The duty to replace a protected tree after felling
Remove a tree covered by a TPO and a replacement duty usually follows automatically, falling on the landowner. Here is the species, size, timing and enforcement picture.
If a tree protected by a Tree Preservation Order is removed, a replacement tree duty under a TPO usually follows automatically, and it falls on the landowner rather than on whoever did the cutting. Section 206 of the Town and Country Planning Act 1990 requires the owner to plant another tree of appropriate size and species at the same place as soon as they reasonably can. That duty applies whether the tree was felled unlawfully, felled because it was dead or dangerous under the statutory exemption, or removed with consent where the council attached a replanting condition.
Homeowners are regularly surprised by this. The tree came down lawfully because it was dead, the contractor left, and eighteen months later a notice arrives requiring a replacement. The duty was there all along.
Where the duty comes from
Section 206 creates the duty for trees protected by an Order. Section 213 does the equivalent job for trees in a conservation area that are removed in contravention of the notice requirements. Where consent was granted subject to a condition requiring replanting, the obligation comes from the condition rather than from section 206, and the wording of the condition governs.
The distinction matters because the enforcement route differs, but the practical outcome is the same: a tree goes, another tree comes. The Town and Country Planning (Tree Preservation)(England) Regulations 2012 set out the procedure, and the national guidance on tree preservation orders explains how councils are expected to use it.
Removal in contravention of an Order is also a criminal offence, and for a tree whose loss would have a substantial effect on amenity the penalty can be severe. The replacement duty sits alongside that, not instead of it.
When the duty applies automatically
Three routes are worth separating.
Unlawful removal. The duty applies, and the council does not need to prove intent. The owner replaces the tree.
Removal under the dead or dangerous exemption. The exemption in the legislation removes the need for consent where a tree is dead, or where work is urgently necessary to remove an immediate risk of serious harm. It does not remove the replacement duty. This is the route householders fall down most often, and it is worth photographing the condition of the tree before removal, because you may need to justify the exemption later.
Removal with consent. Here the duty depends on whether the council imposed a condition. Most authorities do where the tree contributed to amenity. Read the decision notice.
The duty does not usually apply where consent was granted for felling in the course of carrying out development for which planning permission has been granted, because the loss was considered at the planning stage. Check the specific wording, because this is the exception people cite when it does not apply to them.
Species, size and position of the replacement
The statutory formula is a tree of an appropriate size and species, at the same place, as soon as the owner reasonably can. Each of those three elements gives room for discussion and all three are worth agreeing with the tree officer in writing.
Appropriate species is not necessarily the same species. A large-growing specimen in a small garden that has caused problems is often replaced with something smaller-growing, and most officers will discuss it. What they resist is a token replacement: a 1.5m ornamental where a mature oak stood.
Appropriate size usually means a nursery stock size that establishes reliably. Planting a larger specimen is not always better, because establishment failure rates rise with stock size and a smaller tree well planted overtakes a larger one within a decade.
Same place allows sensible flexibility. Where the original position now conflicts with a building, drains or sight lines, offer an alternative position with a reason. Where an owner wants to relocate the tree to a corner where it will never be noticed, expect refusal.
| Element | What the duty says | Where there is discretion |
|---|---|---|
| Species | Appropriate species | Smaller-growing alternatives, discussed with the officer |
| Size | Appropriate size | Nursery stock size, planting season and establishment |
| Position | The same place | Sensible relocation where the original spot is unusable |
| Timing | As soon as reasonably possible | Waiting for the correct planting season |
How long the duty lasts
The obligation to plant is not open-ended in the sense of being enforceable forever. The council's power to serve a tree replacement notice is subject to a time limit running from the date the authority became aware, or ought to have become aware, of the failure to comply. Check the current wording in the 2012 Regulations and the primary Act, since the limits are specific and worth getting right before advising anyone.
Separately, the replacement tree itself becomes protected. That is the point most people miss and it is covered below.
