Tree preservation orders

Are local authorities effective in protecting England’s valued trees?

Iain Osenton

Figure 1. The research area for the LPA questionnaire and FOI request was central England, between the black lines. Local authority boundaries are highlighted in red. (Base image source: Department of Levelling up, Housing and Communities, 2016).

Tree preservation orders (TPOs) are a recognised mechanism of assigning legal protection to trees of notable amenity value. Reviews of tree protection systems internationally have highlighted weaknesses undermining the level of protection they afford. However, until this study, a review of the system in England was lacking.

This research carried out a quantitative assessment of England’s TPO system through statistical analysis of opinions gathered from 70 industry professionals across the public and private sectors, and data gained through a freedom of information (FOI) request from 58 local planning authorities (LPAs) in relation to enforcement of contraventions.

Research aims and methods

Previous research completed by Clark et al. (2020) in six metropolitan districts of Melbourne, Australia, utilised direct interviews with 23 local government professionals to consider the efficacy of relevant TPO laws. The study suggested local government professionals felt tree protection laws were undermined by exceptions, lack of enforcement and inadequate penalties which did not offer a deterrent. To consider the efficacy of the English TPO system, a broader approach was required in order to capture industry opinion from both the public and private sector, across a range of urban, rural and urban-rural fringe locations.

Questionnaire

This study gathered data through distribution of an online questionnaire consisting of 17 five-point Likert scale¹ closed questions with three open- answer questions. The questionnaire was distributed to 100 local authority arboricultural officers across central England (Fig. 1). In addition, the Arboricultural Association advertised the study in an e-Blast news bulletin to capture opinion from private sector arboriculturists.

70 people responded to the questionnaire; all passed pre-requisite questions confirming their familiarity with the relevant legislation and regulations.

Freedom of information request

Research by Clark et al. (2020) proposed that enforcement of contraventions was a weak link in Australian tree protection laws. To consider enforcement within this research, a freedom of information request was issued to the same 100 LPAs that were invited to participate in the questionnaire. The FOI requested data on the number of contraventions reported to the authority between 1st January 2020 and 1st January 2023, along with how these contraventions were handled.

A key point here is that the FOI request asked for data on contraventions of TPOs, trees in Conservation Areas and protected hedgerows. These criteria were specified for two reasons. Firstly, it is common for local authorities to categorise contraventions to legislation governing trees or hedges under a ‘tree’ category within their individual planning databases. To request data in relation only to protected trees might have resulted in many authorities refusing to complete the FOI due to the time it would have taken to filter through the range of ‘tree’ contraventions they received. Secondly, a key point of this component of the research is to consider how well local authorities can utilise their powers under legislation to prosecute contraveners. Therefore, it was not considered necessary to further filter the category of offence.

58 FOI responses were received. These responses revealed inconsistencies in how local authorities handle both contravention data and FOI requests. Some rejected the FOI request on the grounds that compiling a response would have taken them more than 18 hours; some said they did not store the requested data; and others failed to meet the FOI deadline.

Results

Of the 70 responses to the questionnaire:

• 68.6% were from local authority arboricultural officers, 28.6% from arboricultural consultants, and 2.8% from tree surgeons.
• 68% of respondents had been involved in the industry for over 21 years, 22.8% for between 12 and 20 years, 8.6% for between 6 and 11 years, and 4.3% for up to 5 years.
• 61.4% considered their geographical region as rural-urban fringe, 24.3% rural, agricultural or heavily forested, and 14.3% as urban, city or boroughs.

Legislation, TPO creation and management

Through a series of questions, respondents to the questionnaire rated from one (low) to five (high) their opinion on the governing legislation and regulations. On average, the level of protection afforded received the highest rating, followed by how up to date the legislation is; the lowest ratings were received for enforceability (Fig. 2). All ratings fell below the neutral score of three, suggesting on average poor to modest ratings for legislation and regulations. There was no statistically significant variance in opinion based on respondents’ roles, experience or geographical region.

When asked to consider LPA performance in the creation of TPOs, management of tree work applications, and management of TPO documentation, respondents returned mean ratings lower than comparable ratings for how well legislation allows for these processes, rating these areas at an average of 2.36 on a five-point scale. This is the only area of the study which saw variance in opinion between public and private sector professionals.

