Tree surgeon legal issues

There is a range of legislation which may apply to your tree services business, particularly in the areas of health and safety and employment law.

What licences does a tree surgeon need?

There are several activities that you are likely to engage in for which a licence or exception from licensing is required.

Tree felling licence

Everyone involved in felling trees in the UK needs to make sure that either:

• a tree felling licence has been issued for the work, or
• the work in question is covered by an exception from the licensing requirement

Exemptions cover trees in gardens, orchards and certain other locations. They also cover dangerous or nuisance trees and saplings. An exemption may apply in various other circumstances too.

Tree felling licences are issued by the Forestry Commission in England and Scotland, the Forest Service in Northern Ireland, and by Natural Resources Wales.

Information about tree felling licences and exemptions is available on the Forestry Commission website.

Chainsaw certificate

Under the Provision and Use of Work Equipment Regulations (PUWER), all workers who use chainsaws as part of their job need to be competent to do so. They normally need to hold a recognised certificate of competence or national competence award (sometimes referred to as the 'licence to practise') to demonstrate this. This applies to both employees and the self-employed.

National Proficiency Tests Council (NPTC) certificates and awards are the industry-standard proof of competence for chainsaw operators. NPTC training and qualifications are available from assessment centres throughout the country. You can find out more on the NPTC website.

Chainsaw operator training is also available from Lantra, the skills body for the land-based industries.

Tree work permissions

Before doing any work on a tree you should make sure that it is not covered by a Tree Preservation Order (TPO) or sited within a conservation area or site of special scientific interest. Some trees are also covered by restrictive covenants. Permission is required to do any type of work on a protected tree. Although it is normally the responsibility of the owner to ensure that all permissions have been obtained, you should always make sure that the correct procedure has been followed before you start work.

Tree work permission is granted by the local authority. There's more information about TPOs and trees in conservation areas on the Gov.uk website.

Waste management licensing and exemptions

If your business chips, cuts, shreds, pulverises, burns, composts or stores waste plant matter it needs either:

• an environmental permit or a waste management licence, or
• registration as exempt from waste management licensing

Businesses like tree surgeons can register as exempt from waste management licensing if they:

• chip/cut/pulverise/shred less than 500 tonnes (1,000 tonnes in Scotland and Northern Ireland) in any seven day period
• store less than 500 tonnes (1,000 tonnes in Scotland and Northern Ireland) tonnes of waste material at any one time
• burn less than 10 tonnes of waste material in any 24 hour period at the site where the waste was generated, producing no dark smoke (Scotland and Northern Ireland only)
• spread biodegradable waste and soil from gardens and parks on agricultural land (conditions apply)
• use wood chips from untreated wood to surface paths

Exemption levels also exist for composting or bio-digesting waste plant material.

Waste management licensing and exemption registration is administered by:

• the Environment Agency in England
• Natural Resources Wales (NRW)
• the Northern Ireland Department of Agriculture, Environment and Rural Affairs (DAERA)
• the Scottish Environment Protection Agency (SEPA)

Waste carrier registration

You will need to register as a waste carrier with one of the above bodies if you:

• carry away garden waste that you have removed. You'll need to register as a lower tier waste carrier (England, Wales and Northern Ireland) or a professional collector or transporter of waste (Scotland). Registration is free of charge and lasts indefinitely
• carry away demolition and construction waste. You'll need to register as an upper tier waste carrier (England, Wales and Northern Ireland) or a waste carrier (Scotland). Registration costs around £150 and lasts for three years
• carry away other people's waste, including garden waste. You'll need to register as an upper tier waste carrier (waste carrier in Scotland)

Other licences

You should also be aware of the following:

