authority’s permission. Anyone found guilty of such an offence is liable to prosecution, and an unlimited fine can be imposed for destroying or removing a protected tree without consent from the LPA.

To make an application to carry out works to a protected tree you will need to complete an application form and submit it to the LPA.

Conservation Areas

If a tree in a Conservation Area you have to give six weeks prior written notice to the LPA (by letter, email or on the LPA’s form) of any proposed work, describing what you want to do. This gives the LPA an opportunity to consider protecting the tree with a TPO. Normal TPO procedures apply if the tree is already protected by a TPO.

You do not need to give notice if the tree is less than 7.5 centimetres in diameter, measured 1.5 metres above the ground (or 10 centimetres if thinning to help the growth of other trees).

Felling Licences

Felling Licences are administered by the Forestry Commission.

You do not need a licence to fell trees in gardens. For trees outside gardens, however, you may need to apply to the Forestry Commission for a felling licence, whether or not they are covered by a TPO.

You can find out more about felling licences from the Forestry Commission website www.forestry.gov.uk

Restrictive Covenants

A restrictive covenant is a promise by one person to another, (such as a buyer of land and a seller) not to do certain things with the land or property. It binds the land and not an individual owner. This means that the restrictive covenant continues over the land or property even when the current owner(s) sells it to another person.

Covenants or other restrictions in the title of a property or conditions in a lease may require the consent of a third party prior to carrying out some sorts of tree work, including removing trees and hedges.

This may be the case even if TPO, CA and felling licence regulations do not apply. In such cases it may be advisable to consult a solicitor.

Trees and the planning system

Under the UK planning system, LPAs have a statutory duty to consider the protection and planting of trees when granting planning permission for development. The effect of development on trees, whether protected (e.g. by a TPO or Conservation Area) or not, is a material consideration that is taken into account when considering planning applications.

The amount of information required to enable the LPA to properly consider the effects of development proposals on trees varies between stages of the planning process and in relation to what sort of development is proposed. Table B.1 of British Standard 5837:2012 Trees in relation to design, demolition and construction – Recommendations provides advice to both developers and LPAs on an appropriate amount of information that will need to be provided either at the planning application stage or via conditions (see below).

Planning Conditions

Planning conditions are used by LPAs as a means of securing the retention of trees, hedgerows and other soft landscaping on sites during development and for a period following completion of the development. If planning conditions are in place then anyone wishing to undertake work to trees shown as part of the planning condition must ensure they liaise with the LPA and obtain any necessary consent or variation.

What does a Tree/Arboricultural Officer do within the planning system?

The Tree Officer is usually an employee of the local Council. Their job, like any other Council employee, is to serve the interests of the public. In the case of the Tree Officer within the Planning Department this is achieved by maximising the many and varied benefits that trees provide to the Council’s administrative area, through an input into the development management system.

If your trees are protected by a Tree Preservation Order, or you are within a Conservation Area, or the trees are protected by a condition attached to a planning permission, then you will need consent for the works.

Find out if your tree has a TPO

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More detailed information on TPOs: www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#Flowchart-1-Making-and-confirming-TPO

Your local council is responsible for making Tree Preservation Orders (TPO). You should contact your local authority and speak to the tree officer or someone in the planning department who should determine whether the making of a TPO is appropriate.

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More detailed information on TPOs: www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#Flowchart-1-Making-and-confirming-TPO

You can check to see if a property or area of land has a Tree Preservation Order on it, or if it is located within a Conservation Area, by looking at the council website or by contacting the local council (usually the planning department). If your tree is protected then you will need to apply to the Council to carry out any work.

See also A brief guide to legislation for trees

Find out if your tree has a TPO

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More detailed information on TPOs: www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#Flowchart-1-Making-and-confirming-TPO

The following advice applies to England only and is for guidance purposes only. Some trees are protected by legislation, and it is essential that you establish the legal status of trees prior to carrying out works to them. Unauthorised work to protected trees could lead to prosecution, resulting in enforcement action such as fines or a criminal record. Tree Preservation Orders, Conservation Areas, Planning Conditions, Felling Licences or Restrictive Covenants legally protect many trees in the UK.

