31.05.2022

Tree felling is commonplace when constructing a residential development or indeed when carrying out site investigations.  Prudent developers should be aware of not only whether there are any protected trees within their proposed development (i.e. by way of Tree Preservation Order) but also the statutory rules around tree felling activity in general including when a tree felling licence is required, when one isn’t and the potential sanctions for breaching the regulations.

This article will explore the legal requirements and process involved in tree felling in England, the legislation and some of the common issues / pitfalls.

What is a felling licence and why do I need one?
Tree felling is a legally controlled activity. Permission is normally required from the Forestry Commission to fell growing trees and the Forestry Commission will usually provide this by issuing a felling licence. The licence allows the applicant to fell identified trees and woodland legally.

The requirement for a felling licence stems from the presumption against permanent loss of woodland cover, in particular ancient woodland. Some felling licences will therefore contain “restocking conditions” that require felled trees or areas of woodland to be replaced by replanting.

It is important to note that once a felling licence has been issued it cannot be withdrawn. Furthermore, once tree felling has started a felling licence cannot be amended.  This can lead to very tricky (and sometimes absurd) legal outcomes which we will discuss in more detail further on.

It is the responsibility of the person felling trees to ensure that a felling licence or other permission has been issued before any felling is carried out, or that one of the exceptions specified in the Forestry Act 1967 apply.

You should never begin to fell trees until the Forestry Commission have issued a felling licence to you and you have all other necessary permissions to fell trees in place.  Unless one of the exemptions applies, any felling carried out without a felling licence is a criminal offence which can lead to prosecution and an unlimited fine.

How do I apply for a Felling licence?
Anyone can apply to the Forestry Commission for a tree felling licence, but generally speaking it must be issued in the name of the owner or lessee of the property.  Where an owner or lessee uses an agent, the agent must demonstrate that they are authorised to represent the applicant.

Is a felling licence always required?
No – not all tree felling activity requires a Felling licence.

Some examples of the exemptions contained within the Forestry Act 1967 (and other legislation) which do not require a felling licence are: –

• In any calendar quarter you can fell up to 5 cubic metres of growing trees on your property provided that no more than 2 cubic metres are sold.
• Tree surgery by way of lopping or topping (including pollarding) to maintain good health and extend lifespan is permitted, as is felling of trees to prevent the spread of pests or disease.
• Felling trees under 1.3 metres in height with a diameter of 8 cm or less.
• Removal of dangerous and nuisance trees.
• Development – the felling of trees immediately required for the purpose of carrying out development authorised by the grant of full planning permission. To be exempt from the requirement for a felling licence at least one of the following conditions must be met:
  • trees must be explicitly identified in the planning consent as being permitted for removal;
  • the trees must stand within the footprint of the proposed development; or
  • the removal of the trees must be necessary in order to carry out the proposed development (for example where tree removal is required to access the proposed development).

Therefore, it is important to note that the grant of full planning permission in itself does not authorise carte blanche tree removal.  It should also be noted that outline planning permission is not sufficient to demonstrate that tree felling is immediately required.

What if I acquire land which is already subject to a felling licence?
The permission to fell trees remains during the period of the felling licence.  A change in ownership of the land does not change this.  Therefore if you acquire land with the benefit of a felling licence, and you wish to remove trees pursuant to the licence you should contact the Forestry Commission first to ensure that their records are updated accordingly.

If a licence includes a restocking condition, and that condition has been triggered (i.e. by tree felling) then the restocking condition will also bind successors in title to the land.  Failure to comply with restocking conditions can lead to enforcement action by the Forestry Commission issuing an Enforcement Notice to compel compliance with the restocking conditions.

In addition to the usual CPSE a prudent solicitor should also consider raising bespoke enquires around tree felling and felling licences when acquiring certain sites.

Pitfalls and problems
Difficulties can arise if a restocking condition has been triggered where a developer is seeking planning permission for development.  Whilst the grant of full planning permission generally leads to an exemption from the need for a felling licence, a quirk of the legislation is that the grant of planning permission after the triggering of a restocking condition does not override the need to restock.  In such circumstances a developer would need to try and accommodate the restocking in their layout or seek to agree restocking in another location (although it should be said there is no obligation on the Forestry Commission to agree to off site restocking).

Further difficulties can arise when trees are felled without a licence and a Restocking Notice is served on the landowner.  Again, in this scenario the grant of planning permission does not eliminate the need to comply with the Restocking Notice.

Both scenarios above could leave a developer unable to implement a lawful planning permission if restocking cannot be accommodated within the open space or other communal areas of the estate.

How Walker Solicitors can help
We have lawyers with first-hand experience of dealing with the Forestry Commission in respect of the various issues above, so do please get in touch if assistance is needed.

 

About the Author, Matthew Roach.Matthew joined Walker Solicitors in February 2022 as an Associate Director having spent the last 3 years in-house with large national PLC house builder. Having found the law later in life, Matthew attained a qualifying law degree (LL.B) from the Open University then subsequently went on to qualify as a Chartered Legal Executive.

T:   01922 639 080
@:  mr@walkersolicitors.com