• to prevent the spread of plant disease and pests, a 'plant passport' from a registered forestry trader may be needed before a consignment of wood is moved. More information is available from the Forestry Commission and Natural Resources Wales
• some forestry projects, including planting new woods and deforestation, require an environmental impact assessment and Forestry Commission (or regional equivalent) consent before they can be started. More information is available on the Forestry Commission website
• a licence may be required for woodland operations that affect European protected species, particularly animals like dormice, bats and otters. More information is available on the Forestry Commission website
• approval is needed before restricting public access to woodland made accessible by 'right to roam' legislation. More information is available on the Forestry Commission website
• businesses that store and use explosives - for example to remove tree stumps - need to obtain the appropriate licences and comply with stringent regulations. Contact your local authority in the first instance for guidance
• businesses that use goods vehicles with a gross plated weight of 3.5 tonnes (or more than 1,525 kg if they are not plated) - perhaps for logging activities - need a goods vehicle operator's licence (a goods vehicle operator's licence in Northern Ireland). These can be obtained from the local Traffic Commissioner in Great Britain and from the Transport Regulation Unit (TRU) of the Department for Infrastructure (DfI) in Northern Ireland. Drivers must also be appropriately licensed. More information is available on the Gov.uk website - and from the DfI in Northern Ireland

Note that skips placed on a public highway require a highway permit from the local authority. In some cases, a controlled parking permission is also required. Charges for these licences vary - your local authority will be able to give you details of charges that apply in your area. If you hire skips for disposing of tree waste, ask the hire company who is responsible for obtaining the necessary licences and permits.

If you're involved in forestry activities, be aware that planning regulations make special provision for things like on-site structures used for forestry and woodland management. Your local authority will be able to advise you.

Voluntary certification

Many would-be customers will want to satisfy themselves that your business does good quality work using safe and appropriate techniques. Clients like local authorities, the National Trust and the Ministry of Defence are particularly likely to want evidence that your business works to a high standard.

One way of demonstrating your commitment to quality is to gain certification for your workmanship. A British Standard, BS 3998, covers most aspects of tree work. The Aboricultural Association operates an approved contractor scheme for tree surgeons who have attained BS 3998. More information is available on their website.

If you use machinery like elevating 'cherry picker' platforms and other construction plant, getting a skills registration card is a good way of showing that your business complies with the requirement under the Health and Safety at Work Act for operators to be suitably trained. The construction industry Sector Skills Council CITB offers one of the best known card schemes, the Construction Plant Competence Scheme (CPCS). You can find out more about the CPCS on the CITB website.

Operators with a commitment to health and safety can sign up to the Contractors Health and Safety Assessment Scheme (CHAS), which helps participants to demonstrate to customers and clients that they comply with health and safety standards. You can find out more on the CHAS website.

Tree surgeons who want to demonstrate their commitment to fair trading can join a recognised vetting and approval scheme like Buy with Confidence - Trading Standards Approved. There's more information about the scheme and details of local authorities which participate in it on their website.

Tree protection legislation

Some trees are protected by special legislation. Specifically, a tree is protected if it:

• is the subject of a Tree Preservation Order (TPO)
• is situated in a Conservation Area

Other protections may also apply in some cases.

No work can be done on a tree that is protected by a TPO without formal consent from the local authority. If permission is granted, it is likely to be conditional on the work being carried out to certain standards by a properly qualified tree surgeon.

Before working on any tree sited within a Conservation Area it is necessary to notify the local authority, usually at least six weeks in advance. This enables them to consider whether the tree should have a TPO applied to it. If this occurs then the normal procedure for seeking permission must be followed. A number of useful publications about TPOs, including Rules on Tree Preservation Orders, are available free from the Gov.uk website.

You should become familiar with all aspects of tree protection legislation so that you are able to advise clients properly and to make sure that you don't inadvertently help a client to break the law. Some clients will want your assistance with applications for permission and appeals.

Forestry and countryside

Management and conservation of forestry is covered by several important acts and regulations. These include:

• Forestry Act and updates
• Plant Health Act and Plant Health (Forestry) Order
• Countryside Acts
• Forestry (Felling of Trees) Regulations
• Hedgerow Regulations

Wildlife in and around trees and woodland areas is heavily protected.