Tree Preservation Orders (TPOs)

TPOs are administered by Local Planning Authorities (LPA) (e.g. a borough, district or unitary council or a national park authority) and are made to protect trees that bring significant amenity benefit to the local area. This protection is particularly important where trees are under threat.

All types of tree, but not hedges, bushes or shrubs, can be protected, and a TPO can protect anything from a single tree to all trees within a defined area or woodland. Any species can be protected, but no species is automatically protected by a Tree Preservation Order.

A TPO is a written order which, in general, makes it a criminal offence to cut down, top, lop, uproot, wilfully damage or wilfully destroy a tree protected by that order, or to cause or permit such actions, without the authority’s permission. Anyone found guilty of such an offence is liable. In serious cases the case may be dealt with in the Crown Court where an unlimited fine can be imposed.

To make an application to carry out tree works you will need to complete an application form and submit it to the LPA. The form can either be submitted through the Planning Portal or directly to the

LPA. You can find out more about TPOs in the Department for Communities and Local Government guide titled Protected trees: A guide to tree preservation procedures (withdrawn 7 March 2014) and it’s replacement The National Planning Policy Framework and relevant planning practice guidance document with particular reference to Tree Preservation Orders and trees in conservation areas. You might also find it helpful to seek the advice of a tree surgeon prior to making an application. A directory of Arboricultural Association Approved Contractors can be found here.

Conservation Areas

Normal TPO procedures apply if a tree in a conservation area is already protected by a TPO. But if a tree in a conservation area is not covered by a TPO, you have to give written notice to the LPA (by letter, email or on the LPA’s form) of any proposed work, describing what you want to do, at least six weeks before the work starts. This is called a ‘section 211 notice’ and it gives the LPA an opportunity to consider protecting the tree with a TPO.

You do not need to give notice of work on a tree in a conservation area less than 7.5 centimetres in diameter, measured 1.5 metres above the ground (or 10 centimetres if thinning to help the growth of other trees).

You can find out more about trees in Conservation Areas in the Department for Communities and Local Government guide titled Protected trees: A guide to tree preservation procedures (withdrawn 7 March 2014) and it’s replacement The National Planning Policy Framework and relevant planning practice guidance document with particular reference to Tree Preservation Orders and trees in conservation areas.

Trees and the planning system

Under the UK planning system, LPAs have a statutory duty to consider the protection and planting of trees when granting planning permission for proposed development. The potential effect of development on trees, whether statutorily protected (e.g. by a tree preservation order or by their inclusion within a conservation area) or not, is a material consideration that is taken into account when dealing with planning applications. Where trees are statutorily protected, it is important to contact the LPA and follow the appropriate procedures before undertaking any works that might affect the protected trees.

Planning conditions are frequently used by LPAs as a means of securing the retention of trees, hedgerows and other soft landscaping on sites during development and for a period following completion of the development. If it is proposed to retain trees for the long term then a TPO is often used rather than a planning condition. If valid planning conditions are in place then anyone wishing to undertake work to trees shown as part of the planning condition must ensure they liaise with the LPA and obtain any necessary consent or variation.

The nature and level of detail of information required to enable an LPA to properly consider the implications and effects of development proposals varies between stages and in relation to what is proposed. Table B.1 of British Standard BS 5837:2012 Trees in relation to design, demolition and construction – Recommendations provides advice to both developers and LPAs on an appropriate amount of information that will need to be provided either at the planning application stage or via conditions.

For further information you are advised to contact either your LPA or to seek advice from an Arboricultural Association Registered Consultant from the list which can be found here.

Felling Licences

Felling Licences are administered by the Forestry Commission. You do not need a licence to fell trees in gardens. However, for trees outside gardens, you may need to apply to the Forestry Commission for a felling licence, whether or not they are covered by a TPO. You can find out more about felling licences at Felling Licences quick guide (England) or in the Forestry Commission’s booklet Tree Felling – getting permission.

