Felling "Unprotected" Trees? You may still need a licence.

I recently represented clients in an appeal against a Restocking Notice issued by the Forestry Commission.

The Forestry Commission had served the notice because my clients felled trees without first obtaining a felling licence. The notice required my clients to restock the area in which trees had been felled and set out requirements relating to the number and spacing of stems to be planted, the required species mix and future maintenance.

Before felling started, my clients had checked that the trees weren’t protected by a Tree Preservation Order (TPO). Unfortunately, they weren’t aware that – even in the absence of a TPO - a felling licence is usually required to fell more than 5 cubic metres of timber (or less, if the timber is to be sold).

At the end of the appeal hearing, everyone – including the Appeal Committee – agreed that, while many people know about TPOs, very few know about felling licences.

So, if you are planning to cut down any trees, beware: a licence is required for the felling of growing trees unless a statutory exemption applies. It is a criminal offence to fell trees without a licence where one is required. The Forestry Commission may pursue a prosecution and/or may issue a Restocking Notice.

Failure to comply with a Restocking Notice, after reasonable notice and without reasonable excuse, is also a criminal offence.

There are a number of statutory exemptions from the requirement to obtain a felling licence but these are not always as straightforward as they may seem.

For example, a licence is not required for “the felling of fruit trees or for trees standing or growing on land comprised in an orchard, garden, churchyard or public open space”. How, though, do you define a garden? That “wild patch” beyond the manicured lawn – is that part of the garden? Or the area that was once maintained but isn’t any longer? Depending on the circumstances, we may have to look beyond character and appearance to wider considerations such as how the land has been used in the past and how it is intended to be used in the future. The question of what is a garden - and whether land ceases to be a garden if it has become overgrown and inaccessible - occupied a significant proportion of my clients’ appeal hearing.

Another exemption that has its complications – albeit not at play in my clients’ case - is felling that is “immediately required for the purpose of carrying out development authorised by planning permission …”. This is often interpreted as “planning trumps licencing”. That, though, oversimplifies the legislation and overlooks two important words: “immediately required”. If it is feasible to implement the relevant planning permission without felling the trees in question, then felling may not have been “required” in order to carry out the authorised development. Even if felling was required, was it required “immediately”, or could it have waited? For example, were there reserved matters yet to be determined or pre-commencement conditions still to be discharged?

In other cases, we may be reasonably confident that an exemption applies but recommend commissioning a report from a reputable arboriculturalist before proceeding – typically, as proper evidence before relying on the exemption for felling “for the prevention of danger or the prevention or abatement of a nuisance”.

I don’t know the outcome of my clients’ appeal yet but I do know that, had they been aware of the rules about felling licences, they would have sought advice about applicable exemptions in advance, engaged with the Forestry Commission if necessary and hopefully avoided these proceedings.

If you are planning on felling trees, don’t get caught out. Seek professional advice about whether a felling licence is required or whether an exemption applies. The answer may not be what you expect.