The dead tree exemption and the five day notice
The 2012 Regulations dropped dead, dying or dangerous. Two narrow exemptions replaced it, each with its own notice requirement and a replanting duty.
The dead tree exemption to a tree preservation order is narrower than most people think. Under regulation 14 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012, consent is not needed to cut down a tree that is dead, provided five days written notice is given to the local planning authority before the work starts. A separate exemption covers work urgently necessary to remove an immediate risk of serious harm, and there notice is given as soon as practicable afterwards. What the 2012 Regulations do not contain is the old formula people still quote.
Dying trees lost their exemption. So did trees that are merely dangerous in a general sense.
What the 2012 Regulations actually exempt
The 1999 Regulations and section 198(6) of the Town and Country Planning Act 1990 produced the familiar shorthand of dead, dying or dangerous. The 2012 Regulations replaced it with two tighter exemptions and a notice requirement attached to each.
| Exemption | Test | Notice |
|---|---|---|
| Dead tree | The tree is dead | Five days written notice before the works |
| Immediate risk | The work is urgently necessary to remove an immediate risk of serious harm | As soon as practicable after the works |
| Dead branches | Removing dead branches from a living tree | None required |
The five day notice is not a request for permission. The authority cannot refuse it, and the only thing it can do inside those five days is disagree that the tree is dead, which in practice means an officer visiting to look.
In a conservation area, trees without an order are protected by the section 211 notice regime instead, which requires six weeks notice for works. The same regulation 14 exemptions apply there, along with a separate exemption for small trees: those with a stem diameter not exceeding 75 millimetres measured at 1.5 metres above ground, or 100 millimetres where the work is thinning to improve the growth of other trees.
Dead against dying and dangerous
Dead means dead. No living tissue, no bud break in the last season, no cambium under the bark.
A tree in steep decline, with 60 per cent crown dieback and a failing root plate, is not dead. It may well need removal, and the route for that is an application for consent, which the authority must determine and which carries a right of appeal. Removing it under the dead tree exemption is a criminal offence even where every arboriculturist agrees it was doomed.
The practical test an officer applies is a scratch test on twigs and small branches at several points in the crown, plus a look at the base for fungal fruiting bodies and bark condition. Where an ash is in advanced ash dieback but still flushing, it is not dead. Where it has not flushed for a full growing season and the cambium is brown throughout, it is.
Ash dieback has made this argument common, and authorities have largely settled on the position that infection alone does not make a tree dead or an immediate risk. The tree survey that records condition properly is what settles it.
Immediate risk of serious harm
The second exemption does a different job and the bar is high in both halves.
Immediate means now, not this season. Serious harm means injury to people or substantial damage to property, not inconvenience or a risk of dropping small branches onto a lawn. A tree overhanging a road with a visible hinge crack in a main stem qualifies. A tree with historic decay that has stood for 20 years and might fail in a storm does not.
Only the work necessary to remove the risk is exempt. If reducing a limb removes the hazard, felling the tree is not covered, and an authority that finds a whole tree on the ground where a single branch was the problem will treat the felling as unauthorised.
Subsidence claims sit awkwardly here. An insurer's arboricultural report recommending removal is evidence, and it is not the same thing as an immediate risk of serious harm, so the application route is usually the right one. That is a different analysis from the one in subsidence claims involving a neighbour's property.
Giving notice before or after the works
Get the mechanics right, because the notice is the part authorities check.
- Write to the tree officer, by email if the authority accepts email, and keep the sent record.
- Identify the tree by reference to the order schedule and plan number where possible, and by position on a sketch plan otherwise.
- State which exemption you rely on and why, in one or two sentences.
- For a dead tree, state the date works will start, and do not start before the five clear days have run.
- For an immediate risk, send the notice as soon as practicable after the work, with the photographs attached.
- Keep everything for the life of your ownership.
Five days means five clear days. Sending a notice on Friday afternoon and felling on Tuesday morning is the kind of arithmetic that ends up being tested.
Evidence to record before cutting
This is the section that saves people. Once the tree is on the ground and chipped, the evidence that it was dead has gone.
