Harm‑centric sentencing for TPO breaches: replanting is not mitigation, failure to check is negligent, and fines must bite for wealthy offenders (R v Chamdal [2025] EWCA Crim 1384)

Harm‑centric sentencing for TPO breaches: replanting is not mitigation, failure to check is negligent, and fines must bite for wealthy offenders

Case: R v Chamdal [2025] EWCA Crim 1384 (England and Wales Court of Appeal, Criminal Division, 3 November 2025)

Introduction

This appeal arises from the unlawful felling of at least 132 trees protected by a Tree Preservation Order (TPO) on land at Debden Hall, Loughton, Essex. The appellant, Mr R. Chamdal, pleaded guilty in the Crown Court to contravening a TPO contrary to section 210(1)(c) of the Town and Country Planning Act 1990. He was fined £200,000 (with 3 years’ default term). The local planning authority, Epping Forest District Council, prosecuted.

The central issues on appeal were whether the fine was manifestly excessive because: (i) the offence was accepted to be one of strict liability rather than a deliberate flouting of the TPO; (ii) there was no financial gain; and (iii) there was an asserted unjustifiable disparity between the appellant’s fine and the £20,000 fines imposed on two arborists who had carried out some of the felling.

The Court of Appeal dismissed the appeal. In doing so, it delivered important guidance for sentencing TPO offences, clarifying the centrality of harm (including amenity, biodiversity and carbon storage), the non‑mitigating nature of replanting obligations, the limited role of environmental sentencing guidelines in this context, and the appropriateness of deterrent fines calibrated to an offender’s wealth.

Summary of the Judgment

  • Appeal dismissed: The £200,000 fine (after one-third credit for plea) was not excessive and was proportionate to the seriousness of the offence and the appellant’s means.
  • Culpability: Although the offence is of strict liability, on the facts the appellant’s culpability was at least negligent. He knew of the TPO and ought to have checked which trees were protected before instructing clearance. “Low or no culpability” was rejected.
  • Harm is central: The scale and nature of harm—132 trees over c.1.29 hectares, trees at least 20 years old, loss of amenity, biodiversity and carbon storage—were central to sentence. Harm is not “largely irrelevant” even if culpability were low.
  • Replanting not mitigation: An undertaking to replant was not a mitigating factor because s.206 imposes a statutory duty to replace unlawfully removed trees; replacement is typically with younger specimens and is not equivalent to the lost amenity.
  • Financial benefit and amenity gain: Even without quantifiable financial benefit (and no confiscation order), the court could and did treat the personal amenity benefit (site cleared for a much larger proposed home) as aggravating.
  • Wealth‑based deterrence: Courts may, and here did, take account of an offender’s wealth; fines must be set at a level that deters similar offending by others, particularly given the difficulty of monitoring protected trees and the public importance of environmental protection.
  • Guidelines: There is no Definitive Guideline for s.210 offences. The Environmental Offences Guideline is not read across for harm/sentence levels, though its culpability descriptors (low/negligent/reckless/deliberate) may assist. Sentencers must apply the General Guideline and the Sentencing Act 2020.
  • Disparity with arborists rejected: The arborists’ lesser means, fewer trees felled by them individually, and lack of personal amenity benefit justified significantly lower fines. There was no unjust disparity.

Analysis

Statutory framework and the nature of the offence

The Court situates sentencing for TPO offences within the statutory architecture:

  • TPOs (ss.198–201, 1990 Act; 2012 Regulations): TPOs protect specified trees/woodland in the interests of amenity. Regulation 13 prohibits cutting, lopping, topping, uprooting, destroying or damaging, or causing or permitting such acts, without prior written consent of the authority. Certain narrow exceptions (e.g., to implement a detailed planning permission) are in regulation 14.
  • Offence (s.210(1)): It is an either‑way offence, with an unlimited fine available in the Crown Court (but no custodial sentence as a punishment). The offence is strict liability: the prosecution need not prove knowledge of the TPO (Maidstone BC v Mortimer [1980] 3 All ER 552; R v Alath Construction [1990] 1 WLR 1255).
  • Replacement duties (ss.206–209): Unlawfully removed trees must be replaced; a tree replacement notice may be served and enforced by entry and works at the owner’s expense. This duty is separate from punishment.
  • Sentencing Act 2020:
    • Purposes include punishment and deterrence (s.57(2)).
    • Seriousness turns on culpability and harm caused/intended/foreseeable (s.63).
    • Fines must reflect seriousness, taking into account the offender’s financial circumstances—whether that increases or reduces the fine (s.125(1)–(3)); interplay with confiscation is governed by s.125(6).

