You may have seen the widely reported felling of The Sycamore Gap tree, which once stood in a dip next to Hadrian's Wall in Northumberland. Nicknamed the Robin Hood Tree, the tree became famous after featuring in the 1991 film Robin Hood: Prince of Thieves. Two individuals have been arrested in connection with the felling.
In addition to the widely known cultural significance of the tree, its felling saw questions being asked about whether trees can simply be cut down, either in one's back garden, or in connection with diversification of rural land, which often necessitates the felling of trees.
This article looks at two factors which, amongst other elements like the planning regime, need to be considered before any tree felling can take place: tree felling permissions and title conditions which prevent tree felling.
Tree Felling Permission
Generally speaking, permission is not usually required to cut down a tree in your garden unless your property is in a conservation area or the tree is the subject of a Tree Protection Order (TPO). However, you must apply for Felling Permission if you wish to fell a tree outside of your home, unless the felling is exempt.
The most common exemptions relate to size, volume, and safety and are detailed in the Forestry (Exemptions) (Scotland) Regulations 2019. Felling without a valid Felling Permission (where one is required) is a criminal offence and may result a fine of up to £5,000 per tree and/ or prosecution.
A Felling Permission provides legal authority to fell the trees covered by the permission and may include conditions, for example, to ensure trees are replanted.
Statutory undertakers, such as Network Rail, ScottishPower, and Scottish Water are generally exempt and do not require Felling Permission.
What Felling Permission do I need?
The types of Felling Permission that can be obtained from Scottish Forestry are:
- Felling Permission Application (FPA) are typically granted for smaller-scale operations or one-off felling. They are usually granted for one to two years and can be conditional upon things like replanting.
- Long Term Forest Plans are usuallygranted for woodlands over 100 hectares and involve an in-depth scoping exercise to identify any challenges and opportunities to ensure the requirements of the UK Forestry Standard (UKFS) are met. The process takes around six months to a year to complete, and the Felling Permission usually has conditions relating to replanting for the first ten years of the plan.
- Management Plans are issued for woodlands under 100 hectares or Woodlands In and Around Town (WIAT) Urban Woodland Management Plans. They generally only permit thinning operations for up to ten years and any required felling would require a separate Felling Permission.
Tree felling title conditions
What happens if a Felling Permission is obtained but a restriction in the title deeds which prevents or restricts tree felling is discovered?
Scots law can impose title conditions on landowners. Title conditions are rights and obligations that affect the things that the owner may and may not do on or with the land.
A condition which restricts or prevents tree felling is known as a real burden and typically states that the landowner is "prohibited from lopping, cutting down, felling or lowering the height of any tree, bush, shrub or hedge without the prior written consent of a neighbour except if they are required to do so in terms of any statutory or local authority notice or order."
These burdens are often an attempt to protect the amenity or rural characteristics of the land, for example to protect or safeguard privacy or the owner's view from the property, but can also be rooted in environmental concerns and conservation efforts.
If there is a plan to diversify rural land and tree felling is necessary to achieve that, a burden which attempts to restrict or prevent tree felling may require further thought.
Are real burdens valid and enforceable?
If land is burdened by a tree felling restriction, that is the first question that needs to be asked.
The law in this area is complex but matters which require legal analysis include:
- the age and constitution of the burden;
- whether the burden has a duration (e.g. does it only restrict tree felling for a ten-year period which has expired); and
- whether the tree felling would materially impact the enjoyment and value of any property with rights to enforce the burden.
Options for dealing with the burden
Sunset rule
A burden created within a deed that was registered at least 100 years ago may be able to be discharged by a provision in the Title Conditions (Scotland) Act 2003 known as the "sunset rule".
A termination notice needs to be registered against the title but the owner of the property having the benefit of the burden must be given the opportunity to ask the Lands Tribunal for Scotland to preserve the burden.
Application to the Lands Tribunal for Scotland
An application to remove or vary a title condition could be made to the Lands Tribunal for Scotland under the Title Conditions (Scotland) Act 2003.
The owner of the property with the benefit of the burden must be given the opportunity to object. In that case, the Lands Tribunal will take into account a number of factors, including but not limited to:
- any change in circumstances since the burden was created;
- whether the burden still confers a benefit;
- the length of time that has passed since the burden was created; and
- the purpose of the title condition.
Engaging with interested parties
Before making an application to the Lands Tribunal for Scotland, it may be necessary (and indeed recommended) to engage with the owner of the property having the benefit of the burden.
An open dialogue can often lead to a negotiated solution whereby the burden can be waived or discharged (or even varied) without the need for formal proceedings, especially if the purpose of the restriction can be preserved through alternative means.
A compromise may involve agreeing to replant elsewhere on the land or adopting a selective felling approach which maintains the rural characteristics of the land, especially if there is a concern about visual or environmental impacts. This may avoid time-consuming and often costly disputes.
Title indemnity Insurance (TII)
TII may be sought as an alternative to seeking a discharge of the burden.
This can be cost effective, but it is essential that no discussions have taken place with the owners of those properties with the benefit of the burden which may alert them to their rights.
Comment
Tree felling requires a thorough consideration of both the legal and regulatory framework, and careful thought and a thorough legal analysis is key.
By engaging openly with interested parties, it may be possible to avoid disputes arising, however, legal advice should be sought at the earliest opportunity to ensure all avenues are explored.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
