Tree preservation orders and what they mean for your project

You have got your heart set on extending the house, or maybe you have bought a plot and you are planning a new build, and then somebody mentions that there is a tree preservation order on the site. Suddenly you are not sure whether you can build at all, whether the tree has to stay exactly where it is, or whether there is a process to deal with it. In Derbyshire, where a lot of properties back onto mature woodland or sit on older plots with established trees, this comes up more often than you would think.

A tree preservation order, usually shortened to TPO, is an order made by your local planning authority to protect specific trees, groups of trees, or entire woodlands. The protection exists because those trees are considered important to the character and amenity of the area, and a TPO makes it a legal offence to cut down, uproot, top, lop, or wilfully damage or destroy the protected trees without the council's written consent. The fines for breaching a TPO can be unlimited in the Crown Court, so this is not something to take lightly or assume you can sort out after the fact.

TPOs have been part of the planning system since 1947. The current rules in England are in Part VIII of the Town and Country Planning Act 1990 and the Town and Country Planning (Tree Preservation) (England) Regulations 2012. They apply to any species of tree. It does not matter whether it is an oak, a willow, a fruit tree or a conifer. If the council considers it worthy of protection and it is under threat, they can make an order on it, and they can do it very quickly when they need to.

Before you do anything with a building project, you need to check. Your local planning authority holds a register of all tree preservation orders in its area and you can ask to see it. Most councils now have an online mapping system where you can search by address, though the quality of these varies from one authority to another. Amber Valley Borough Council, Derby City Council, Chesterfield Borough Council and the other authorities we submit to regularly all maintain TPO registers and will respond to a direct enquiry if the online system is not clear enough.

If you are buying a property, this should come up in the local authority search that your solicitor carries out as part of the conveyancing. But it does not always get flagged clearly in those results, so if there are mature trees on or near the site it is worth asking the question directly rather than assuming the search would have caught it. We have had clients find out about a TPO after they have already had design drawings done, and while that does not necessarily mean the project cannot go ahead, it does mean it needs redesigning around the tree rather than the other way round, which costs time and money that could have been avoided.

It is also worth knowing that trees in conservation areas have automatic protection even without a specific TPO. If your property is in a conservation area, you need to give the council six weeks' written notice before doing any work to a tree, even pruning, so the council has time to decide whether to make a formal order. This catches people out regularly because the conservation area protection is less well known than TPOs and the trees do not have to be individually listed anywhere for the protection to apply.

Having a TPO on a tree does not mean you can never touch it. It means you need the council's written consent first. You apply to the local planning authority using the standard application form for works to protected trees, and the application needs to describe exactly what you want to do and why. "I want to build an extension and the tree is in the way" is not going to be enough on its own. The council will want to understand what alternatives have been considered, whether the tree could be retained with a modified design, and whether the amenity value of the tree outweighs the benefit of the proposed work.

The sorts of work that typically get approved include crown reduction where a tree has grown to the point where it is causing structural damage or blocking light to an unreasonable degree, removal of dead or dangerous branches, and sometimes full removal where the tree is genuinely dying or where the development benefits are considered to outweigh the loss. If the council does consent to removing a protected tree, they will usually attach a condition requiring you to plant a replacement, and that replacement will itself be protected.

There are a few exemptions where you do not need to apply. Dead trees can be removed without consent, though you need to give the council five days' written notice before you do it so they can check. Trees that are dying or have become dangerous can be dealt with urgently, but again the council needs to be notified as soon as practicable and "dangerous" has a specific meaning. A tree you personally find inconvenient is not dangerous. A tree with a significant structural defect that a qualified arborist has assessed as posing an imminent risk to persons or property is dangerous. The distinction matters because claiming an exemption you are not entitled to carries the same penalties as breaching the order outright.

Fruit trees that are cultivated for fruit production in the course of a business are also exempt from TPO restrictions when the work is carried out in the interests of that business, but a single apple tree in your back garden does not count.

Breaching a tree preservation order is a criminal offence. If you cut down or destroy a protected tree without consent, the maximum fine in the Magistrates' Court is £20,000, and in the Crown Court the fine is unlimited. The courts can also require you to plant a replacement tree of an appropriate size and species, and if you fail to do that there are further penalties. Claiming you did not know the tree was protected is not a defence if the information was available on the public register or should have been identified through reasonable enquiry.

Even if you damage a protected tree rather than destroying it, through topping, lopping, or root damage during construction work, you can still be prosecuted. This is particularly relevant during building projects where excavation near a protected tree can damage the root system below ground even though the tree above ground looks untouched. Your builder needs to know about any TPOs before work starts and tree protection measures need to be in place during construction. The British Standard BS 5837 sets out the requirements for trees in relation to design, demolition and construction, including root protection areas and construction exclusion zones, and any competent builder working near a protected tree should be following it.

If there is a protected tree on your site, the most important thing is to find out early. Before design drawings are started, before a planning application is submitted, and certainly before any work begins on site. We can check the TPO register as part of our initial assessment of your property, and if there is a protected tree we design around it from the start rather than producing a set of drawings that then have to be thrown out because they assumed the tree was coming down.

In many cases the tree and the building project can coexist perfectly well. It is a matter of positioning the extension on the right side, adjusting the footprint, or choosing a foundation design that avoids the root protection area. Sometimes a protected tree actually improves the project because a mature tree in the garden adds value to the property and character to the setting that no amount of landscaping can replicate. We have worked on projects in Belper, Ripley and across Amber Valley where the TPO initially looked like a problem and ended up being something the client was glad they kept.

While we are on the subject, hedgerows have their own separate protection under the Hedgerows Regulations 1997, which is a different piece of legislation from TPOs. If there is a hedgerow on or bordering your site that is at least 30 years old, or that runs along a public right of way, or that meets various ecological and historical criteria, you need to apply to the council before removing it. The penalties are different and the process is different, but the principle is the same. Check first, act second.

Hedgerow removal comes up on rural plots and on the edges of villages particularly. If you are building on a plot in a place like Belper, Ripley or any of the smaller villages across Amber Valley where the boundary between residential land and farmland is a hedge rather than a fence, it is worth finding out what you are dealing with before the digger turns up.

If you are planning a project and you are not sure whether a tree preservation order or a hedgerow restriction is going to be an issue, give us a call on 07773 899 597 or email abds@abds.biz and we can check for you before you spend a penny on anything else.