More information about forestry and countryside legislation is available on the Forestry Commission website.

Environmental protection

The Environmental Protection Act and regulations made under it apply to the handling and disposal of all waste, including materials like wood, bark and foliage.

Legislation specifically covers cutting, chipping, burning and storing wood, bark and other plant matter. If your business deals with very large quantities of these then you may need an environmental permit or waste management licence.

Environmental protection legislation covers a wide range of other issues, including nuisance noise and emissions to air (burning).

Health & Safety, fire

You must comply with workplace health and safety and fire safety legislation.

Health and safety legislation is particularly relevant to the tree services industry due to the high levels of risk associated with both chainsaws and working at height. Other potential hazards include dangerous machinery like wood chippers, falling objects, loud noises, lifting heavy weights and handling petrol.

The Health and Safety at Work Act and the numerous regulations made under it cover all aspects of workplace health and safety. Employers have a duty to ensure the health and safety at work of all their employees. Those with five or more employees must prepare a written health and safety policy statement. The following regulations are of particular relevance to tree surgeons and arborists:

• Provision and Use of Work Equipment Regulations (PUWER). Under the approved code of practice which supports regulation 9 of PUWER, all workers who use chainsaws must be fully competent and most are required to hold a recognised certificate of competence. PUWER also applies to all lifting and climbing equipment used
• The Work at Height Regulations. These cover all work done at height where there is a risk of falling that could cause personal injury. The Regulations place very specific duties on both employers and self-employed workers to make sure that all necessary safety precautions are taken when people are working at or above a certain height
• Lifting Operations and Lifting Equipment Regulations (LOLER)
• The Management of Health and Safety at Work Regulations. These require all risks to health and safety in the workplace to be assessed
• Manual Handling Operations Regulations
• Personal Protective Equipment at Work Regulations

The above list is by no means exhaustive. Full details and guidance notes are available on the Health and Safety Executive (HSE) and Health and Safety Executive Northern Ireland (HSENI) websites and from your local authority environmental health department.

Employment legislation

Anyone employing staff must comply with employment legislation. Important areas of legislation include recruitment, employment contracts, pay, working hours, holidays, employment policies, sickness, maternity, paternity, discrimination, discipline, grievances, dismissals, redundancies and employment tribunals.

Insurance for a tree surgeon

Full cover is particularly important for tree surgeons and arborists whose activities are potentially hazardous to themselves, their employees, the general public and to property. Most reputable trade associations require their members to hold at least a minimum level of public liability insurance - the Arboricultural Association, for example, recommends at least £5 million worth of cover. Guidelines to help consumers and businesses choose a good tree surgeon always urge them to check that they are properly insured - this is one of the key things that will set your business apart from the 'cowboys' you'll be competing against.

Contact an insurer and explain exactly how your business will operate - they will then explain what insurance cover you must have by law, and other cover you should consider. This might include:

• full public liability
• employer's liability, including high level work
• professional indemnity if you offer consultancy and advice
• motor insurance (for business vehicles), possibly with cover for goods and equipment carried in your vehicles
• plant and equipment cover

Other types of cover to consider include:

• personal cover - accident and injury, loss of earnings and so on
• business interruption
• contract indemnity
• premises and premises contents (if you have any premises)

When taking out personal and employer's liability cover it is particularly important to give precise details of the types of activity that you and any staff will be engaging in. Be prepared to answer questions about the type of work you will be doing, where and how high you will be working, the type of materials and equipment you will be using, your health and safety policy and so on.

Many trade associations can advise their members on insurance matters. This service can be very useful, as finding proper cover at an affordable rate can be difficult in this industry. The Forestry Contracting Association (FCA), for example, offers discounted business insurance rates to its members. Some specialist business insurers offer discounts for tree surgeons who belong to one of the main trade bodies.