202403476 A2 - [2025] EWCA Crim 1384

It is helpful to consider this appeal, and more generally sentencing for offences under s.210 of the 1990 Act, in the context of the statutory framework for dealing with trees protected by TPOs. Section 198 of the 1990 Act empowers a local planning authority to make an order for the preservation of trees or woodlands specified in the order if it appears to them to be expedient in the interests of amenity to do so.

The Town and Country Planning (Tree Preservation) (England) Regulations 2012 (SI 2012 No 605) contain detailed provisions for making and notifying landowners about a TPO. Regulation 3 and the Schedule to the Regulations prescribe the content of a TPO. It must specify the trees, group of trees or woodlands to which it relates and must indicate the position of those trees on a map annexed to the order.

When an order is made, it must be served on the owners of the land to which the order applies. They then have an opportunity to make objections. If after considering any objections the order is confirmed, the local planning authority must notify landowners of that fact, serve on them a further copy of the order if it has been modified, and in any event make the order available for inspection at the authority’s offices (regs. 5 to 8). The authority also has to keep, and make publicly available, a register of all applications for consent and the decisions taken (reg.12). The authority must additionally register a TPO as a local land charge (s.1(1)(b) of the Local Land Charges Act 1975) in the part of the Register dealing with “planning charges”. Thus, the statutory scheme provides for landowners to become aware of a TPO, either when the order is first made or when an intending purchaser of a property obtains the results of the usual local authority searches before exchange of contracts.

The 2012 Regulations also lay down the controls for the protection of trees covered by an order. No person may cut down, top, lop, uproot, or wilfully damage or destroy such a tree, or cause or permit any such activity, except with the written consent of the local planning authority (reg.13). Consent must be obtained beforehand. Regulation 14 contains a number of exceptions to that prohibition, one of which relates to work which is necessary to enable a person to implement a full or detailed (not an outline) planning permission.

A TPO is required to set out the same prohibition and exception (Art.3 of the Schedule to the Regulations).

Thus, landowners should be aware of any TPO affecting their land and are able to find out which trees are protected by the order and the controls applicable to those trees. If a landowner is uncertain about the effect of an order he can contact the local planning authority and if necessary obtain professional advice.

By s 206(1) if a tree is removed or destroyed in breach of an order, it is the duty of the owner of the land to plant another tree of appropriate size and species at the same place as soon as he can reasonably can. Section 206(3) deals with an owner’s obligation to replant trees unlawfully removed from woodland. If it appears to the local planning authority that s 206 has not been complied with, it may serve on the owner of the land a tree replacement notice under s. 207, that is a notice requiring him to plant a tree or trees of such size and species as may be specified. In default, the local planning authority may under s.209 enter the land and carry out the works required by the notice at the expense of the then owner of the land. Thus, the system of control and enforcement under the 1990 Act clearly imposes primary obligations on the owner of the land the subject of a TPO. He must not, without the prior written consent of the local planning authority, cut down a protected tree, or cause or permit that to happen. If such a tree is cut down, then he must replace it.

Section 210 creates an offence for non-compliance with a TPO. Subsection (1) provides:

“If any person, in contravention of tree preservation regulations—

(a)

cuts down, uproots or wilfully destroys a tree, or

(b)

wilfully damages, tops or lops a tree in such a manner as to be likely to destroy it,

(c)

causes or permits the carrying out of any of the activities in paragraph (a) or (b),

he shall be guilty of an offence.”

It is well-established that this is an offence of strict liability. Under s.210(1)(c) the prosecution has to prove that the trees in question were the subject of a TPO, that works prohibited by reg.13 have been carried out (e.g. the felling of a tree), that those works were caused or permitted by the defendant and that the planning authority had not given consent for those works (R v Alath Construction Limited [1990] 1 WLR 1255). It is not necessary for the prosecution to show that the defendant knew of the TPO: see Maidstone Borough Council v Mortimer [1980] 3 All ER 552 where the Divisional Court stated at p554:

“….. Parliament intended that no tree the subject of a tree preservation order should be cut down or wilfully destroyed …. without the consent of the local authority. Plainly, it is of the utmost public importance that such trees should be preserved. The risk to their continued existence in these days of extensive building operations, which encroach further and further into rural areas, is very great. It is not a difficult task for any member of the public wishing to interfere with the shape, size or continued existence of a tree to obtain from the local authority reliable information on the question whether the tree is the subject of a preservation order and, if so, to seek the authority's consent to the operation proposed. (Mrs. Twydell appears to have made a most perfunctory inquiry of the wrong department of the local authority and to have misunderstood or misinterpreted whatever it was she claims to have been told.) Thus, there can be no hardship to a member of the public in having on or near land that he owns or occupies any protected tree.”

The offence under s.210 is triable either way. The Crown Court may impose an unlimited fine, but a custodial sentence is not available.