Sites of Special Scientific Interest (SSSI)

SSSIs (ASSIs in Northern Ireland) are designated by the Statutory Nature Conservation Organisation (SNCO) for each country of the United Kingdom. They include some of our most spectacular and beautiful habitats - large wetlands teeming with waders and waterfowl, winding chalk rivers, gorse and heather-clad heathlands, flower-rich meadows, windswept shingle beaches and remote uplands moorland and peat bog. Each SSSI will have a management plan and a list of operations requiring the SNCOs consent prior to carrying out works.

Any activity that recklessly or intentionally harms the SSSI (ASSIs in Northern Ireland) or its flora or fauna will be an offence liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to an unlimited fine. If you know the name of the Site of Special Scientific Interest and want to know more about it, you can search for it by country at England, Wales, Scotland or Northern Ireland.

Restrictive Covenants

A restrictive covenant is a promise by one person to another, (such as a buyer of land and a seller) not to do certain things with the land or property. It binds the land and not an individual owner, it "runs with the land". This means that the restrictive covenant continues over the land or property even when the current owner(s) sells it to another person. Restrictive covenants continue to have effect even though they may have been made many years ago and appear to be obsolete.

Covenants or other restrictions in the title of a property or conditions in a lease may require the consent of a third party prior to carrying out some sorts of tree work, including removing trees and hedges. This may be the case even if TPO, CA and felling licence regulations do not apply. It may be advisable to consult a solicitor.

Further information

Further information about TPO legislation can be found in the latest National Planning Policy Framework with particular reference to Tree Preservation Orders and trees in conservation areas.

More detailed information on TPOs: www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#Flowchart-1-Making-and-confirming-TPO

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Under common law rights a neighbour can cut back any foliage that overhangs the boundary to the boundary line without reference to the owner of the tree/shrub (this includes roots!). If the tree is covered by a Tree Preservation Order (TPO) or is growing within a Conservation Area, the consent of the local planning authority must first be obtained. There is no right for anyone to enter the tree owner's land to carry out these works.

More detailed information on TPOs: www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#Flowchart-1-Making-and-confirming-TPO

Topics:
Distance, tpo, tree preservation order, boundary, common law, roots, hedge, tree roots

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Find a Professional
If you need advice or tree management services - always use an Arb Approved Contractor (Tree work) or a Registered Consultant (Arboricultural consultant).

If the building work proposed requires planning consent, all trees which could potentially be affected by the development (including those off-site) should be assessed by an arboricultural consultant in accordance with British Standard BS5837:2012 Trees in relation to design, demolition and construction – Recommendations, and details of this submitted to the Local Planning Authority with the planning application.

This assessment will consider tree condition, dimensions, likely retention span (years), and future growth potential, and will inform design in relation to how close you can build to trees. If the tree is to be retained, constraints to be considered are those below ground and above ground. The below-ground constraints are dictated by the root protection area (RPA) the calculation of which is based on the stem diameter; the above ground constraints are dictated by the height and spread of the tree, future growth potential, shading potential and what you are proposing to construct.

If the work proposed does not require planning consent, it is advised that you still have the trees assessed in accordance with BS5837 to inform good design. If your tree is protected by a Tree Preservation Order (TPO) or is located within a conservation area, legislation relating to tree protection overrides that of permitted development rights, and you risk prosecution if protected trees are damaged.

You will require the services of an arboricultural consultant to assist you with these matters.

Further information:

• British Standard BS5837:2012 Trees in relation to design, demolition and construction – Recommendations
• AA Tree Protections Brief Guide
• AA Registered Consultants
• AA Approved Contractors
• More detailed information on TPOs: www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#Flowchart-1-Making-and-confirming-TPO

You can check to see if a property or area of land has a Tree Preservation Order on it, or if it is located within a Conservation Area, by looking at the council website or by contacting the local council (usually the planning department). If your tree is protected then you will need to apply to the Council to carry out any work. See also ‘A brief guide to legislation for trees

Find out if your tree has a TPO

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More detailed information on TPOs: www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#Flowchart-1-Making-and-confirming-TPO