When considering TPO creation, arboricultural officers offered a higher mean rating than private sector respondents (H=12.87, DF=2, p<0.05³). However, the range of results from arboricultural officers was much broader, showing greater interquartile and outlier ranges, and therefore greater variance in opinion either side of the average rating. The same variance between public and private sector respondents was observed when they were asked to rate how well LPAs manage TPO work applications (H13.04, DF=2, p<0.05) (Fig. 3).

The lowest-rated LPA function in the creation and management of TPOs was the management of TPO documentation, which received a mean rating of 1.55 on a five-point scale. This rating showed no statistically significant variance between respondents and had a smaller data range than other ratings of LPA performance, suggesting greater unity between respondents’ opinions.

Figure 2. Mean respondent ratings (out of 5) for three areas of legislation and regulations. Bars show +/- one SE of the mean.²

Figure 3. Respondents’ mean ratings for LPA proficiency in creating TPOs analysed by position within the industry. The whiskers indicate the full range of the responses.

Figure 4. Respondents mean ratings (out of 5) for potential weaknesses in the investigation and enforcement process associated with each statement. Bars show +/- one standard error of the mean.

Figure 5. LPA management of registered contraventions over a three-year period.

Figure 6. Respondents’ mean ratings for the benefit which may result from a given statement. Bars show +/- one standard error of the mean.

Professional opinion of LPA enforcement

Questionnaire respondents’ ratings of LPA performance in the investigation and enforcement of contraventions returned a lower mean score (1.91) than mean ratings of how sufficient the penalties set by legislation are (2.06) and how well legislation allows for the investigation and enforcement of contraventions.

No statistically significant variance in opinion was observed between the respondents based on their industry role, experience or geographical area.

In order to consider if, and where, weakness exists in the enforcement process, respondents were also asked to provide a rating of one (low) to five (high) in three key areas (Fig. 4). Ineffective investigation by LPAs returned the highest mean risk rating, with insufficient penalties set by legislation rated the lowest. No statistically significant variance in opinions was noted between the respondents based on their industry role, experience or geographical location.

FOI request analysis

From the 58 FOI returns (of the 100 possible):

• 1,987 contraventions were reported, an average of 33.37 per authority.
• Of these, 49.7% were determined within 6 months of a case being registered.
• Of the cases determined within 6 months, 9.58% resulted in the LPA serving a tree replacement notice and 1.46% in the LPA pursuing the contravener to court (Fig. 5).

How to improve protection

In order to consider means of improving the current system the questionnaire suggested improvements, which were ranked by respondents (Fig. 6). The suggestion which gained the highest mean rating was to increase LPA resources, which was unanimously considered poor on a five-point scale (1.68). This is consistent with the replies to open-answer questions, in which 52.3% of respondents referenced better LPA resources as a means of improvement. This was ranked higher than changes to legislation, which were only referenced by 44.1% of responses.

Conclusions and opportunities for further research

Legislation

The results suggest that the foundation of tree preservation, the governing legislation and the regulations are unsatisfactory in the eyes of industry professionals.

Exceptions set out in legislation were considered to present risks, particularly regarding permitted development, which this study proposes to be the greatest threat facing protected trees. When the Town and Country Planning (Tree Preservation) (England) Regulations 2012 were released, England was building 125,000 homes annually. This figure increased to 243,000 homes annually as of 2019 (Barton et al., 2023), highlighting an increase in pressure from residential development, and justification for a review of legislation in the light of evolving threats.

In contrast to Clark et al. (2020), the responses to this study did not support an increase in penalties for contraventions. However, they highlighted the route to securing a penalty as potentially prohibitive, with the enforcement potential of legislation receiving low ratings from respondents. When considering a penalty, a court must take into account whether a party has financially benefited from the contravention. However, this fails to factor in any monetary value associated with the loss of either amenity or environmental services as a result of the contravention.

LPA performance

Respondents gave lower ratings to LPA performance than to other comparable areas covered in the questionnaire (e.g. how fit for purpose the legislation is), with ineffective investigation of contraventions considered the greatest weakness in the current enforcement system. This was supported by the returns from the FOI request, which revealed over half of all registered contraventions lapsed without determination. Of those investigated, only 1.46% of cases were pursued to court.

