Felling licence or consent for works to a protected tree

If you are deciding between a felling licence or TPO consent, the honest answer for most woodland owners is that you may need both, and they are granted by different bodies under different Acts. A felling licence comes from the Forestry Commission under the Forestry Act 1967 and controls the volume of timber you cut. Consent for works to a protected tree comes from the local planning authority under the Town and Country Planning (Tree Preservation) (England) Regulations 2012 and controls what happens to a specific tree.

Neither one overrides the other automatically. Getting that wrong is a criminal offence in both regimes, with different penalties attached.

Two permissions sitting over the same woodland

A block of farm woodland can carry a Tree Preservation Order made in the 1970s, sit inside a conservation area, and still be large enough to need a felling licence for commercial thinning. The regimes were written for different purposes. The Forestry Act exists to regulate timber production and keep woodland in productive management. The Tree Preservation Order regime exists to protect amenity.

Which means they ask different questions. The Forestry Commission wants to know about volume, species, restocking and the Forestry Standard. The council's tree officer wants to know about visual contribution, public views and the condition of individual trees.

The overlap trips up owners who assume that holding one permission is proof of the other.

When a felling licence is required

You need a felling licence to fell growing trees, subject to exemptions, where the volume exceeds the threshold set under the Forestry Act 1967. The key figures to work with:

• Up to 5 cubic metres may be felled in any calendar quarter without a licence.
• Of that 5 cubic metres, no more than 2 cubic metres may be sold.
• Trees with a diameter of 8cm or less measured at 1.3m above ground are exempt, rising to 10cm for thinnings and 15cm for coppice and underwood.
• Fruit trees, trees in gardens, orchards, churchyards and public open spaces are exempt from licensing.
• Dangerous trees and work to prevent a nuisance can be exempt, but the exemption is narrower than people assume.

Applications go to the Forestry Commission, and a licence will usually carry restocking conditions. Where woodland is managed under an approved woodland management plan with a felling licence attached, the plan does the work for the period it covers, which is normally the cleanest route for an estate with ongoing thinning.

The quarterly allowance is not an annual allowance you can bank. Four quarters of 5 cubic metres is 20 cubic metres across a year, but you cannot take 20 in one week in January and call it the year's quota.

How an Order interacts with a licence

Where a tree is covered by a Tree Preservation Order and the work also needs a felling licence, the Forestry Commission and the local authority consult each other. In broad terms, where a felling licence is granted, the Order does not then require a separate consent for the felling the licence authorises. The licence prevails for that operation.

That is not a free pass:

• Works that fall outside the licence, such as pruning, crown reduction or root severance, still need the authority's consent under the Order.
• Felling that is exempt from licensing because of volume is not exempt from the Order. The 5 cubic metre allowance has no equivalent in the Tree Preservation Order regime.
• In a conservation area without an Order, you must give the authority six weeks' notice under section 211 of the Town and Country Planning Act 1990 before cutting down, topping or lopping a tree above the size threshold, and the council may make an Order within that period.
• Trees protected by a planning condition on a permission are controlled by that condition as well, which is a third regime again.

So the sequence matters. Apply for the licence first where one is needed, and tell the Forestry Commission about the Order on the application, because they will consult the authority as part of determining it.

Who decides each

Both are free to apply for, which surprises people used to planning fees. The cost sits in the arboricultural evidence rather than the application.

Replanting conditions under each

A felling licence normally requires restocking, either by replanting or by natural regeneration, with a timetable and a maintenance period. The condition runs with the land, so a purchaser inherits it.

The Order regime works differently. Where consent is given for felling a protected tree, the authority can impose a replacement condition, and section 206 of the 1990 Act imposes a duty to replace a protected tree that is removed in contravention of an Order or because it was dead or dangerous. The replacement tree then becomes subject to the original Order automatically.

In practice the authority's replanting expectation is usually one-for-one, same general location, with a species and size specified. The Forestry Commission's expectation is stocking density across an area. An owner who satisfies one has not necessarily satisfied the other, and where a woodland carries both controls the two schedules need to be reconciled on a single plan.

Penalties, and why they differ

Felling without a licence where one is required is an offence under the Forestry Act 1967, and the Forestry Commission can serve a restocking notice requiring the land to be replanted and maintained. Failing to comply with that notice is itself an offence.

Carrying out work to a protected tree without consent is an offence under section 210 of the 1990 Act. For cutting down, uprooting, wilfully destroying or damaging a tree so as to be likely to destroy it, the offence is triable either way and the fine on indictment is unlimited. Other contraventions, such as unauthorised lopping, carry a lower maximum. The courts take account of any financial benefit the defendant gained, which is why development-driven tree loss is treated more seriously than untidy garden maintenance.

Enforcement in the Order regime is also faster than people expect, because a tree replacement notice can be served and appealed separately from any prosecution.

Getting the evidence right

For either route, the paperwork that makes the decision easy looks much the same. A plan at a sensible scale with every tree or compartment numbered. A schedule tying each number to species, diameter, condition and the proposed work. A reason for each operation that is about the tree or the woodland rather than about the development.

Where the trees sit near a proposed building, a tree survey to BS 5837:2012 gives the root protection areas and the constraints plan the authority will want anyway, and it feeds straight into an arboricultural impact assessment. Councils usually expect a suitably qualified author for that work, so professional review is strongly advised. Where woodland has ancient or veteran features, the irreplaceable habitat policy in the current National Planning Policy Framework sits on top of both consent regimes and is a stronger constraint than either.

If the woodland supports roosting bats, nesting birds or dormice, a licence or consent to fell does not authorise harm to those species. That is a separate offence under the Wildlife and Countryside Act 1981 and the Conservation of Habitats and Species Regulations 2017, and a Protected Species Survey has to be carried out by a suitably licensed ecologist. A PlanScope draft is a starting point for that professional, not a replacement for them.

One practical ordering point. Where a scheme needs planning permission as well, resolve the tree position before the application goes in rather than after, because a refusal reason about tree loss is hard to fix with a late amendment. The report index shows which arboricultural and ecological documents tend to travel together on this kind of application.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. This is general guidance, not legal advice; check the position with your local planning authority, the Forestry Commission or a qualified arboriculturist before relying on it.