Local authorities have statutory powers to make TPOs either for specific trees or for trees in a defined area. It is common when green-field sites such as those in Oxfordshire are being developed for housing for an order to be made covering existing trees on the site, which a Conveyancing Solicitor ought to address. If the council allows the developer to remove some trees to permit the proposed development, it is now common for an agreement to be made that the developer will plant new trees to replace any that have been felled.
Orders may be made at any time, not just when new houses are being built, and local authorities carry out regular reviews of trees in their area to consider if any need protecting.
Acting for homebuyers, a Conveyancing Solicitor will carry out a local search, and this will show if any TPOs are registered against the property. The Solicitor will then check whether there are any protected trees on the property. Preservation orders are often made in respect of the whole of a new estate, so there may be no trees on any particular house plot.
During the Conveyancing for the acquisition of a modern detached house in Manton Close, Bicester, Oxfordshire OX26, Fridaysmove Conveyancing Solicitor Laura Gill noted that the property was subject to a tree preservation order (TPO). She also saw that a previous owner had obtained consent for work to be carried out to a tree affected by the order.
Anyone buying a property which has a protected tree on it will need to be aware of the existence of the order, and that they should not cut it down or lop branches without obtaining consent from the relevant council department. In this case the local search revealed that the order had been made a few years ago, after the house was built. Laura asked for a copy of the original order, and checked that one of the protected trees was growing on the property. Approved work had subsequently been carried out to prevent the tree growing any higher.
The clients were given the following information in the report on title:
"The Property is subject to a Tree Preservation Order. Written consent of the Council must be obtained before trees at the property are lopped, topped or felled. Tree Preservation Orders are made by the Council under the Town & Country Planning Act 1990 and associated Regulations, to protect individual trees, groups of trees, trees in defined areas and/or woodlands. "
With few exceptions (the exemption being fruit trees in commercial orchards), it is an offence to top, lop, fell, uproot, wilfully damage or wilfully destroy a tree protected by an Order, without the formal written consent of the local planning authority. If you remove trees or do work to them without permission you could be prosecuted. You or your tree contractor can usually apply for work to protected trees on standard forms. If you want to remove trees, you may be required the council to plant replacements of the same species and in the same location.
Laura had completed the remainder of the Conveyancing work up to the point where contracts had been signed and she was ready to exchange contracts. She contacted the sellers’ solicitors, Alfred Truman of The Old Courthouse, 5 Sheep Street, Bicester, Oxfordshire OX26 6JB to agree a completion date. They then informed her that there would be some delay, due to a problem on their related purchase. The house their clients were buying was being sold by the executor of a deceased owner, and the executor’s Solicitors had not yet obtained grant of probate.
It is not uncommon for properties to be marketed before probate has been obtained, but a sale cannot be legally completed without it.
There are frequently delays in obtaining probate, so it is unwise to proceed too far with a sale until the grant has been issued. In this case the delay was entirely outside Laura’s control, and her clients had been unaware that there was a potential problem until late in the day. They had to wait for a short while until the sellers’ Oxfordshire Conveyancing Solicitors confirmed that they were finally able to proceed on their client’s purchase and the sale to Laura’s clients.