This is a complex area. LPA resource has been declining for over a decade, creating reliance on agency staff and a shortage of public sector arboriculturists (Hastings et al., 2015; Agyemang, 2023; Baines, 2021). The ramifications for protected trees are significant. Insufficient resources to create and manage TPOs limit an LPA’s proficiency in these functions, as supported by Currell (2004) and the findings of this study. However, a key point in the management of TPOs is how documentation is maintained – it has the potential to make a TPO unenforceable and was considered a poorly executed function by respondents in this study.

Securing a prosecution is a potentially prohibitive process for an LPA, particularly if it lacks sufficient legal support or budget to pursue a case to court. Whilst it is reasonable to suggest some contraventions recorded in this study’s FOI request did not warrant pursual to court, over half lapsed during the LPA’s designated investigation period, preventing further investigation or action (Department for Levelling Up, Housing and Communities, 2014).

A key takeaway is the recognition among respondents of the shortfalls within LPA resources: improvements to resourcing were assigned the highest value when respondents were asked to rate a list of the ways in which the current system might be improved.

Throughout this study, in most reviewed areas there was a lack of statistically significant variance in opinion between respondents based on their position in the public or private sector, their industry experience, or their geographical range. This suggests the issues identified are recognised across the industry, with arboricultural officers just as critical of both legislation and LPA practices as private sector respondents.

More research

This study quantitatively demonstrates that the mechanisms for protecting trees in England are falling short of expectations in the eyes of industry professionals. Consequently, it is reasonable to suggest irreplaceable, high amenity value trees within England are at risk of loss.

The first stage in improving the TPO system is to recognise where issues are present. Further detailed research into each individual stage of the process, from creation to enforcement of contraventions, is essential to gather further evidence for reform. Additionally, exploring the expectations of industry professionals may help guide reform towards a more contemporary and satisfactory system, for the benefit of England’s high amenity value trees.

References

Agyemang. G. (2023). Addressing the great local government recruitment crisis. Local Gov Jobs. https://jobs.localgov.co.uk/article/addressing-local-government-recruitment-crisis (accessed 30th January 2024). Baines. M. (2021). Local government: Skills shortages and workforce capacity. APSE briefing 21–56. https://bit.ly/4hLJSNz (accessed 30th January 2024).Barton, C., Wilson, W., Rankl, F., & Panjwani, A. (2023). Tackling the under-supply of housing in England. UK Parliament. https://bitly/4hNBAoq (accessed 25th March 2024).

Clark, C., Ordóñez, C., & Livesley, S. (2020). Private tree removal, public loss: Valuing and enforcing existing tree protection mechanisms is the key to retaining urban trees on private land. Landscape and Urban Planning 203. https://doi.org/10.1016/j.landurbplan.2020.103899 (accessed 30th January 2024).

Currell, A. (2004). Reviewing tree preservation orders: Implications for local planning authorities. Arboricultural Journal 28, 21–43. https://doi.org/10.1080/03071375.2004.9747400

Department for Levelling Up, Housing and Communities (2014). Tree Preservation Orders and trees in conservation areas. https://www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas (accessed 17th January 2024).

Department for Levelling Up, Housing and Communities (2016). Local government structure and elections. https://www.gov.uk/guidance/local-government-structure-and-elections (accessed 11th November 2023).

Hastings, A., Bailey, N., Bramley, G., & Gannon, M. (2015). The cost of the cuts: The impact on local government and poorer communities. Joseph Rowntree Foundation. Accessed via: https://bit.ly/4iFZymK (accessed 30th January 2024).

Iain Osenton is the arboricultural team leader at a district council. This article is based on his final-year dissertation for a BSc (Hons) in Arboriculture and Urban Forestry, achieved through Myerscough College.

Footnotes

1. The five-point Likert scale is a rating system that allows respondents to express a range of opinions with five response options – from strong agreement to strong disagreement, including a neutral option.

2. SE = Standard error, a statistic which quantifies the variability of a sample. It allows assessment of how well a sample represents the population, and thus the reliability of the measurement. A larger standard error shows a larger range of results either side of the average.

3. (H=12.87, DF=2, p<0.05). This represents statistical analysis through a Kruskal-Wallis test, used to determine if there is a significant difference between the medians of two or more independent groups or measurements. The P value of <0.05 indicates the difference between observed groups is statistically significant.

This article was taken from Issue 209 Summer 2025 of the ARB Magazine, which is available to view free to members by simply logging in to the website and viewing your profile area.