Penalties for damaging or destroying a protected tree

A protected tree prosecution starts with a phone call from a neighbour and ends, often enough, with a landlord paying a fine that exceeds the value of the extra parking space the tree was in the way of. Section 210 of the Town and Country Planning Act 1990 makes it a criminal offence to cut down, uproot or wilfully destroy a tree protected by a Tree Preservation Order, or to damage, top or lop it in a manner likely to destroy it.

The point that catches investors is the sentencing provision. When the court fixes the fine it is required to have regard to any financial benefit which has accrued, or appears likely to accrue, as a result of the offence. Removing a tree that was blocking a development gives the court a figure to work with.

The two offences

The first is destruction: cutting down, uprooting or wilfully destroying. That is the straightforward case and the tree is gone.

The second is broader and less understood: damaging, topping or lopping in a manner likely to destroy the tree. The tree can still be standing. What matters is whether the work has left it unable to survive, and that is a question for arboricultural evidence rather than for the eye.

A third category, breaching a condition attached to consent for tree works or carrying out works not authorised by the consent given, is dealt with as a lesser offence with a lower maximum penalty.

Both of the main offences are triable in either the magistrates court or the Crown Court. Magistrates deal with most cases. Serious cases involving whole groups of trees, or where the benefit to the defendant was large, go up.

Damage that people do not recognise as damage

Most prosecutions for outright felling are straightforward. The ones that surprise developers involve construction activity.

Severing roots in a service trench across the rooting zone. Compacting the ground under the canopy with plant movements and material stacks. Raising or lowering levels within the root protection area. Washing out a concrete mixer over the roots. Storing diesel drums under a canopy. Scraping bark with a bucket.

Each of those can be enough where the arboricultural evidence shows the tree is unlikely to survive. The root protection area calculated under BS 5837:2012 is the practical boundary, and an Arboricultural Impact Assessment with a tree protection plan and a method statement is what keeps a site on the right side of the line. Councils expect a suitably qualified author for that work, and professional review is strongly advised.

Fencing is the single measure that prevents most of this. Protective fencing to the root protection area, erected before anything comes on site, inspected and photographed, and not moved without written approval.

Where the order came from, and whether it binds you

Orders are made by the local planning authority under section 198 of the 1990 Act, usually because a tree is under threat or because a planning application has drawn attention to it. A new order takes effect provisionally on the day it is made and has to be confirmed within six months after objections have been considered.

Two practical consequences for anyone buying property. A provisional order is in force, so the fact that it has not yet been confirmed is no defence. And orders are local land charges, so they show up on a search, which means a buyer who did not look cannot claim ignorance.

Check the order document itself rather than a council web map. The schedule tells you whether the protection is on an individual tree, a group, an area or a woodland, and the difference matters: area orders protect the trees present when the order was made, so a self-seeded sycamore that arrived afterwards is not covered.

How a council builds the case

Tree officers are methodical about this and the evidence is usually better than defendants expect.

They photograph the stump and the site. They count and measure the rings, which dates the felling and sizes the tree. They take samples where the species is in doubt. They obtain aerial and street level imagery from before and after, which is now easy to date. They interview neighbours, who often photographed the work as it happened. And they take a statement from the contractor, who in many cases had no idea the tree was protected and says so.

They also check the order itself, because a defective order is the most common reason a prosecution fails. That means confirming the tree is within the schedule, that the map identifies it, and that the order was properly made and served.

If you are the one facing an allegation, get an arboriculturist involved immediately and preserve the stump. Once it is ground out, the evidence that would have shown the tree was already dead or dying goes with it.

Exemptions, and how narrow they are

An order does not prevent the cutting down of a tree that is dead, or works to it, nor work that is urgently necessary in the interests of safety, nor work required to comply with an obligation under an Act.

Three cautions.

The safety exemption is about urgency and immediacy. A tree with a structural defect that could safely wait a month is not urgent. The exemption covers the minimum work needed to remove the immediate risk, not the removal of the whole tree where a limb was the problem.

Notice is still required. For dead trees the regulations require five working days' notice before work starts, except in an emergency, where notice must be given as soon as practicable afterwards. Skipping the notice is itself a breach.

The burden of establishing the exemption falls on the person relying on it. That means evidence gathered before the work: dated photographs, a written arboricultural opinion, a decay detection report where the defect is internal.

"The neighbour said it was dangerous" is not evidence. Nor is a quotation from a tree surgeon offering to remove a dangerous tree.

Replanting, and why it follows the land

Section 206 imposes a duty on the landowner to replace a tree removed, uprooted or destroyed in contravention of an order, with a tree of appropriate size and species at the same place, as soon as reasonably possible. The council can dispense with the requirement, and often will where replanting in the same position makes no sense.

Two features matter for an investor. The duty attaches to the land, so it passes to a purchaser who had nothing to do with the offence. And the council can enforce it by serving a tree replacement notice, appealable to the Secretary of State, with the ability to carry out the work and recover the cost if it is not complied with.

That is why tree offences show up in conveyancing enquiries and why a buyer's solicitor should ask about them directly. A fine is a one-off. A replanting duty plus a new order on the replacement tree is a permanent constraint on the plot.

Where a scheme does need a tree removed, the route is an application to the council for consent under the order, supported by arboricultural evidence and, where the loss matters, a Landscape Strategy showing replacement planting. Refusal can be appealed and compensation is available in limited circumstances. Drafts of that evidence can be sent to a qualified reviewer before submission.

Doing the work and paying the fine is not a strategy. The court is told what you gained.

This is general guidance rather than legal advice. Check the position with your local planning authority or a qualified professional before relying on it. To see what tree and landscape evidence a site is likely to need, check a site for tree constraints.

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