Take dated photographs of the whole tree, the base, the crown against the sky and at least two close-ups of cut twigs showing no green tissue. Keep a metre length of stem, or at least a set of discs from the main stem, somewhere dry. Where an arboriculturist has inspected, get a short written record with the date, the method and the conclusion, even if it is one page.
For an immediate risk felling, photograph the defect specifically. A crack, a failed union, an uprooted root plate, the lean relative to a fixed reference. A general photograph of a large tree near a house proves nothing.
Illustrative example: a mature ash under an order, no flush for a full season, cambium brown at four sample points. Five day notice sent by email with six photographs and a one page arboricultural note. The officer replied agreeing the tree was dead and confirming the replanting duty. Felled on day six. Total cost of compliance: one email and half an hour of photography.
Replacement duty after an exempt felling
Section 206 of the Town and Country Planning Act 1990 imposes a duty to replace. Where a tree subject to an order is removed because it was dead, or because works were urgently necessary to remove an immediate risk of serious harm, the landowner must plant another tree of an appropriate size and species at the same place as soon as they reasonably can.
The replacement tree becomes subject to the same order automatically. There is no need for the authority to make a new one.
Two points are worth knowing. The authority can dispense with the duty on application, which is the route where the same place is unsuitable in practice or where the tree was in a woodland. And the duty is enforceable by a tree replacement notice under section 207, served within four years, which can be appealed to the Secretary of State. In a conservation area, section 213 imposes an equivalent duty.
Agreeing the species and position with the tree officer at the same time as the five day notice avoids a second conversation later. A landscape strategy is the natural place to record it where the felling sits inside a development scheme.
Where the exemption is misused
Three patterns account for most enforcement.
The first is the contractor who says a tree is dead because it looks poor in February. Deciduous trees in winter and trees under drought stress both read as dead to an untrained eye.
The second is ring-barking, root severance or heavy pruning that kills a tree so it can be removed as dead later. Section 210 makes it an offence to wilfully destroy a protected tree, and destruction includes rendering it useless as an amenity. The fine on conviction is unlimited where the tree is destroyed.
The third is the felling done first and notified afterwards on the basis that it was probably dangerous. The immediate risk exemption requires the risk to have existed at the time, and the burden of showing it falls on whoever did the work.
Where the tree is in a woodland, a felling licence from the Forestry Commission may also be needed, and planning consent alone is not enough.
This is general guidance, not legal advice. Whether a tree is dead or presents an immediate risk is a question of fact in each case, so take advice from an arboriculturist and check with your local planning authority before cutting. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
How much notice do I need to fell a dead tree under a TPO?
Five days written notice to the local planning authority before the works start, under regulation 14 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012. The authority cannot refuse the notice. It can disagree that the tree is dead, so expect an officer to visit within that period, and count five clear days rather than five working days loosely.
Does the exemption cover a dying tree?
No. The 2012 Regulations dropped the old dead, dying or dangerous formula. A tree in decline, however far advanced, needs an application for consent, which carries a right of appeal if refused. Felling a dying tree under the dead tree exemption is a criminal offence even where every arboriculturist agrees the tree had no future.
When can I fell first and notify afterwards?
Only where the work was urgently necessary to remove an immediate risk of serious harm, and only to the extent necessary to remove that risk. Notice must be given as soon as practicable after the work. Photograph the specific defect before cutting, because the burden of showing the risk existed falls on whoever carried out the works.
Do I have to replant after felling a dead protected tree?
Yes. Section 206 of the Town and Country Planning Act 1990 requires the landowner to plant a replacement of appropriate size and species in the same place as soon as reasonably practicable, and the new tree falls under the same order automatically. The authority can dispense with the duty on application where the position is unsuitable.
Is ash dieback enough to treat an ash as dead?
Not on its own. An infected ash that is still flushing is alive, and infection alone does not make a tree an immediate risk either. Where the tree has not flushed for a full growing season and the cambium is brown at several sample points, the dead tree exemption applies. Record the sample points and photograph them.
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.