Penalties for breaching a Tree Preservation Order

Section 210 of the Town and Country Planning Act 1990 creates two offences of very different weight. Cutting down, uprooting or wilfully destroying a protected tree, or damaging, topping or lopping it in a way likely to destroy it, is the serious one, triable either way, with an unlimited fine on conviction on indictment. Any other contravention of a tree preservation order is a summary offence with a fine at level 4 on the standard scale.

For a landlord or investor the practical exposure is larger than the headline figure, because the court is directed to have regard to the financial benefit obtained, and because a prosecution sits alongside the separate duty to replant.

The two offences and how they differ

The serious offence under section 210(1) is committed by any person who, in contravention of a tree preservation order, cuts down, uproots or wilfully destroys a tree, or who wilfully damages, tops or lops it in a manner likely to destroy it.

The lesser offence under section 210(4) catches contraventions of other provisions of an order. That covers things like carrying out works beyond what a consent permitted, or breaching a condition attached to consent, where the tree survives.

The same penalties apply to trees in conservation areas that are not separately protected. Section 211 requires six weeks' written notice to the local planning authority before cutting down, topping or lopping such a tree, and felling without that notice is an offence.

The summary maximum for the serious offence was historically capped, and that cap was removed for offences committed in England from March 2015. Check the current text on legislation.gov.uk before quoting a figure, because fine levels have moved.

Destruction without felling

The offence does not require a tree to be cut down. Wilful damage, or topping and lopping carried out in a manner likely to destroy the tree, is enough, and this is where most development-related prosecutions come from.

Severing roots inside the root protection area during an excavation. Compaction of the rooting zone by plant and stored materials. Storage of cement or fuel within the canopy spread. A crown reduction taken so far that the tree cannot recover. Each of these can destroy a tree as effectively as a chainsaw, and the word wilful attaches to the act rather than to an intention to kill the tree.

That is why tree protection on a construction site is a legal matter as much as a good practice one. A barrier specification drawn up under BS 5837 and installed before any plant arrives is the evidence that the works were controlled, and tree protection barrier specification under BS 5837 sets out what that specification has to contain.

How courts treat financial benefit

Section 210(3) directs the court, in determining the amount of a fine for the serious offence, to have particular regard to any financial benefit that has accrued or appears likely to accrue to the defendant in consequence of the offence.

That provision changes the arithmetic entirely. Where a tree stood in the position of a proposed dwelling, or its removal opened a view that raises the value of a plot, the benefit is the relevant measure rather than the replacement cost of the tree. A developer who removes an inconvenient oak is not fined the price of a semi-mature replacement.

Prosecuting authorities also have confiscation powers available under the Proceeds of Crime Act 2002 where a benefit has been obtained from criminal conduct, and those proceedings can reach sums well beyond any fine. That route is used sparingly, but it exists, and it is one reason the calculation of removing a protected tree and accepting the penalty is a poor one.

Mitigation that carries weight is the usual kind: an early guilty plea, prompt reporting, cooperation with the tree officer and a replacement scheme offered and delivered rather than promised.

Who can be prosecuted

Section 210 applies to any person, which is wider than the landowner.

The contractor who did the work can be prosecuted, and so can the person who instructed it. A tree surgeon who fells a protected tree on instruction has committed the offence, and "the client told me it was not protected" is not a defence, because checking the status is a straightforward enquiry to the council.

Companies can be prosecuted, and where an offence by a body corporate is proved to have been committed with the consent or connivance of a director, manager or similar officer, or to be attributable to their neglect, that individual can also be prosecuted. Site managers and development managers are therefore personally exposed.

The exemptions in the legislation and the Tree Preservation Regulations are narrow and the burden of establishing one falls on the defendant. Dead trees and trees presenting an immediate risk of serious harm are exempt, but "dying" is no longer part of the exemption, notice has to be given to the authority before the work except in a genuine emergency, and the replacement duty usually still applies. An arboricultural report obtained before the work, not after it, is what makes the exemption arguable.

Time limits for bringing a prosecution

Because the section 210(1) offence is triable either way, the six month limit in section 127 of the Magistrates' Courts Act 1980 that applies to summary only offences does not restrict it. A prosecution can be brought long after the event, which matters where a tree's death takes two or three seasons to become obvious after root damage.

The section 210(4) offence is summary only, so the six month period does apply to it, and authorities occasionally lose the lesser charge on timing while proceeding with the serious one.

Separately, the replacement duty under section 206 runs on its own timetable, with a tree replacement notice available for four years from the failure to comply. Prosecution and replacement are independent. Paying a fine does not discharge the duty to replant, and complying with the duty does not prevent a prosecution.

Insurance, indemnities and who actually pays

Fines are not insurable. Public policy prevents an insurer indemnifying a defendant against a criminal penalty, so no policy will meet the fine itself.

What may be covered is the civil consequence: the cost of replacement planting, a claim by a client against a contractor, and legal defence costs in some policies. A tree surgeon's professional indemnity and public liability cover should be checked for both, and for whether the policy excludes deliberate acts.

Contractual allocation is where the real protection sits. A contract that requires the contractor to verify tree protection status before starting, to work to the approved arboricultural method statement, and to indemnify the employer against losses from unauthorised works puts the risk with the party best placed to manage it. Include the arboricultural method statement and the protection drawing as contract documents rather than as background information.

Reducing exposure before the saw comes out

The checks are quick and the failure to do them is rarely forgiven.

1. Ask the council in writing whether any tree on or adjacent to the site is subject to an order, and whether the site is in a conservation area. Keep the reply.
2. Obtain a tree survey to BS 5837 that identifies every tree, its category, its root protection area and its protected status, before the layout is fixed.
3. Apply for consent where works are proposed, or serve the section 211 notice in a conservation area and wait the full six weeks.
4. Install protective fencing to the approved specification before any plant arrives on site, and photograph it in position with a dated record.
5. Appoint an arboricultural consultant to monitor and record, because an arboricultural site monitoring record is the document that shows the works were supervised.
6. Brief every contractor and subcontractor in writing, including groundworkers and service providers, since trench excavation for drainage and utilities causes more root damage than felling does.

If a breach has already happened, report it, take arboricultural advice immediately and put a replacement scheme forward. The interaction with replacement planting conditions after tree loss is usually the practical route back to a workable position.

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

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.