Precedents cited and their influence

  • Maidstone BC v Mortimer [1980] 3 All ER 552: Knowledge of a TPO is not an element; the regime is designed to make it easy to check and hard to claim ignorance. This underpins the court’s insistence that owners must make proper enquiries before commissioning tree works.
  • R v Alath Construction [1990] 1 WLR 1255: Confirms strict liability and the structure of the prosecution case under s.210.
  • R v Palmer (1989) 11 Cr App R (S) 407: The court may assess financial benefit (e.g., saved costs) and emphasise deterrence; the replacement duty is separate from punishment. Chamdal relies on Palmer’s separation of replanting obligations from sentencing.
  • R v Davey [2014] 1 Cr App R (S) 34: Confiscation can remove financial gain; a fine can still address non‑pecuniary amenity benefit (e.g., improved view), with deterrence remaining a core aim. This case authorises treating amenity gain as relevant even where financial benefit is absent or addressed separately.
  • R (Natural England) v Day [2015] 1 Cr App R (S) 53: For environmental offences, fines on wealthy individuals must be set to punish and deter; a seven‑figure fine may be appropriate for gross negligence for commercial gain. Chamdal adopts Day’s wealth‑sensitive approach and the deterrence imperative.
  • R v Sellafield Ltd [2014] Env LR 19: Cited in Day for calibrating fines to very large entities; supports the proposition that means matter to ensure fines have real sting.
  • R v Sandhu [2017] 4 WLR 160: Warns against reliance on newspaper reports and ad hoc comparisons in sentencing submissions; Chamdal reiterates this discipline and urges practitioners to provide case‑specific, reliable material instead.
  • General vs Environmental Offences Guideline: There is no Definitive Guideline for s.210 offences. The Environmental Offences Guideline is not a template for harm/sentence levels in TPO cases, but its culpability taxonomy (low/negligent/reckless/deliberate) can be borrowed.
  • R (Smar Holdings) v Secretary of State [2025] EWCA Civ 1041: Referenced to situate trees’ role in the UK’s Net Zero strategy; supports treating carbon storage as part of “harm” in TPO sentencing.

The Court’s legal reasoning

The Court of Appeal’s reasoning can be distilled into six linked propositions that now structure sentencing for TPO breaches:

  1. Harm is “generally of central importance”. The court rejected any submission that harm is “largely irrelevant” where culpability is low. In TPO offences, harm encompasses:
    • number of trees affected;
    • type of damage (felling, topping, wilful damage, etc.);
    • spatial extent of works;
    • age and amenity/arboreal value;
    • relevant landscape/ecological designations; and
    • broader environmental functions (biodiversity, carbon storage) and national policy settings (e.g., Net Zero).

    On the facts, the loss of 132 trees over 1.29 hectares with attendant amenity, habitat and carbon impacts warranted a very substantial fine.

  2. Replanting is not mitigation. An undertaking to replant does not reduce culpability or harm. Replanting is a statutory duty (s.206), typically yields younger trees, and does not restore the lost amenity in the medium term. The penalty is to punish and deter; the replacement regime enforces restitutionary obligations.
  3. Failure to check equates to at least negligence. “Strict liability” at conviction does not equate to “no culpability” at sentence. Where an owner knows of a TPO but fails to ascertain which trees are protected before clearing, culpability is at least negligent. That was so here, particularly given the scale of felling in an area order; the appellant knew of the TPO and “ought to have known” which trees were covered.
  4. Non‑pecuniary amenity gain can aggravate. Even if financial benefit cannot be proved (and confiscation is not sought or not possible), the court may treat amenity gain for the offender—here, clearing the site to enable and enhance a much larger proposed dwelling—as a factor justifying uplift.
  5. Deterrent fines must reflect wealth. Consistent with Day and s.125 SA 2020, fines should bite. For a “very wealthy” offender, a high fine is justified to achieve punishment and deterrence. The court noted the potential use of a financial circumstances order (s.124 SA 2020) where means information is not volunteered.
  6. No read‑across for harm/sentence levels from the Environmental Offences Guideline. The Environmental Offences Guideline concerns different harms (pollution/discharges) and sentence levels; only its culpability categories assist. Sentencers should instead apply the General Guideline and case‑specific assessment of harm and means.

