Appealing a refusal of consent for protected tree works

There is no appeal against a Tree Preservation Order itself. There is an appeal against a refusal of consent to carry out work to a tree the Order protects, and the deadline is 28 days from the decision notice. Those two sentences catch out more owners than any other point in tree law, because the moment to influence the Order is before it is confirmed, and the moment to challenge a refusal is the four weeks after the letter arrives.

If you are an investor holding a site with protected trees, the practical consequence is that you have two separate windows and different evidence works in each.

The objection window, before the Order is confirmed

An authority makes an Order under section 198 of the Town and Country Planning Act 1990, and it takes effect provisionally straight away. The council must then serve notice on the owners and occupiers of the land, with a period of at least 28 days for representations, and it must consider any objections before deciding whether to confirm. If it does not confirm within six months of making the Order, the Order lapses.

That window is the only chance to argue that the Order should not exist, or should cover fewer trees. Objections that carry weight go to the statutory basis for the Order, which is amenity and expediency: whether the trees make a real contribution to the amenity of the area, whether they are visible from public vantage points, whether they are in a condition that justifies long term protection, and whether protection is expedient in the circumstances.

An objection that says the trees are inconvenient will not succeed. One supported by an arboricultural report showing advanced decay, poor form and a limited safe useful life expectancy sometimes does, and it may at least narrow the Order to the specimens worth keeping.

After confirmation, the only route against the Order itself is judicial review in the High Court, on the lawfulness of the process rather than the merits of the trees.

Applying for consent, and what a refusal means

Work to a protected tree needs the authority's written consent, applied for on the standard form. The authority has eight weeks to decide, and if it fails to decide within that period you can appeal against non-determination.

A refusal, a conditional consent, or a failure to decide all give a right of appeal to the Secretary of State under the 2012 Regulations, determined in practice by the Planning Inspectorate. The appeal has to be made within 28 days of the decision notice, or within 28 days of the end of the eight week period where nothing was decided.

Twenty eight days is short. Start assembling the evidence when the application goes in, not when the refusal arrives.

The grounds that carry weight

The Inspector weighs the amenity value of the tree against the reasons for the work. The arguments that succeed tend to fall into four groups.

Condition and safety. Decay, structural defects, disease or a failing root plate, evidenced by a proper inspection using recognised methods, and where appropriate by decay detection. A statement that the tree looks unsafe is not evidence. An inspection report identifying a defect, its likely mode of failure and the target beneath it, is.

Damage to property. Direct damage from roots to drains, walls or foundations, or subsidence on shrinkable clay soils. Subsidence cases need both engineering and arboricultural evidence, and they are the most technically demanding of the four, as our note on trees and subsidence claims on neighbouring property explains.

Reasonable management. Where the application is for pruning rather than felling, the argument shifts to whether the specification is appropriate for the species and the tree's condition. Applications drafted loosely get refused on the drafting, which is avoidable, and the way to write them is covered in pruning specifications and writing them properly.

Amenity, honestly assessed. A tree in a back garden, screened from every public vantage point, contributes less to public amenity than a street frontage specimen, and that is a legitimate argument when made with photographs from actual public viewpoints.

What rarely works alone: leaf fall, shading of a garden, blocked light to a window, fear of future damage, and the desire to build something in its place. Those are real inconveniences and Inspectors hear them constantly.

The evidence an Inspector expects

For any appeal above the trivial, the pack should contain:

1. An arboricultural report from a suitably qualified arboriculturist covering species, dimensions, condition, defects, life expectancy and the recommended works with a reasoned justification.
2. Photographs from public vantage points as well as from the property, dated.
3. A plan showing the tree, the property and any affected structure with distances.
4. Where damage is claimed, evidence linking the tree to the damage: root identification, soil analysis for shrinkable clays, crack monitoring, level monitoring or drainage survey results.
5. Alternatives considered and why they were rejected, such as a pruning cycle, root barriers, drain repair, or underpinning.
6. Any replacement planting proposed, with species, size and location.

Point five carries more weight than owners expect. An appeal that shows the less costly and less drastic options were assessed properly reads as a considered case rather than a preference for removal.

Where the work relates to development, a survey prepared to the British Standard becomes the underlying document, and an Arboricultural Impact Assessment should set out the effect on retained trees and the protection proposed.

Timescales and procedure

Most tree appeals are decided by written representations, which suits the subject because the issues are technical and the Inspector will hold a site visit. Hearings are possible where the case is complex or where cross examination would add something.

Expect a site visit, and expect the Inspector to look at the tree from the street as well as from your land. Make sure access is available and that the tree is identifiable, with a plan matching what is on the ground.

Costs can be awarded against either party for unreasonable behaviour, which in this jurisdiction usually means an authority that refuses without reasoned arboricultural advice, or an appellant who submits no evidence at all.

Compensation, and its limits

Where consent is refused or granted subject to conditions, the 2012 Regulations allow a claim against the authority for loss or damage caused by the decision. Claims must be made within 12 months of the decision, and the regulations exclude certain losses, set a lower limit below which nothing is payable, and exclude loss that could have been avoided by taking reasonable steps.

In practice claims succeed for things like remedial works to a damaged structure, and rarely for lost development value. Read the regulations and take advice before relying on compensation as part of an investment appraisal.

Two exemptions are worth knowing because they avoid the process entirely. Work to a dead tree does not need consent, though five days' notice must normally be given to the authority and a replacement duty may follow. Work urgently necessary to remove an immediate risk of serious harm is also exempt, with notice as soon as practicable afterwards. Both are narrow, and an owner who stretches them commits an offence under section 210.

This is general guidance rather than legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. Browse the report types to see what a site with protected trees usually needs.