Guidance

Advice to local authorities: evidencing exceptions to the need for a felling licence: operations note 61

Published 11 February 2022

Applies to England

• Publication for Northern Ireland
• Publication for Scotland
• Publication for Wales

1. Purpose

This Operations Note sets out how Local Authorities (LAs) can best evidence the need for tree felling without a felling licence, and defend against allegations of alleged illegal tree felling.

2. Context

The felling of growing trees in England is controlled by the Forestry Act 1967 (the Act). The Forestry Commission (FC) is the government regulator that implements and enforces the provisions of the Act. The Act states that a felling licence is required to fell any growing tree(s) in England unless an exception applies.

There are several exceptions to the need for a licence, broadly based on the type and species, location and size of the tree, the scale, nature and scope of the felling activity, and person responsible for the felling.

These exceptions are primarily set out in section 9 of the Act as well as the Forestry (Exceptions from Restriction of Felling) Regulations 1979. You can find an accessible summary of these exemptions in the FC booklet ‘Tree felling: getting permission’. LAs are expected to be familiar with all of these exemptions, however their attention is specifically drawn to one exemption in particular. See section 3.

Felling trees without the authority of a felling licence where one was required (i.e. no exception applies), is an offence under section 17 of the Act.

Should a landowner / tree feller wish to fell trees utilising one or more of the exceptions set out in the Act, it is established through case law that the burden of proof lies with the landowner / tree feller to evidence that the exception applied. The FC need only demonstrate that the felling was of sufficient volume to have required a felling licence, and that no felling licence was in place. This is known as a reserve burden of proof.

When the FC is informed of unlicenced tree felling, an assessment of the felling will be undertaken. If the FC is of the opinion that it appears an offence has been committed, the FC may refer the case for prosecution and / or secure the restocking of a felled site by serving a Restocking Notice in accordance with section 17A of the Act.

LAs are therefore advised to record evidence as to which felling exceptions they are relying upon prior to authorising tree felling works.

3. Act of Parliament exception

Of particular relevance to LAs is the ‘Act of Parliament’ exception to the need for a felling licence. Section 9(4)(b) of the Act states that the requirement for a felling licence does not apply to any felling which “is in compliance with any obligation imposed by or under an Act of Parliament, including this Act”.

An ‘obligation’ is read to mean a duty. A statutory power to do something is not an obligation (see below). A common example of the Act of Parliament exception is felling works that are required to be carried out in compliance with a duty placed upon a local highways authority by the Highways Act 1980. LAs have a duty to maintain the safe passage of the highway (including pavements). Meeting this obligation may involve felling trees. For example, tree roots may cause significant damage to the highway, or be at a substantially elevated risk of falling on the highway (thereby causing obstruction, damage or injury).

A risk based approached will often need to be taken by LAs in relation to the potential for a tree to fall on the highway. LAs should assess trees as to the likelihood of their falling in the foreseeable future and the impact that will result should the tree fall. It is noted that LAs are not obligated to remove all trees simply because they are within striking distance of the highway.

If by a combination of the health, condition or position of the tree is such that it interferes with a person’s safe passage of the highway, then the Act of Parliament exemption will be engaged if the LA is under a duty to fell that tree under the Highways Act 1980.

It must be noted that the Highways Act does not provide a blanket exception to LAs for the need for a felling licence. LAs will need to demonstrate that a statutory duty to fell the trees applied at the time of felling (either under the Highways Act 1980 or some other Act of Parliament). A statutory power to do something (i.e. which is optional) is not sufficient to engage this exemption to the need for a licence. The LA must be under a duty to act (i.e. which is mandatory) for the exemption to be engaged; for example, to maintain the safe passage of the highway. Once a duty to act arises, LAs will have a reasonable degree of discretion as to how to fulfil that duty (e.g. whether to fell a tree or to prune it). That said, the FC encourages the retention of all trees wherever appropriate to do so.

If the felling is not excepted under the Act of Parliament exemption, and no other exemption applies, the LA will require a felling licence to carry out felling works on any growing (i.e. living) trees. The FC can provide advice on whether a felling licence is required, prior to felling.

The FC has identified several areas where LAs may wish to adopt evidence gathering in relation to tree felling in order to protect themselves from future challenges. These are set out below.

4. Evidencing exemptions - record keeping

Any person or organisation who intends to fell trees utilising one or more of the exceptions set out in the Act is advised to collate evidence prior to the felling commencing. The evidence must be specific to each exception claimed, to meet the burden of proof which rests with them.

When collating pre-felling evidence the FC suggests that the following is recorded:

• dates of proposed and completed felling
• location of tree/s identified on a map
• job or contractor number
• details of the proposed contractor responsible of undertaking the works
• species of tree
• reason for felling
• the exception to the need for a felling licence that is engaged for each tree felled
• size category or actual measurements of trees height and diameter
• age (estimate or based on planting date)
• condition assessment of trunk and canopy, including photos
• history of previous works on the tree
• surrounding surface type (paving, grass, tarmac, concrete etc.)

5. Avoiding allegations of alleged illegal felling

The FC encourages LAs to engage with primary stakeholders and local residents regarding proposed felling operations at the earliest possible stage, and certainly prior to felling work being undertaken. Prior to new or renewed highways maintenance contracts (which include provisions for street tree felling) commencing, it may be appropriate for consultation to be undertaken with local residents. This may ensure they are fully informed of scheduled tree felling in coming years, as well as the maintenance options that are available to contractors when maintaining the highway.

Anyone involved in alleged illegal tree felling can be prosecuted. LAs may wish to review contract specifications to ensure that the contractor is obliged to record the suggested pre-felling evidence above.

The FC encourages LAs to carry out tree surveys at appropriate intervals to determine tree management schedules. The FC encourages LAs that only where an issue cannot be remedied by using alternative tree management should the trees be removed, under the authority of a felling licence if no exceptions apply.

The National Tree Safety Guidance (NTSG) carries out research into tree risk and produces a set of basic principles as a framework for considering and managing tree safety in the public interest. The NTSG have produced guidance on tree safety management for those responsible for trees. A link to these publications can be found under Sources of further advice.

Felling is not always necessary; alternative tree management solutions are available and may be more appropriate. There are a range of engineering and maintenance solutions that can easily be applied throughout any tree’s life that allow both the tree and the highway to mutually co-exist, each providing the benefits to society that are valued by residents and businesses in towns and cities; safe, usable highways and a high quality well managed and maintained urban forest. Please see Operations Note 051: Highway Tree Management for further information.

As the government’s forestry experts, the FC’s Woodland Officers are available to assist you with advice the need for a felling licence and the regulatory processes involved.

6. Sources of further advice

• Tree Felling – Getting Permission booklet
• UK Forestry Standard
• Operations Note 051 – Highway Tree Management
• Forestry Act 1967
• Forestry (Exceptions from Restriction of Felling) Regulations 1979
• Highways Act 1980
• Case law on burden of proof: Grundy & Co Excavations Ltd and Sean Parry v Forestry Commission (2003)
• National Tree Safety Group (NTSG) – Guidance and Publications