How to stay legal when felling trees – new rules apply
© Parilov/Adobe Stock The government recently introduced unlimited fines to deter illegal tree felling in England.
It follows concern over possible rising levels of illegal felling, particularly ahead of development proposals being submitted.
Here is a summary of the rules farmers should be aware of in relation to felling trees on their property.
See also: Business Clinic: Protecting the public from tree felling work
What is legally allowed?
Felling is legally controlled and generally requires a licence to be issued before work starts.
There is an exemption allowing landowners to fell up to 5cu m of growing trees in any calendar quarter on a property without a licence, as long as no more than 2cu m of this is sold.
Calendar quarters begin on 1 January, 1 April, 1 July and 1 October and the Forestry Commission (FC) has produced tables to help work out timber volumes.
For example, a tree 10m in height with a diameter of 30cm around the midpoint of the trunk is estimated to equate to just over 0.7cu m.
Other exemptions apply, including allowing for lopping and topping, and for small trees of less than 8cm in diameter – measured at 1.3m from the ground – to be removed.
Nuisance or dangerous trees can also be felled without a licence, as can fruit trees.
What record-keeping is required?
If relying on one of the exemptions, it is the landowner’s responsibility to prove that it applies.
The FC suggests farmers keep photographic records showing the tree setting and condition before and after felling and make reference to scale.
Other forms of evidence include maps, site surveys or reports, inspection checklists, and, importantly, a record confirming when felling took place.
Anyone felling 5cu m of timber in successive calendar quarters is “strongly encouraged”, to retain evidence of what took place and when, to demonstrate that less than 5cu m was felled in each quarter.
A separate offence under the Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1998 may be committed if an area of woodland is systematically cleared over time without permission from the FC.
Penalties and enforcement
Felling without a licence now carries the risk of an unlimited fine.
Previously, the fine was £2,500 or twice the value of the trees felled.
This was low enough for some landowners to fell trees without a licence, with the idea they would just pay the fine if caught and penalised.
Failure to comply with an FC enforcement notice and court-ordered restocking order could also lead to imprisonment.
An enforcement notice may be issued after an investigation by the FC into illegal felling.
A restocking notice requires replacement trees to be planted or regenerated and maintained to an acceptable standard for up to 10 years in order to reinstate woodland cover.
The FC views any harm caused by the illegal felling of trees as a top priority, so it will insist that trees are replanted wherever possible and will pursue a prosecution in cases that merit it.
Felling licence process
Landowners needing a felling licence should use the Felling Licence Online service.
A site visit will be required and licences will generally be issued or refused within three months of the application being made.
Licences will normally include restocking requirements unless they are requested for thinning a woodland.
Potential pitfalls
Separate consents and permissions may be required in addition to a felling licence, to comply with the protection of habitats and wildlife under the Conservation of Habitats and Species Regulations 2017 and the Wildlife and Countryside Act 1981.
For example, where European Protected Species (EPS) are in evidence, a licence may be required from Natural England.
Landowners should also check whether the tree is subject to a Tree Preservation Order, which means it must not be touched without the local authority’s written consent.
Under current cross-compliance rules, cutting and trimming trees between March and August is in breach of GAEC 7c (Trees) rules and so could lead to a penalty.
Land charge register
If land ownership where an enforcement notice is in place changes, the new owner inherits the responsibilities of that notice.
Restocking and enforcement notices have also been reclassified as local land charges, so will appear on the local land charge register.
This means any breaches should be noticed during the conveyancing process and could deter prospective buyers.
Devolved differences
The arrangements can differ slightly between each of the devolved regions.
For example, in Scotland under the Forestry and Land Management (Scotland) Act 2018, the felling of each tree is considered to be a separate offence with a maximum penalty of up to £5,000 for each offence.
The relevant bodies dealing with licence applications and enforcement in the rest of the UK are Scottish Forestry, Natural Resources Wales and Forest Services.