Felling licence or tree preservation order consent

Choosing between a felling licence vs TPO consent is usually not a choice at all. The two regimes cover different trees. A felling licence from the Forestry Commission, under section 9 of the Forestry Act 1967, controls the felling of growing trees in woodland and on open land. Consent under a tree preservation order, made by the local planning authority under section 198 of the Town and Country Planning Act 1990, controls work to individual trees, groups and woodlands protected for their amenity value. A hedgerow oak in a field may need a licence. The same species in your garden needs TPO consent if an order covers it, and no licence at all.

The overlap is narrow. Getting the wrong one is still a criminal offence.

What a felling licence regulates

The licence regime exists to manage timber, not amenity. It applies to felling growing trees, which in practice means commercial and semi-commercial woodland, shelter belts, plantations and trees on agricultural land outside gardens and orchards.

Several categories sit outside it altogether. Trees in gardens, orchards, churchyards and public open spaces are excepted, as are fruit trees. So is felling that is immediately required to carry out development authorised by a planning permission, which is the exemption most development schemes rely on. That exemption is narrower than people assume, because it covers felling needed for the permitted works rather than general site tidying.

Felling for which no licence is needed still needs checking against everything else. A tree outside the licence regime can be protected by an order, sit in a conservation area, contain a bat roost or support nesting birds in the March to August season.

What a tree preservation order regulates

An order prohibits cutting down, topping, lopping, uprooting, wilful damage and wilful destruction without the authority's written consent. The Town and Country Planning (Tree Preservation) (England) Regulations 2012 set out the procedure, the form of application and the exceptions.

Those exceptions matter more day to day than the main prohibition. Work to a dead tree is allowed on five days' written notice to the authority, except in an emergency. Work needed to remove an immediate risk of serious harm is allowed, with notice as soon as practicable afterwards. Work required to comply with an Act of Parliament, or to abate a nuisance in the legal sense rather than the everyday sense, is also excepted. Each exception puts the burden of proof on the person who felled the tree, so photographs and an arboricultural report dated before the work are worth having.

Trees in a conservation area that are not covered by an order get a weaker form of protection under section 211 of the 1990 Act. You give the authority six weeks' notice of proposed work to any tree above 75 mm in diameter measured at 1.5 metres above ground level, and the authority can respond by making an order. The diameter figure rises to 100 mm where the work is thinning to help the growth of other trees.

The volume thresholds that trigger a licence

Four exemptions do most of the work in practice, and the volume one is the best known.

The 5 cubic metre allowance is per person per calendar quarter, not per woodland, and it resets on the quarter day rather than rolling. Two cubic metres is the ceiling on what can be sold out of that volume. For a rough sense of scale, a single mature broadleaf of any size will often exhaust the quarterly allowance on its own, so the exemption suits small thinning operations rather than any real felling programme.

Estimating volume is where disputes start. Measure standing volume properly, record the method, and keep the calculation. The Forestry Commission can ask.

Where both consents are needed

The statutory scheme is designed so that the two regimes do not run in parallel. Where the Forestry Commission grants a felling licence, the licence governs the felling and the order does not prevent it, and the Commission consults the local planning authority before granting a licence over trees subject to an order. Where the authority and the Commission disagree, the matter can be referred upwards rather than left for the owner to resolve.

That is the theory. The practical sequence is simpler than the law. Establish first whether the trees are protected, by asking the authority for a copy of any order and plan and checking whether the land sits in a conservation area. Then establish whether the felling needs a licence by reference to the exemptions above. Then approach whichever body has jurisdiction, and tell it about the other designation in the application rather than leaving it to be discovered.

A woodland TPO over a commercial plantation is the awkward case. It is also the one where an arboricultural assessment earns its fee, and a tree survey to BS 5837:2012 gives both bodies the same baseline of condition, categories and root protection areas to work from.

Restocking conditions against replacement duties

Both regimes can make you plant again, by different mechanisms.

A felling licence is commonly granted subject to restocking conditions specifying species, stocking density, protection and a maintenance period, with the Forestry Commission able to serve a restocking notice where felling has happened without a licence. The obligation runs with the land and can be enforced against a later owner.

Under the planning regime, section 206 of the 1990 Act imposes a duty to plant a replacement tree of appropriate size and species at the same place as soon as reasonably practicable, where a protected tree is removed, uprooted or destroyed in contravention of the order or because it was dead or presented an immediate risk. The order then applies to the replacement. For woodland subject to an order the duty is to replace the same number of trees, though not necessarily in the same position.

The practical difference is specification. Restocking conditions tend to be detailed and silvicultural. A replacement duty is often left vague until the authority writes to ask what you intend, which is a good moment to propose a landscape strategy that satisfies the duty and improves the holding at the same time.

Penalties compared

Felling without a licence, where one was required, is an offence under section 17 of the Forestry Act 1967, punishable by a fine set by reference to the standard scale or twice the value of the trees, whichever is the higher, with a restocking notice likely to follow.

Cutting down, uprooting or wilfully destroying a tree protected by an order, or damaging it in a way likely to destroy it, is an offence under section 210 of the 1990 Act and carries an unlimited fine on summary conviction in England. Lesser contraventions, such as unauthorised topping or lopping that does not destroy the tree, carry a lower maximum. Courts are directed to have regard to any financial benefit that has accrued or is likely to accrue from the offence, which is why development-driven felling attracts larger fines than careless tree surgery.

Verify the current penalty provisions before advising anyone, since the sentencing framework has been amended more than once.

Applying for both without duplication

Build one evidence pack and send the relevant parts to each body. The pack that serves both is short: a plan with the trees numbered, a schedule giving species, diameter, height and condition, a statement of why the work is needed, a standing volume calculation where a licence is in play, and an ecological check covering bats and nesting birds. A preliminary ecological appraisal answers the last of those and flags whether a licensed ecologist needs to be involved, which is a legal requirement rather than a preference where a bat roost is present.

Where the trees are shown as retained on an approved drawing, felling them also needs the permission changing, and our comparison of section 73 against section 96A sets out which route fits. Felling a retained tree without doing that is a breach of condition even if you hold the tree consent.

Enter your postcode on PlanScope to see which reports a site with protected or wooded land is likely to need.

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. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.