Dead, dying and dangerous: the exemptions from TPO control

The dead tree TPO exemption is narrower than the phrase most people repeat. Dead trees are exempt from the need for consent, and so are works urgently necessary to remove an immediate risk of serious harm. Dying is no longer a category. The Town and Country Planning (Tree Preservation) (England) Regulations 2012 removed it, so a tree that is declining, sparse in the crown or half dead is still fully protected and still needs an application.

Both exemptions carry a notice requirement, and both put the burden of proof on the person who did the work. Fell first and explain later and you are arguing your case from the weakest position available.

The dead tree exemption and the five day notice

Where a tree covered by an order is dead, the works are exempt from the consent requirement. The condition attached to that exemption is notice: the authority must be given at least five working days notice before the works are carried out, unless the case is one of urgency.

Five working days is short, and it exists so the tree officer can come and look. Use the time properly. Serve the notice in writing with the address, a plan or description identifying the tree, photographs, and a short statement of why the tree is dead. Keep proof of service.

What makes a tree dead is a question of fact, and the tests an arboriculturist uses are straightforward: absence of live tissue under the bark on scraping at several points and heights, no bud development in season, no foliage through a full growing season. Species matters, because some trees flush late and a beech assessed in April can look convincing when it is simply dormant.

Note: deadwood within a living tree is a different matter. Removing dead branches from a live protected tree is exempt in its own right, but the exemption covers the dead parts rather than the tree.

Works urgently necessary to remove immediate risk of serious harm

This is the exemption that gets misapplied. The test is not whether the tree is dangerous in a general sense. It is whether the works are urgently necessary to remove an immediate risk of serious harm.

Each word carries weight. Urgent means the work cannot wait for a five day notice or an eight week application. Immediate means the risk is present now, not foreseeable in the medium term. Serious harm means injury to people or significant damage to property.

A large limb hanging over a pavement after a storm meets it. A tree with a historic cavity, a lean it has held for 30 years, or a fungal bracket at the base does not, however uncomfortable that is for the owner. Those are cases for an application supported by an arboricultural report, and often for a phased programme of reduction rather than felling.

Where the urgent exemption is used, notice has to be given to the authority as soon as practicable after the works are carried out. That is the reverse of the dead tree position, and it is worth being clear about which exemption you are relying on at the time.

The other exemptions people forget

The 2012 Regulations contain a longer list than most homeowners realise, and several of the entries come up regularly.

Works necessary to prevent or abate a nuisance, with nuisance carrying its legal meaning rather than covering shade, leaf fall or a blocked view. Works to trees carried out in implementation of a full planning permission, where the permission and the approved plans make the removal necessary. Works by or on behalf of statutory undertakers and highway authorities in defined circumstances, including works to keep the highway safe and to maintain apparatus. Works required by an Act of Parliament. Felling under a licence granted by the Forestry Commission. Fruit trees cultivated for fruit production in the course of a business.

The planning permission exemption is the one that generates disputes on development sites. It applies where the removal is necessary to implement the permission granted, not where the applicant would find it convenient. If the approved layout shows a house on top of the tree, the exemption bites. If the tree sits in an area shown as garden, it does not, and our note on site clearance before a planning application explains why early removal is such a poor strategy.

Evidence to gather before anything is cut

Assume you will have to justify the decision to a tree officer who did not see the tree. Photographs are the least costly insurance available.

1. Take dated photographs from at least four directions, showing the whole tree and its context.
2. Photograph the specific defect close up, with a scale object in frame.
3. Commission a written assessment from a qualified arboriculturist, with the inspection date, the method used and a clear statement of the defect and the risk.
4. Serve the notice, and keep the sent email or the recorded delivery slip.
5. After felling, retain the stump at a height that allows inspection, and keep sections of the trunk or limb showing the decay.
6. Photograph the cut surfaces and the extent of decay in cross section.

Point five saves more cases than any other. A stump ground out to soil level on the same afternoon removes the only physical evidence that would have supported the owner.

Where the tree is part of a wider development, a tree survey and arboricultural impact assessment prepared to BS 5837:2012 provides the baseline that makes any later exemption claim credible. Councils usually expect a suitably qualified author and professional review is strongly advised.

Replanting after an exempt removal

Removing a tree under an exemption does not end the matter. Where a protected tree is removed because it was dead or because of the urgent works exemption, the landowner comes under a duty to plant a replacement tree of appropriate size and species at the same place as soon as reasonably practicable.

The authority can enforce that duty by serving a tree replacement notice, and the replacement tree becomes subject to the original order. The duty can be dispensed with on application, and authorities do agree to that where planting in the same spot makes no sense.

The duty runs with the land, so a purchaser can inherit it. Anyone buying a property where a protected tree has recently disappeared should ask what happened and whether a replacement was planted or waived.

When to apply instead

The honest answer for most householders is that an application is easier than an argument. Consent applications for works to protected trees are free, the authority has eight weeks to decide, and refusals carry a right of appeal to the Planning Inspectorate.

Where the tree is hazardous but the risk is not immediate, the sensible route is an application with an arboricultural report attached, proposing the works your arboriculturist recommends. Authorities agree to reduction, deadwooding and even felling far more often than owners expect when the case is evidenced. The article on specifying crown works councils will accept covers how to write that specification.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

If tree works form part of a wider project, enter the postcode on PlanScope to see which documents the application is likely to need. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.