Replacement tree conditions and the duty to replant
Removing a protected tree creates an automatic duty to replant, even where the felling was lawful because the tree was dead or dangerous. How the notice, appeal and dispensation routes work.
Cut down a protected tree and you may owe the council a new one, whether or not anyone is prosecuted. The duty to replace protected tree planting sits in section 206 of the Town and Country Planning Act 1990, and it arises automatically in two situations: where the tree was removed in breach of the Tree Preservation Order, and where it was removed lawfully because it was dead or presented an immediate risk of serious harm. The second one surprises almost everybody.
The duty is separate from the criminal offence. You can comply with one and still be liable under the other.
When the duty to replant arises automatically
Section 206 applies where a tree subject to a Tree Preservation Order, other than one covered as part of a woodland, is removed, uprooted or destroyed in contravention of the Order, or is removed, uprooted or destroyed because it was dead or posed an immediate risk of serious harm.
So the exemption that let you fell the tree without consent does not exempt you from replacing it. The owner of the land must plant another tree of an appropriate size and species at the same place, as soon as reasonably practicable.
The replacement then falls under the same Order as the tree it replaces. That is automatic, so a newly planted replacement is protected from the day it goes in without any new Order being made.
Woodlands work differently. Where the Order covers a woodland, the replanting is on the same land or on land agreed with the authority, and the size and species are agreed rather than matched.
Conservation areas pull in the same direction. Trees in a conservation area are subject to the six-week notice procedure, and where a tree is removed in contravention of that requirement, the replacement duty applies in the same way as for a tree under an Order.
What the duty requires in size, species and position
The statutory words are a tree of an appropriate size and species, at the same place. Each of those three elements is negotiable in practice, and all three should be settled in writing with the tree officer rather than assumed.
Appropriate size usually means nursery stock rather than a sapling, and the council will often specify a girth or a stock category drawn from nursery stock standards. Published guidance on establishing trees in the landscape sets out how stock size affects establishment, and larger is not always better, because a heavy standard needs more aftercare than an extra heavy whip.
Appropriate species is not always the same species. Where the original tree failed because of disease, or was a species now considered unsuitable for the position, a different species is sensible and the authority can agree it.
The same place causes most of the argument. Where the original tree was too close to a building, or where a new drainage run occupies the position, planting in the identical spot is unwise. Agree an alternative position and record the agreement, because the duty as drafted points at the original location.
| Element | Statutory wording | What is negotiable |
|---|---|---|
| Size | Appropriate size | Stock category and girth, agreed with the authority |
| Species | Appropriate species | A different species where justified |
| Position | The same place | An agreed alternative position |
| Timing | As soon as reasonably practicable | The planting season, usually the next one |
Replacement conditions imposed on a consent
A replacement condition on a planning permission is a different mechanism from the section 206 duty, and the two can run alongside each other.
Landscape conditions on a consent typically require a planting scheme to be submitted and approved, then implemented in the first planting season after completion, with a clause requiring any tree that dies, is removed or becomes seriously damaged within five years to be replaced in the following planting season with one of the same size and species.
That five-year clause is the one people forget. It runs from planting rather than from the permission, and it is enforceable as a condition, which gives the council a far simpler route than a tree replacement notice.
The specification detail that makes or breaks the planting is covered in tree planting conditions, species, stock size and establishment, and getting the specification agreed before planting is cheaper than replacing stock that fails.
Enforcing the duty by notice
Where it appears to the authority that the section 206 duty has not been complied with, it may serve a tree replacement notice under section 207. The notice specifies the size and species of tree to be planted and the period within which planting must happen.
There is a time limit on the authority. The notice must be served within four years from the date of the failure to comply with the duty, which in practice means four years from the point at which replanting ought reasonably to have happened.
If the notice is not complied with, section 209 allows the authority to enter the land, plant the tree itself and recover its reasonable expenses from the owner. That is a real power rather than a theoretical one, and the recoverable costs include the council's own labour.
The criminal side is separate. Contravening a Tree Preservation Order by cutting down, uprooting, topping, lopping or wilfully destroying a protected tree is an offence under section 210, with a substantial fine on summary conviction and an unlimited fine on indictment where the tree is destroyed. Prosecution and the replanting duty are not alternatives.
