At the outset it’s necessary to make the distinction between civil and criminal law. Criminal law law is made up of offences which negatively affect everyone, prosecution of which is done by the state (usually by the CPS) and for which a punishment is imposed by the courts if found to have been committed.
Civil law is different. Usually it concerns disputes between individual parties concerning the rights of one party versus another. The civil courts determines the dispute between the parties and can give remedies such as compensation. Criminal sanction (such as imprisonment) is not normally a feature of the civil law.
An injunction is an order of the civil courts that requires a party either to refrain from doing a specific act (a prohibitory injunction), or to do a specific act bracket (a mandatory injunction).
Injunctions can vary in the period of time for which they are to remain in force a final injunction is a final judgement and for that reason is only usually granted after trial on the merits.
Injunctions can vary in the period of time for which they are to remain in force. A final injunction is a final judgement, and for that reason is only usually granted after trial on the merits. An interim injunction is a provisional measure taken at an early stage in the proceedings before the court has had an opportunity to hear and fully weigh the evidence on both sides.
And injunction can be granted even though the claimants legal rights have not yet been infringed. In such a case the injunction is described as a quia timet injunction, nothing Latin for “because he fears”.
Crucially, although injunctions are a civil remedy, if breach of injunction is found, it can constitute contempt of court for which imprisonment of up to two years can be imposed. It is this blurring of the it is this blurring of the boundary between civil and criminal law that makes injunctions potentially open to abuse and infringing upon civil liberties.
The first thing to note at the outset is that the law relating to tree protection in the UK is manifestly inadequate and many trees (including those of national and international importance) have no legal protection. If you agree that this is unacceptable, then you might wish to look at our campaign page outlining the case for proper protection and get involved to make it happen.
Tree Preservation Orders
The primary means of tree protection are Tree Protection Orders (TPO’s). You can check whether a tree you care about has a TPO by consulting the list held by the relevant Local Planning Authority (“LPA”) for the area the tree is in. Some LPA’s have their lists of protected trees online, for others you may have to go into the council offices to consult a paper list.
If a tree you care about does not have a TPO, you can apply to have one put on. To do so you will need to write to the Tree Officer of the relevant local authority.
A local planning authority may make a TPO under section 198 of the Town and Country Planning Act 1990.
This is where it appears to the authority that it is expedient the “interests of amenity” to make provision for the preservation of trees or woodlands in its area.
There are seven key factors to be taken into account in deciding whether to make the tree preservation order:
- Size of the tree
- Useful life expectancy
- Importance of position in the landscape
- Presence of other trees
- Relationship to the setting
- Other special factors
In order to have the best chance of a TPO being made, you should identify why the tree is special in the context of the relevant factors.
It is a criminal offence to cut down or damage a tree that is subject to a TPO.
The Hedgerow Regulations 1997 (enacted under section 97 of the Environment Act 1995) protect “important” countryside hedges from removal. The “importance” or otherwise of a hedgerow is determined by wildlife, historical and landscape criteria detailed at length in the regulations.
It is a criminal offence to remove an important hedgerow without permission from the LPA. The process by which such permission can be given is dealt with extensively in the Regulations.
The Wildlife & Countryside Act 1981 gives legal protection to nesting birds. It is a criminal offence under that act to intentionally damage or destroy an active nest. Therefore, this law may be used to prevent felling during the breeding and nesting season, whilst other legal and campaigning avenues are explored to secure the long-term future of the tree(s).
The rules on tree felling in woods and forests are set out in the Forestry Act 1967.
In short, you need a forestry license to fell more than 5 cubic metres of trees, or sell more than 2 cubic metres of trees, in any calendar quarter.
Exceptions to this (where there are no volume limits). Include felling:
- Trees of less than 8cm diameter.
- Trees of less than 10cm diameter (if for the purposes of thinning).
- Coppice poles of less than 15cm diameter.
- Any tree that is dangerous or causing a nuisance.
Direct action and trees
The failure of the law to properly protect trees means that, in many cases, the only way to protect a tree that is threatened may be through non-violent direct action (“NVDA”). There are many different forms of NVDA:
Protests and demonstrations to draw attention to the destruction or damaging of trees.
Standing under trees to prevent felling.
Occupation of trees (eg tree houses) to prevent felling.
The use of NVDA tactics has been critical in saving hundreds of trees in different campaigns throughout the country. The most well known use of the tactic was in Sheffield, but it was also successfully used to save a tree in Tonbridge.
There are a number of potential legal issues that could be encountered through the use of NVDA:
- The Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA 1992”). You can find a legal opinion on this, written in relation to the Sheffield dispute, in our factsheets section.
- Aggravated trespass under section 68 of the Criminal Justice & Public Order Act 1994.
- Injunctions and contempt of court. For more information on the law of injunctions, see our factsheet, or our injunctions campaign.
- Obstruction of the highway, under section 137 of the Highways Act 1980
- Section 303 Highways Act 1980: the offence of obstructing works under the Highways Act.
- Public Order Act 1985 offences.