Walkthrough: removing a protected tree for an access

A tree protected by an order can usually be removed for an access, but almost never by applying to remove the tree. The route that works runs through the planning permission, because works to a protected tree that are necessary to implement a full planning permission are exempt from the need for separate consent under the tree preservation regulations. Get the access permission right and the tree question answers itself. Apply to fell the tree first and you are asking the council to approve the loss of a tree for no stated planning purpose, which is the application they are most likely to refuse.

What follows is an illustrative walkthrough. The plot, the tree and the figures are composites, used to show the sequence rather than to report a real case.

The plot, the order and the access problem

A self-builder buys a long garden plot severed from a 1960s house in a suburban street, with planning permission in outline for a single dwelling. Frontage to the highway is 9 metres. Standing centrally on that frontage, about 2 metres inside the boundary, is a mature sycamore, roughly 18 metres tall with a stem diameter of 740mm at 1.5 metres above ground.

The whole frontage is covered by an area order made in the 1970s, which the council confirmed under section 198 of the Town and Country Planning Act 1990. The highway authority requires a 2.4 by 43 metre visibility splay in both directions and a driveway at least 3 metres wide with a 4.5 metre setback before any gate.

Put those two facts on the same drawing and the problem is visible. The driveway can only run to one side of the stem or the other. To the left there is 3.1 metres between the stem and the boundary. To the right there is 4.2 metres. Neither clears the tree's root protection area, which at that stem diameter works out at a radius of around 8.9 metres under the formula in BS 5837:2012, giving a protected area far wider than the plot frontage.

The separate consent for works to the tree

Before the exemption route was understood, the owner's first instinct was to apply for consent to fell. That application is made to the local planning authority on the prescribed form, carries no fee, and must be determined within eight weeks. The authority can refuse, grant, or grant subject to conditions including replacement planting, and there is a right of appeal to the Secretary of State against a refusal or against conditions.

The difficulty with going first is evidential. An application to fell is judged on the amenity value of the tree and the reasons given for the works. "To form a driveway" is a reason, but without a planning permission that requires the driveway in that position, the authority is being asked to accept the loss of a mature tree for a proposal it has not assessed. Refusal is the predictable outcome and the appeal is weak, because the inspector has nothing to weigh the amenity loss against.

Two other consent routes are worth distinguishing. A tree in a conservation area that is not covered by an order needs six weeks' written notice to the authority under section 211 rather than an application, during which the authority may make an order. And dead trees, and work urgently necessary to remove an immediate risk of serious harm, are exempt, with notice requirements attached. Neither applied here.

Alternatives tested before removal

The authority's arboricultural officer will expect to see that removal is a last resort, and an Arboricultural Impact Assessment prepared to BS 5837:2012 is where that work is set out. Five options were tested on the illustrative plot.

1. Access to the left of the stem, 3.1 metres wide, within the root protection area. Rejected: insufficient width for the highway standard once a 0.5 metre margin to the boundary fence was allowed.
2. Access to the right of the stem using a no-dig cellular confinement construction over the existing ground level. Technically the strongest option, and the one the officer wanted to see tested properly.
3. Crown reduction and lifting to allow the access beneath the canopy. Rejected: the obstruction was the stem and the roots, not the canopy.
4. A shared access with the retained house next door. Rejected: the severance had already been completed without a right of way, and the neighbour declined.
5. Relocating the access to the far side of the frontage. Rejected: the visibility splay to the right was obstructed by a bend and the highway authority would not accept it.

Option 2 ran a long way before it failed. The no-dig build-up would have raised finished levels by 350mm across the entry, which pushed the driveway gradient above the maximum the highway authority accepts at the back of footway and created a step at the threshold. A no-dig construction also still needs the trench for the service connections, and on this plot the only viable route for the water and electricity supplies crossed within 2 metres of the stem.

That is the honest shape of these cases. No-dig solutions work far more often than people assume and fail for reasons that have nothing to do with trees.

Arboricultural evidence on condition and value

With removal established as the only workable option, the assessment then had to say what was being lost.

The survey recorded the sycamore as category B under the BS 5837 classification, meaning a tree of moderate quality with an estimated remaining contribution of 20 years or more. Not category A, because the stem carried a historic pruning wound with associated decay at 3 metres and the crown had been reduced unsympathetically at some point. Not category C either, because the tree was healthy, well formed on the street side, and visible from a considerable distance along the road.

Amenity value was assessed on visibility from public vantage points, contribution to the character of the street, rarity, and condition. The assessment accepted that the loss was real and visible from the highway, and did not try to argue the tree was worthless. Arguing that a healthy mature tree has no amenity value is the fastest way to lose an arboricultural officer's confidence.

The assessment also recorded the trees being retained, the construction exclusion fencing, and a tree protection plan for the two smaller trees on the rear boundary, because an officer who sees the remaining trees properly protected reads the removal differently.

Replacement planting and the condition

Replacement was the part that moved the decision. The authority's position, consistent with its tree strategy, was that a mature canopy loss should be replaced by more than one tree, on the basis that several young trees take decades to deliver the canopy of one mature one.

The scheme offered three replacement trees: one large-canopy species in the front garden set well clear of the driveway and the services, and two in the rear garden, all at a stated nursery size with a specification for pit preparation, irrigation and a five-year maintenance and replacement commitment. Species were selected for the eventual crown spread the plot could hold, which avoided the usual outcome of a replacement tree that has to be removed in year 15.

The permission carried a condition requiring the replacement planting in the first planting season following occupation, with any tree that died, was removed or became seriously damaged within five years to be replaced with one of the same size and species. That five-year replacement wording is standard and repays careful reading, because it binds whoever owns the house, not the builder who planted them.

Timing the two applications

The sequence that worked, and the reason it worked:

1. A full application for the dwelling, showing the access, the visibility splay, the service routes, the finished levels and the tree to be removed, supported by the arboricultural assessment with the options appraisal and the replacement planting scheme.
2. Permission granted, with conditions covering tree protection for the retained trees and the replacement planting.
3. No separate application to fell. Because the tree works were necessary to implement a full planning permission, the exemption in the tree preservation regulations applied, and a written notification to the authority confirming reliance on the exemption was sent before the work.

The point to be careful about is that the exemption attaches to a full permission, not an outline one. The plot came with outline consent, which would not have supported the exemption. Had the builder started work on the strength of the outline permission, felling the tree would have been an offence under section 210, which carries an unlimited fine on conviction in the Crown Court, together with the duty to replace the tree.

Where there is any doubt about whether the permission is detailed enough, the safe course is to notify the authority in writing of the intention to rely on the exemption, describing the works and the permission, and to keep the acknowledgement.

The outcome and what it cost in programme

The dwelling was approved at 11 weeks from validation, three weeks beyond the statutory period, after an extension of time agreed to allow the arboricultural officer to comment on the no-dig testing. The tree was removed in the following winter, outside the bird nesting season, and the replacement planting went in during the first planting season after occupation.

The programme cost of doing it in the right order was about six weeks of additional survey and design work before submission. The programme cost of doing it in the wrong order, judging by how these cases usually run, would have been a refused tree application, an appeal of three to five months, and a planning application that still had to be made afterwards.

If you are in this position, commission the arboricultural survey before you draw the access, not after. The root protection area is a drawing constraint in exactly the same way as the visibility splay. The report index sets out which documents a single-dwelling application typically needs, and related walkthroughs include a conversion where contamination was found mid-build and a party wall notice that delayed a rear extension programme.

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.