Appealing a tree replacement notice
An appeal lies to the Secretary of State under section 208, and it has to be made before the notice takes effect.
The grounds available include that the duty does not apply or should be dispensed with, that the requirements of the notice are unreasonable in respect of the size or species specified or the time allowed, and that planting the tree is not required in the interests of amenity or would be contrary to the practice of good forestry.
Appeals of this kind usually turn on the position and the specification rather than on the principle. If the dispute is about planting a heavy standard oak two metres from a house wall, say so with an arboricultural opinion attached rather than arguing the duty itself.
The appeal suspends the notice, which matters where the planting season is about to close.
Where the duty can be dispensed with
Section 206 allows the authority to dispense with the duty, and that is the route to take where replanting is clearly inappropriate.
Grounds that persuade authorities: the original tree was in a position that caused structural damage, the position is now occupied by permitted development, the species was inappropriate and no suitable alternative fits the space, the site is to be redeveloped under an extant permission that includes a landscape scheme, or replanting would conflict with good arboricultural practice.
Apply in writing, with an arboricultural assessment, before the planting season passes. A request made two years after the tree came down, with no explanation of the delay, is a weaker application than the same request made promptly.
Where the position relates to a woodland, felling licence obligations may also be in play, and the interaction is set out in woodland orders and felling licences and how they interact.
Keeping the replacement alive
The duty is to plant, and the condition is usually to maintain. Both fail at the same point, which is the second summer.
Five things that decide whether a replacement establishes.
- Plant in the dormant season for bare-root and rootballed stock, and water through the first two growing seasons rather than the first.
- Match stock size to the aftercare available, since a smaller tree with good watering beats a heavy standard without.
- Clear a weed-free circle around the stem and mulch it, because grass competition kills more young trees than drought.
- Stake low and loosely, and remove the stake and tie within two or three years.
- Record the planting with dated photographs, the nursery invoice and the species and stock size, then send it to the tree officer unprompted.
That last point closes the file. A council that has evidence of compliance stops looking, and the record is what protects you if the tree later fails for reasons outside your control.
An up-to-date Tree Survey to the relevant British Standard is the document that underpins all of this, and a Landscape Strategy is what carries replacement planting into a wider scheme. Where a protection condition is holding up a start on site, the practical route through it is set out in discharging a tree protection condition without delay.
To see which tree and landscape documents your project is likely to need, enter your postcode on PlanScope and work through the guided questions. Councils usually expect a suitably qualified arboriculturist, and professional review is strongly advised.
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.
Frequently asked questions
Do I have to replace a protected tree I removed because it was dead?
Yes. Section 206 of the Town and Country Planning Act 1990 applies both where a protected tree is removed in contravention of the Order and where it is removed because it was dead or presented an immediate risk of serious harm. The exemption that allowed the felling does not remove the duty to replant.
Is the replacement tree automatically protected?
Yes. A tree planted under the section 206 duty becomes subject to the same Tree Preservation Order as the tree it replaced, without the authority needing to make a new Order. That applies from the moment of planting, so consent is needed for later works to the replacement in the usual way.
Can the replacement be a different species or position?
In practice yes, with the authority's agreement. The statute requires an appropriate size and species at the same place, but a different species is sensible where the original failed through disease or was unsuitable, and an alternative position is often necessary. Record the agreement in writing with the tree officer.
How long does the council have to serve a replacement notice?
A tree replacement notice under section 207 must be served within four years from the date of the failure to comply with the duty, which in practice runs from the point at which replanting should reasonably have happened. If the notice is not complied with, the authority may plant the tree and recover its costs.
How do I appeal a tree replacement notice?
Appeal to the Secretary of State under section 208 before the notice takes effect, which suspends it. Grounds include that the duty does not apply or should be dispensed with, that the size, species or time allowed are unreasonable, and that planting is not required in the interests of amenity.
Can the duty be dispensed with altogether?
Yes, the authority may dispense with it. Persuasive grounds include the original position causing structural damage, the space no longer suiting any appropriate species, the site being redeveloped under a permission with its own landscape scheme, or replanting conflicting with good arboricultural practice. Apply promptly, with an arboricultural assessment.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.