Prosecution for unauthorised works to a protected tree

Cutting down a tree protected by a Tree Preservation Order without consent is a criminal offence under section 210 of the Town and Country Planning Act 1990, and the fine on conviction is unlimited. The court is also directed to have regard to any financial benefit that has come or is likely to come from the offence, which is why prosecutions of developers sometimes produce penalties far larger than the cost of the tree. Not knowing the Order existed is no answer.

The same penalties apply to trees in a conservation area where the six week notice under section 211 was not given.

The offences created by the legislation

Section 210 creates two tiers.

The serious offence, in section 210(1), is committed by anyone who cuts down, uproots or wilfully destroys a protected tree, or who tops, lops or wilfully damages it in a way likely to destroy it. That offence is triable either way, so it can be dealt with in the magistrates court or the Crown Court, and the fine is unlimited in both.

The lesser offence, in section 210(4), covers any other contravention of an Order, such as pruning beyond what was consented. It is a summary offence with a fine on the standard scale.

Section 211 requires six weeks written notice to the local planning authority before works to a tree in a conservation area that is not already covered by an Order. Carrying out the works without giving that notice, or before the six weeks expire, is punishable as if it were a contravention of an Order.

Sentencing is where the two tiers separate in practice. Section 210(3) directs the court to have particular regard to any financial benefit accruing or likely to accrue in consequence of the offence. On a development site, that benefit can be the uplift in value from a layout that the tree would have prevented.

Destruction as distinct from damage

The wording matters, because the prosecution has to prove the right thing.

Cutting down and uprooting are physical acts and are usually straightforward to establish. Wilful destruction requires intention or recklessness, and destruction means the tree is no longer a viable tree rather than that it has been disfigured. Topping and lopping are caught where the work is done in a manner likely to destroy the tree, which is how severe reduction cases are prosecuted even though the stem is still standing.

Indirect destruction counts. Severing the root plate during excavation, compacting the rooting area with plant, raising ground levels over the roots, storing materials or spoil within the root protection area, and spillage of diesel or cement washings into the soil have all killed protected trees on building sites. Where the damage is deliberate or reckless and the tree dies, the offence is made out even though nobody touched the crown.

This is why the tree protection condition on a permission matters. Discharging the tree protection condition promptly and then actually installing the fencing is the difference between a routine site and a prosecution.

Who can be prosecuted, including contractors

Liability reaches well beyond the landowner.

The person who carries out the works commits the offence. So does a person who causes or permits them. That reaches the landowner who instructed the work, the developer who wrote the programme, the site manager who allowed the machine into the root protection area, and the tree contractor who took the saw to the stem.

Contractors are prosecuted regularly, and the defence that a client said there was no Order rarely helps. Any competent arboricultural contractor is expected to check with the council before working on a mature tree, and the check takes minutes. Specifying crown work properly, with the consent reference and the permitted works written into the instruction, protects both sides.

Companies can be prosecuted as well as individuals, and a director can be liable where the offence was committed with their consent or connivance.

Penalties and the separate financial picture

An unlimited fine is the headline, and it has been the position on summary conviction since the cap on level 5 fines was removed in 2015.

Three other financial consequences follow. Costs are normally awarded to the prosecuting authority. Confiscation under proceeds of crime legislation has been pursued where a defendant obtained a benefit from the offence. And the replanting duty below imposes a real cost on top of the fine.

Prosecution is not the only route. Councils sometimes accept a written undertaking with replanting where the harm was accidental and was reported promptly. Self reporting on the day is treated very differently from a tree that quietly disappears over a bank holiday weekend.

Defences and how narrow they are

The exemptions in the 2012 Regulations are the practical defences, and they are tightly drawn.

• A dead tree may be removed. The burden then sits with the person who removed it to show it was dead at the time.
• A tree that presents an urgent risk may be dealt with to the extent needed to remove the danger, with written notice to the authority as soon as practicable. Where the tree is dangerous without the danger being immediate, five days written notice is required first.
• Works required to implement a full planning permission are exempt, limited to the works necessary to implement it. Outline permission does not carry the exemption.
• Statutory undertakers have limited exemptions for operational work.
• Abatement of a nuisance recognised at law is exempt, which is narrower than a neighbour being annoyed.

Photograph everything before you rely on any of these. A claim that a tree was dead, or dangerous, with no dated photographs and no arboricultural opinion, is a claim the court will not accept. Where trees are close to drains or foundations, an assumption of damage is not an exemption, and the position on root ingress and soakaways needs evidence rather than inference.

The separate duty to replant

Section 206 places a duty on the landowner to replace a protected tree that has been 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 practicable.

The duty arises automatically. It does not depend on a prosecution, it does not depend on who did the work, and it attaches to the land, so it passes to a purchaser. A council can enforce it with a tree replacement notice under section 207, which must be served within four years of the failure to comply, and there is a right of appeal under section 208.

Replacement specification is negotiated in practice, and the authority will usually want something substantial rather than a whip. Where the original was a mature specimen, expect a discussion about multiple replacements or a larger nursery stock size, and see tree planting conditions on species, stock size and establishment for what a defensible specification looks like.

How councils gather evidence

Tree officers build these cases methodically, and the material is usually better than defendants expect.

The council will already hold the Order, the plan, the service records and any consent correspondence. To that it adds dated aerial imagery and street level imagery showing the tree before and after, site photographs, stump measurements and growth ring counts to establish age, an arboricultural assessment of whether the tree was viable, neighbour witness statements with dates and times, contractor invoices and waste transfer notes obtained on request, and sometimes the applicant's own planning drawings showing the tree in the position where the stump now sits.

Time limits favour the authority. There is no six month limit on prosecuting the either way offence under section 210(1), so a case can be brought long after the event, and the replacement duty runs for four years from the breach.

An illustrative example: a mature oak under an Order on a plot sold with outline permission. The new owner clears the site before the reserved matters are approved, relying on a belief that permission allowed it. Outline permission carries no exemption. The stump is measured, ring counted and photographed, the arboricultural report puts the tree in good condition, and the council prosecutes and serves a replacement notice requiring three specimens of stated stock size. The fine reflects the plot value released by removing the constraint.

If you are planning development on a site with protected trees, get the arboricultural position established before anything moves. PlanScope can draft the tree survey narrative from your site details, structured to UK planning policy and flagging what a qualified arboriculturist has to measure on site.

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.