Defra consults on tree felling consultation requirement

Out-Law News | 14 Jan 2019 | 11:56 am | 2 min. read

Local authorities in England would be required to consult publicly before felling 'street trees' under plans put forward by the Department for Environment, Food and Rural Affairs (Defra).

The proposals are designed to make it clearer who is responsible for decisions about street trees and what process they should follow, according to the government. Street trees are trees lining roads in urban settlements, as distinct from trees located in other urban areas such as parks or public spaces.

The government is also seeking views on strengthening the Forestry Commission's power to deal with illegal tree felling as part of the same consultation, which closes on 28 February 2019.

Planning law expert Kate Brock of Pinsent Masons, the law firm behind, said that local authorities' need to fell trees as part of highway maintenance or development work "has always been controversial within local communities".

"There is a tension between the local authority, which has a duty to maintain safe highways, and local people who are concerned about the erosion of trees in their street scene," she said.

"The government proposals would introduce a consistent and more transparent approach to tree felling across local authority areas. However, the proposed new duty for a four-week consultation with local residents would add an additional layer of complexity into the felling process, which could ultimately result in delays to development and highways projects," she said.

The consultation sets out three potential methods of giving effect to the government's 2017 manifesto commitment to introduce a duty to consult on the felling of urban street trees. Its preferred option is for a closed consultation for every tree proposed for felling during the four-week consultation period incorporating a 'trigger point' which, if reached, would trigger a full public consultation in respect of that particular tree.

The local authority would be required to place a notice inviting consultation on the tree proposed for felling, and to send letters to local residents in 'close proximity' to the tree, defined in the consultation as within a 100 square metre radius. A full public consultation would be triggered if more than 50% of respondents disagreed with the proposal.

The government is seeking views on potential exemptions to the new consultation requirement, for example where a tree is dead or infected, presents an immediate danger or is causing significant damage to certain infrastructure and urgent access is needed for repair. It is also proposing a new statutory duty requiring local authorities to report on tree felling and replanting activity "for which they are both directly and indirectly responsible", including trees which are felled as part of planning decisions. This duty does not appear to be limited to only street trees.

The consultation also proposes the production of best practice guidance to support local authorities in drawing up, consulting on and publishing their own 'tree and woodland strategy'. Although some local authorities already use such a document to set out their policy framework and management approaches for trees and woodlands, there is no requirement to do so and no consistent approach to publication.