Article prepared by John Lockhart, Chairman and Andy Poynter, Principal Arboricultural Consultant
This is one of those areas fraught with confusion and misunderstanding with people uncertain as to their duty, role and responsibilities. As a team of Foresters and Arboriculturists we frequently advise on the complexities of forestry and planning legislation.
It was therefore excellent to see the publication Forestry Commission (FC) Operations Note 052 released this week, which aims to set out clearly and concisely the interaction of felling applications and licences issued under the Forestry Act 1967 and Tree Preservation Orders (TPO’s) made under the Town and Country Planning Act 1990.
One of the key messages that comes through is the overarching authority of the felling licence process:
Where no exception to the requirement for a felling licence applies, a felling licence is always required to fell trees, under the Forestry Act 1967 (FA). This includes those trees subject to a TPO.
The only times when this does not apply and the Local Authority is able to authorise felling of TPO trees are:
- when a felling licence is not required through exemption; or
- when the FC refers a felling licence application to the Local Authority for them to process, as set out in section 15(1)(b) of the Forestry Act (although this very rarely happens).
The exemptions setting out when a felling licence will not be required are set out in the FC publication Tree Felling; Getting Permission.
If an application is made to the Local Planning Authority for felling trees that are subject of a TPO then it should not be accepted or validated when a felling licence is required. It should be returned to the applicant advising them to submit a felling licence application to the FC.
Where an existing felling licence is already in place
Complications can arise either when a TPO is made on trees where an existing valid felling licence consent exists, either through a standalone felling licence or a consent encompassed within a wider management plan.
The existence of an approved felling licence does not remove the need for the TPO to be considered. However, the existence of the felling licence may be material in that the felling will already have been consulted and deemed to be in line with the UK Forestry Standard, therefore assuming the TPO was present, no further application is required.
There are limited exceptions, however, it is recommended that the licence holder should contact the FC immediately and it is likely that a new felling licence will be required to ensure no offence is committed.
- Assume that a felling licence will be required unless work falls within one of the defined exemptions.
- Where trees requiring a licence are covered by a TPO the application is still made to the FC. An erroneous TPO consent does not override the requirement for a felling licence.
- A valid felling licence will not override TPO if the TPO was created after the felling licence was granted.