Provisional orders and the six month confirmation period

A new Tree Preservation Order protects the trees from the day it is made. It does not wait for consultation, an objection period or a committee. Under the Town and Country Planning (Tree Preservation)(England) Regulations 2012 the order takes provisional effect immediately and stays in force for six months from that date, or until the authority confirms it, whichever comes first. Cut the tree down in week two and the offence is the same as it would be after confirmation.

The six month limit is the other half of the bargain. If the authority does not confirm the order within that window, it lapses, and the trees lose the protection unless a fresh order is made.

What a new order does on the day it is made

Service and publicity follow the making of the order rather than preceding it. The authority must, as soon as practicable, serve a copy on the owners and occupiers of the land and on others with an interest in it, make the order available for public inspection, and set a period of at least 28 days for objections and representations.

What arrives through the letterbox is the order itself, a plan showing the trees, a notice explaining the effect and a statement of the reasons for making it. Read the plan carefully. Orders are made in four forms: individual trees, groups of trees, woodlands, and areas, and the form affects what is protected. An area order protects the trees standing within the mapped area at the date the order was made, which is a different and narrower thing than it looks.

Check the schedule against what is on the ground, with photographs, in the first fortnight. Disputes about which trees were in an order are much easier to resolve at this stage than three years later.

The six month window for confirmation

Six months from the date of the order, and the clock does not stop for the objection period or for committee cycles.

Most authorities confirm within that period as a matter of routine. Where they do not, the usual reasons are staff turnover in the tree team, a contested objection that needs a committee date, or a complex case where the arboricultural evidence is being reviewed. An order that lapses can be remade, but the authority has to go through the whole process again and cannot backdate the protection.

For an owner, the practical point is that the window exists. Knowing the date the order was made, and therefore the date it expires, tells you how long the position remains unsettled and whether the authority is running out of time to deal with your objection properly.

Making representations and what persuades

Objections must be in writing, within the stated period, and must identify the trees and give the reasons. A letter saying the tree is inconvenient will not succeed.

What carries weight:

• An arboricultural report on the condition of the tree, its structural integrity, its remaining life expectancy and its suitability for the position.
• Evidence on amenity value: how visible the tree is from public vantage points, whether it contributes to the character of the area, and whether equivalent trees nearby already provide that contribution.
• Evidence of actual damage, such as a structural engineer's report linking subsidence to the tree with monitoring data, rather than an assertion that roots are to blame.
• A proposed alternative: crown reduction, a management programme, or replacement planting of a more suitable species in a better position.
• Factual corrections, such as a tree included in the schedule that stands on land the authority has misattributed, or a tree already dead when the order was made.

What fails: nuisance from leaves, berries, honeydew, shading of a lawn, blocked light to a conservatory, interference with a satellite signal, and a general preference for a smaller tree. Authorities hear all of these constantly and the published guidance treats them as weak.

Submit an arboricultural report rather than a letter if the trees matter to your plans. The approach to presenting that kind of material is the same one used in arboricultural evidence at appeal, and a report prepared properly now can be reused later.

How the authority decides whether to confirm

The test is amenity. The authority has to be satisfied that it is expedient in the interests of amenity to make provision for the preservation of the trees, and officers commonly use a structured scoring method covering visibility from public places, individual and collective amenity value, condition, suitability to the setting and expected longevity.

The decision is usually delegated to officers, with committee referral where objections are substantial or the case is contentious. The authority must consider the objections and representations it received, and the decision notice should explain how they were addressed. Where it does not, ask, because an unreasoned decision on a contested order is a weak decision.

A tree officer's site note carries real weight, and your report should engage with it rather than ignore it. Request a copy at the start.

Modified orders on confirmation

An order can be confirmed with modifications. In practice that means narrowing it: removing trees from the schedule, reclassifying a group as individual trees, correcting a plan, or adjusting the boundary of a woodland or area.

Modification cannot be used to extend protection to trees that were not in the order as made. If the authority decides, during the objection period, that an adjoining tree also warrants protection, it needs a new order for that tree with its own provisional period and its own consultation.

A partial objection is therefore a realistic strategy. An objection seeking the removal of two trees from a schedule of eleven, with an arboricultural report on those two, has a better prospect than an objection to the whole order.

Works during the provisional period

The order has full effect, so cutting down, topping, lopping, uprooting or wilfully damaging a protected tree without consent is an offence under section 210 of the Town and Country Planning Act 1990, with an unlimited fine available on conviction on indictment and a statutory direction to the court to consider any financial benefit from the offence.

The exceptions in the 2012 Regulations are narrower than people assume:

1. Cutting down a dead tree is exempt, but at least five working days' notice must be given to the authority before the work, except in an emergency.
2. Urgent works to remove an immediate risk of serious harm are exempt, with notice to the authority as soon as practicable after the works.
3. Works required by an Act of Parliament, or by a statutory undertaker in specified circumstances, are exempt.
4. Works to implement a full planning permission are exempt in defined circumstances, which is a narrower exemption than most applicants expect and often produces a clash between a condition and the order, as planning condition and TPO consent conflict explains.
5. Fruit tree cultivation and certain other horticultural operations are exempt in defined cases.

"Dead" is the test for the first exemption, not dying and not dangerous, which changed with the 2012 Regulations. Photograph the tree, keep the arboricultural assessment that reached the conclusion, and serve the notice. An owner who removes a tree they considered dead without the assessment and the notice has no useful defence.

What happens if the order lapses

Protection ends. And the trees are then in the same position as any unprotected tree, unless the land is in a conservation area, in which case the separate requirement to give the authority six weeks notice before works continues to apply under section 211 of the 1990 Act.

An authority can make a new order over the same trees, and often does once it notices. There is nothing to stop it, and a lapse is not a determination that the trees lack amenity value.

Limited compensation provisions exist in the Regulations for loss or damage caused by a refusal of consent or by conditions attached to a consent, with time limits and significant exceptions, so take advice before assuming a claim is available.

If your project depends on the trees, the better route is to commission a tree survey to BS 5837:2012, design around the retained trees, and apply for consent for the works you need with the arboricultural case attached. A scheme that waits for an order to lapse is a scheme with no timetable.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it.

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