The Recorder’s approach—eschewing a per‑tree valuation in favour of a global figure that reflected overall seriousness, harm, deterrence and means—was expressly approved. Full one‑third credit for plea was upheld, given the judge’s finding that earlier late plea was due to incompetent legal advice.

Impact and future implications

This judgment furnishes a practical, harm‑led framework for TPO sentencing and will likely push fines upward where harm is large‑scale or offenders are affluent. Key implications include:

  • Elevated harm metrics: Prosecutors should present concise, reliable evidence on the number of trees, age/species, spatial footprint, amenity function, biodiversity role, and carbon storage implications. Where unlawful works obliterate evidence, rely on pre‑existing surveys, TPO schedules and site records. The evidential burden should remain proportionate to the case.
  • Wealth‑calibrated sentencing: Courts will probe means and may make s.124 orders if necessary. High‑net‑worth offenders should expect fines that “sting.” For extreme cases (e.g., reckless/deliberate large‑scale felling for gain), seven‑figure fines are not fanciful in principle (by analogy to Day).
  • No mitigation via replanting undertakings: Defence strategies should not rely on replanting to reduce fines. Replanting remains enforceable by notice and entry; it does not substitute for punishment.
  • Strict liability at conviction, meaningful culpability at sentence: Owners and developers cannot hide behind contractors. “Causing or permitting” captures those who direct or benefit from works. If you know a TPO exists and fail to check coverage before clearing, expect at least a negligence finding.
  • Amenity and policy context matter: Courts may weigh not only local amenity loss but broader environmental policy (e.g., contributions to Net Zero via tree cover), strengthening the public interest in robust sentencing.
  • Limited usefulness of comparative sentences: Press cuttings and ad hoc comparisons should not be advanced. Sentencing remains intensely fact‑sensitive.
  • Principals vs contractors: Marked differences in fines between landowners and operatives may be justified by means, scope of personal benefit, and their relative responsibility in causing or permitting the offending.
  • Confiscation not a prerequisite: Even if financial benefit is unquantified or confiscation is not pursued, fines can still reflect personal amenity gain and deterrence.

Complex concepts simplified

  • Tree Preservation Order (TPO): A legal order protecting specified trees/woodland for public amenity. You need the council’s written consent before cutting, lopping, topping, uprooting or destroying protected trees.
  • Strict liability (at conviction): The prosecution does not need to prove you knew of the TPO. If prohibited works occurred and you caused or permitted them without consent, you are guilty.
  • “Causes or permits”: You do not need to wield the chainsaw to be liable. Instructing, authorising, or failing to prevent prohibited works that you set in motion can suffice, especially where you control the land and the project.
  • Beneficial vs legal ownership: A beneficial owner (e.g., after exchange of contracts) may still be found to have caused or permitted works even before legal completion, depending on control and instructions given.
  • Replacement duty vs punishment: The law separately obliges the landowner to replant unlawfully felled trees (restoration). That duty does not reduce the criminal penalty (punishment and deterrence).
  • Amenity value: The public benefit derived from trees—appearance, landscape character, screening, habitat, recreation, and related ecosystem services (including carbon storage).
  • Confiscation order vs fine: Confiscation strips financial benefit. A fine punishes and deters and may also reflect non‑financial gains (like a better view or a “clean slate” development site).
  • Disparity in sentencing: Different fines for co‑offenders are acceptable if justified by differences in culpability, harm, means, or personal gain.
  • Guidelines: There is no definitive TPO sentencing guideline. Courts use the General Guideline and may borrow culpability labels from the Environmental Offences Guideline but not its harm bands or sentence levels.
  • Default term: Courts may set a period of imprisonment to be served if a fine is not paid (a “default term”). This is not a custodial sentence for the offence itself; s.210 does not permit custody as punishment.