Planting season is a legitimate reason for delay. Bare root stock is planted in the dormant season, so a duty arising in June is reasonably discharged the following winter, and officers who understand planting will accept that. Saying nothing for a year and then pleading the season is less persuasive. Write to the tree officer, set out the intended planting date and species, and the correspondence becomes your evidence of reasonableness.
Enforcement by tree replacement notice
Where an owner does not plant, the authority may serve a tree replacement notice specifying what must be planted and the period for compliance. The notice is served on the owner of the land, and it runs with the land, so a purchaser can inherit it.
If the notice is not complied with, the authority may enter the land, plant the tree itself and recover its reasonable expenses from the owner. That is the practical end point, and the cost recovered is what the council actually spent, which is rarely the cheapest option available.
For anyone buying a property with a recently removed protected tree, this belongs on the enquiry list. A conveyancer who does not ask the council about outstanding tree matters leaves the buyer exposed.
Appealing a replacement notice
There is a right of appeal to the Secretary of State against a tree replacement notice, and the grounds run to matters such as the requirements being unreasonable, the period for compliance being too short, or the duty not having arisen at all. The appeal is determined by the Planning Inspectorate.
The realistic grounds in most cases are the details rather than the principle: the species specified is wrong for the position, the size is disproportionate, the position is impractical, or the timescale ignores the planting season. Those arguments succeed reasonably often, because they are the sort of point an inspector can resolve on the papers with a competent arboricultural statement.
Arguing that the duty never arose is harder, and it needs evidence about the original tree and its protection. This is where the earlier photographs matter, and where the reasoning in woodland felling licences and when planning is not enough sometimes becomes relevant on larger holdings.
How the new tree is protected
A tree planted under section 206 or under a replacement notice is automatically protected by the original Order as if it were the tree it replaced. No new Order is needed. So the sequence ends where it began, with a protected tree on the site and the same consent requirements applying to future works.
That has a practical consequence for design. If you are planning an extension in the future, deal with the tree position now rather than planting where the building will go, because you will need consent to move it later. Where a scheme is already in progress, the replacement should appear on the tree survey drawings and in the Landscape Strategy rather than being treated as a separate obligation, and the protection measures should reflect that the new tree is protected from the day it is planted.
Establishment is the part nobody enforces and everybody should care about. Watering through the first two summers, a stake removed at the right time, a mulch ring maintained, and no strimmer damage. Most replacement trees that fail do so in year two for want of water.
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. Enter your postcode on PlanScope to see which reports a scheme on your site is likely to need.
Frequently asked questions
Do I have to replace a protected tree that was dead?
Usually yes. The dead or dangerous exemption removes the need to apply for consent, but it does not remove the duty under section 206 of the Town and Country Planning Act 1990 to plant a replacement of appropriate size and species at the same place. Photograph the condition of the tree before removal, because you may need to justify relying on the exemption.
Who is responsible for planting the replacement?
The owner of the land, not the contractor who carried out the work and not the person who ordered it if they are not the owner. A tree replacement notice is served on the owner and runs with the land, so a purchaser can inherit an outstanding obligation.
Does the replacement have to be the same species?
The duty is a tree of appropriate size and species, which allows discussion. A large-growing specimen in a small garden is often replaced with something smaller-growing, and most tree officers will agree that in writing. What they resist is a token replacement well below the amenity value of the tree that was lost.
Is the replacement tree protected?
Yes. A tree planted under section 206 or under a tree replacement notice is protected by the original Order as if it were the tree it replaced, so no new Order is needed. That affects where you plant it, because moving it later will need consent.
Can a tree replacement notice be appealed?
Yes, to the Secretary of State, determined by the Planning Inspectorate. The grounds that succeed most often concern the detail: an inappropriate species for the position, a disproportionate size, an impractical position, or a compliance period that ignores the bare root planting season. Arguing that the duty never arose is harder and needs evidence about the original tree.
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.