Dead, dying and dangerous trees: the five day notice
The 2012 regulations narrowed the old dead, dying or dangerous exemption. Knowing which limb you are relying on, and what notice it requires, is what keeps a felling lawful.
The old shorthand was dead, dying or dangerous. It is out of date, and relying on it is how householders end up in a prosecution file. The 2012 regulations narrowed the exemption, and the two limbs that survive are work to a dead tree, and work urgently necessary to remove an immediate risk of serious harm.
A tree in decline is no longer exempt because it is declining. If it is not dead, and it does not present an immediate risk, the works need consent from the local planning authority in the usual way.
The two limbs, and the notice each requires
Work to a dead tree can be carried out without consent, provided five working days notice is given to the local planning authority before the work happens. The notice is not an application and the council does not approve it. It is a window in which an officer can come and look.
Work urgently necessary to remove an immediate risk of serious harm can be carried out without prior notice. Notice must then be given to the council as soon as practicable after the work is done.
The difference matters because the second limb is judged retrospectively and the first is not. Give the five day notice on a dead tree and the council has had its chance. Fell a live tree on the urgency limb and you will be asked to justify it.
Both notices should describe the tree, its location, the work carried out or proposed, and the reason. Send them in writing, keep the sent copy, and address them to the tree officer rather than a general inbox where possible.
What immediate risk of serious harm means in practice
The wording sets two hurdles: the risk has to be immediate, and the harm has to be serious. A tree that will probably fail within five years fails the first. A tree over a field where nothing would be hit fails the second.
Cases that plainly qualify look like this. A large limb hung up in the crown above a public footway. A stem with a fresh crack that has opened since the last storm. A tree partly uprooted and leaning onto a building. Root plate movement visible at the base with the tree over a highway.
Cases that do not qualify are more common. Fungal brackets on a stem, which indicate decay but not necessarily imminent failure. Deadwood in the crown, which can be removed selectively without felling the tree. A large tree close to a house that has been there for eighty years. Storm anxiety.
Where a tree presents a real hazard but not an immediate one, the correct route is an application for consent, and the council can deal with it quickly if the case is explained. Officers respond well to being told about a problem before it becomes an emergency.
Gather the evidence before the work, not after
The burden of showing an exemption applied sits with the person who carried out or caused the work. That is the practical heart of this subject.
Before any tree comes down under either limb:
- Photograph the whole tree from at least two angles, dated, with something in shot for scale.
- Photograph the specific defect close up, and any target beneath it.
- Get a written opinion from an arboriculturist, even a short email, identifying the defect and the risk.
- Record the date and time you formed the view, and who advised you.
- Send the notice, before the work for a dead tree and immediately afterwards for urgent work.
- Keep the arisings where possible, because a section through a failed stem shows decay in a way no photograph does.
Contractors will sometimes assure a householder that a tree is exempt. That assurance is not a defence. The contractor may be prosecuted as well, and both parties tend to blame each other once the notice arrives.
An arboricultural assessment prepared to BS 5837:2012 is the document practitioners rely on where development is also involved, and a shorter tree condition report is what the situation calls for where the only question is safety.
One further exemption is worth noting because it is misread constantly. Work required to implement a full planning permission is exempt, which allows a protected tree to be removed where its removal is necessary to build what has been permitted. That exemption does not extend to permitted development, to outline permissions before reserved matters, or to work that goes beyond what the approved drawings actually require.
Conservation area trees follow a different route
Trees in a conservation area that are not covered by an order are protected by a separate mechanism. Anyone proposing work has to give the council six weeks notice, during which the authority can make a tree preservation order to protect the tree, or let the period run and allow the work.
The same exemptions apply in broad terms, including the dead tree and immediate risk provisions, and a comparable duty to replace arises where a tree is removed. Do not assume the six week notice and the five working day notice are interchangeable. They are different notices for different situations.
What happens if you get it wrong
Contravening a tree preservation order is a criminal offence. For destroying a protected tree, or damaging it in a way likely to destroy it, the offence is triable in the magistrates court with a substantial fine, and courts take account of any financial benefit gained from the works.
Councils also serve tree replacement notices where the replanting duty has not been met, and those can be served up to four years after the failure.
Insurers and neighbours complicate matters. A neighbour who believes a protected tree is dangerous can report it, and can also bring a civil claim in nuisance about overhanging branches or encroaching roots, which is a separate matter from the order. Common law rights to abate a nuisance by cutting back to the boundary do not override a tree preservation order, and that misunderstanding accounts for a fair share of prosecutions.
If work has already been carried out and the exemption looks doubtful, take advice at once rather than waiting for the council. Councils weigh cooperation, and an owner who reports the position, explains what happened and offers replacement planting is in a materially better position than one who says nothing.
Illustrative example: a mature ash in a suburban front garden, protected by an order, shows extensive dieback and a fungal bracket at the base. It stands over a pavement. The owner commissions a tree report which finds significant basal decay and recommends removal within the season, but does not identify an immediate risk of failure. The correct route is an application for consent, not the urgency exemption, with the report submitted and a replacement offered. This example is illustrative.
Where trees interact with a building project rather than a safety concern, the decisions are better made at design stage. PlanScope drafts tree and landscape documents structured to UK planning policy, with site facts flagged where they need confirming, and the full report index shows which ones apply. Enter your postcode on the PlanScope home page to check a site against the constraint layers.
This is general guidance, not 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.
Frequently asked questions
Is a dying tree still exempt from a tree preservation order?
Not on its own. The 2012 regulations narrowed the exemption, which now covers dead trees and work urgently necessary to remove an immediate risk of serious harm. A tree in decline that presents no immediate risk needs a formal application for consent. That change caught out a generation of practice built on the older wording.
How much notice do I have to give before felling a dead tree?
Five working days notice to the local planning authority before the work is carried out, unless the work is urgently necessary to remove an immediate risk of serious harm, in which case notice is given as soon as practicable after the work. The notice period exists so the council can inspect and, where appropriate, disagree.
What counts as an immediate risk of serious harm?
A real and present danger of significant injury or damage, judged on the facts at the time. A hung up limb over a footpath, a failing stem with an open crack, or a tree already partly uprooted would qualify. Aesthetic decline, historic damage, a fear of future failure and general nervousness after a storm would not.
Who has to prove the exemption applied?
The person who carried out or caused the work. That is why photographs, a dated arboricultural opinion and any evidence of the defect matter so much. Councils investigate reported fellings, and a defence built on recollection months later against a stump and a pile of logs rarely succeeds.
Do I still have to plant a replacement?
In most cases yes. The duty under section 206 of the Town and Country Planning Act 1990 arises where a protected tree is removed, and it applies to removals under the dead tree and immediate risk exemptions as well as to unlawful ones. The council can dispense with the duty on application, and that has to be asked for.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.