Key features of the case facts (context)

  • At least 132 protected trees over about 1.29 hectares were felled in March 2021 on land covered by a 2008 TPO (individual trees plus an “area” order).
  • The appellant had exchanged contracts (beneficial owner) with access rights and was moving toward constructing a significantly larger home; the felling was said to enable a driveway and improve amenity for that intended development.
  • The 2016 permission for a smaller dwelling did not authorise the felling; earlier permitted tree works had been completed by February 2017.
  • Two arborists separately pleaded guilty; they were fined £20,000 each. The Court distinguished their means and roles from the appellant’s.
  • The Recorder gave full credit for a guilty plea (despite timing) due to earlier incompetent advice; the Court of Appeal did not disturb that approach.

Why the disparity argument failed

The appellant’s tenfold higher fine compared to the arborists’ fines was justified because:

  • Different scale and role: The arborists felled roughly 60–70 trees between them, whereas the appellant’s conviction covered the entirety of the 132 trees and the overall project impetus.
  • Means: The arborists had modest means; the appellant was “very wealthy.” Sentencing law requires fines to reflect means so they deter.
  • Personal benefit: The arborists did not derive the personal amenity enhancement that motivated the appellant’s instructions.

Practical takeaways for stakeholders

  • Landowners/developers:
    • Assume responsibility: if you know there is a TPO, do not proceed without locating protected trees and obtaining consent where needed.
    • Do not rely solely on contractors; the duty to check sits with you. Failing to check will likely be deemed negligent.
    • Do not expect replanting promises to mitigate sentence; they are obligatory anyway.
    • Be prepared to disclose financial means; wealthy offenders face higher fines.
  • Local planning authorities/prosecutors:
    • Present concise harm evidence: number/age/species, mapped extent, amenity/Habitat impacts, and carbon storage considerations.
    • Consider confiscation where quantifiable financial benefit exists, but emphasise amenity gain and deterrence in any event.
    • Invite the court to make a financial circumstances order if means are opaque and wealth is suspected.
    • Avoid relying on newspaper sentencing reports; provide authoritative materials and case‑specific facts.
  • Defence practitioners:
    • Address culpability squarely; a strict liability plea does not equate to low culpability where the client knew of a TPO.
    • Focus on genuine mitigation (e.g., cooperation, prompt cessation, remedial works beyond statutory minimums), not on replanting obligations themselves.
    • Provide full and reliable means information to avoid adverse inferences and outsized deterrent fines.
  • Sentencers:
    • Apply the General Guideline and SA 2020; borrow culpability descriptors from the Environmental Offences Guideline, but do not import its harm bands or sentence levels.
    • Adopt a global assessment of harm and seriousness; a per‑tree valuation is not required.
    • Articulate amenity and policy‑context harms (including carbon storage and Net Zero) where supported by evidence.
    • Record findings on means and, where appropriate, use s.124 SA 2020 orders to obtain means information.

Conclusion

Chamdal is an important sentencing decision for TPO offences. It confirms a coherent, harm‑centric approach and clarifies several recurring points:

  • Harm—measured by scale, amenity, biodiversity and carbon implications—is central to sentence, even where culpability is not deliberate.
  • Replanting is a statutory duty and is not mitigation.
  • Knowing about a TPO yet failing to check coverage before clearing is, at minimum, negligent culpability.
  • Fines must deter; for wealthy offenders, that justifies high figures calibrated to means.
  • Courts may treat personal amenity gain as aggravating even where financial benefit is unquantified and no confiscation order is made.
  • The Environmental Offences Guideline offers culpability language but not harm or sentence benchmarks for TPO breaches; the General Guideline and SA 2020 govern.

In short, the decision fortifies the protective purpose of the TPO regime by ensuring that unlawful felling—especially at scale and for personal enhancement—attracts fines that reflect real environmental loss and deliver meaningful deterrence.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Criminal Division)

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