Replanting duties after removing a protected tree

Take down a tree protected by a Tree Preservation Order and, in most circumstances, you are legally obliged to plant another one in the same place. The duty sits in section 206 of the Town and Country Planning Act 1990, it lands on the landowner rather than on whoever wielded the saw, and it applies even where the removal itself was lawful because the tree was dead or dangerous.

That last point catches people out constantly. An exemption from needing consent is not an exemption from replanting.

Where the duty to replant comes from

Section 206 says that where a tree subject to a Tree Preservation Order is removed, uprooted or destroyed in contravention of the Order, or is removed under the exemption for a dead tree or one presenting an immediate risk of serious harm, the landowner must plant another tree of an appropriate size and species at the same place as soon as they reasonably can.

Three features of that wording matter in practice.

The duty attaches to the land, so it passes to a purchaser. Buy a garden with a stump in it and you may have inherited a planting obligation and the enforcement exposure that goes with it.

The replacement is automatically protected by the same Order under section 206(5), without the council needing to make a new one. Councils sometimes forget this and issue a fresh Order anyway, which is unnecessary but harmless.

And the council can dispense with the duty on written application. That is the route where replanting the same spot makes no sense, for example where the tree was three metres from a house and the replacement would repeat the problem. Ask before you decide not to plant, not afterwards.

Trees in conservation areas

A tree in a conservation area that is not already covered by an Order is protected by the section 211 notification regime instead. You give the council six weeks' written notice of the intended work, and they either make an Order, refuse to act, or let the period run out.

Section 213 applies the same replanting duty where such a tree is removed in contravention of section 211. So felling first and apologising later leaves you with both a potential prosecution and a duty to replant.

Where a conservation area tree is removed because it is dead or dangerous, the exemption applies but the section 213 duty does not follow in the same automatic way as it does for an Order tree. The position here is fiddly, and the council's tree officer is the right person to ask before work starts.

Conditions requiring replacement planting

Separately from the statutory duty, replacement planting appears in two other places.

Consent under a Tree Preservation Order can be granted subject to a condition requiring a replacement, using the powers in the Town and Country Planning (Tree Preservation) (England) Regulations 2012. The condition specifies what is planted and when.

Planning permission for development frequently carries a landscaping condition that includes replacement trees, with a clause requiring any tree that dies, is removed or becomes seriously damaged within five years to be replaced in the next planting season. Five years is the common period, though some authorities use three and a few use ten. Read the condition rather than assuming.

The two routes can overlap. A permission that authorises removal of a protected tree effectively displaces the section 206 duty for that tree, because removal is then authorised, and the replacement is controlled by the landscaping condition instead. Which document governs your replanting matters, because the enforcement routes differ.

Species, size and position

"Appropriate size and species" is not defined in the Act. In practice the tree officer decides, and the negotiation goes better when you arrive with a proposal.

Councils generally look for a tree that will reach a broadly similar scale in the location at maturity, planted at a size that establishes reliably. Standard or selected standard nursery stock, typically 10 to 14 centimetres girth, is the usual specification for a garden replacement. Heavy standards are asked for where the tree has amenity value from the street.

Position defaults to the same place. Where that is impossible, propose the nearest workable spot and explain the constraint with a plan. Underground services, the root protection area of a retained tree, and the shading of a neighbour's windows are all reasons a tree officer will accept.

Planting quality decides whether the tree survives. BS 8545:2014 covers trees from nursery to independence and is the standard to specify against: a pit dug to the right size, no circling roots, correct planting depth, stake and tie appropriate to the stock, and a watering regime for the first three growing seasons. A dead replacement is a replanting duty that has not been discharged. Where the replacement forms part of a wider scheme, the planting specification usually sits in the Landscape Strategy submitted with the application.

Tree replacement notices and how to comply

If the duty is not carried out, the council can serve a tree replacement notice under section 207. Two things about the timing are worth having in mind.

The notice must be served within four years of the date of the failure to comply with the duty. It requires the planting of a tree or trees of a specified size and species at a specified place, within a period the notice sets out.

Appeal lies to the Secretary of State under section 208, on grounds including that the duty does not apply, that the requirements are unreasonable, and that the place specified is unsuitable. The appeal must be made before the notice takes effect. Miss that and the notice bites.

If the notice is not complied with, section 209 lets the council enter the land, plant the tree itself, and recover its expenses from the landowner. Local authority planting costs are not modest, and the recovery includes officer time.

An illustrative example. A homeowner removes a protected sycamore that has been dropping limbs, believing the dangerous tree exemption covers everything. The council accepts the removal was exempt, then writes pointing out the section 206 duty. The homeowner proposes a small ornamental cherry. The tree officer asks for a field maple at 12 to 14 centimetres girth, on the basis that the amenity value lost was a large canopy tree. They settle on a hornbeam in a position two metres from the original stump, agreed in writing. Total cost around one afternoon of correspondence and a nursery invoice, against the several thousand pounds a contested notice and appeal would have run to.

When the evidence for removal is thin

The dead or dangerous exemption is narrower than most people assume. It requires the tree to be dead, or to present an immediate risk of serious harm. Not a future risk. Not a risk that could be managed by pruning.

Councils expect evidence recorded before the work: dated photographs, a written arboricultural opinion, and where possible five days' notice to the council for works under the immediate risk exemption. Where the tree was diseased rather than dangerous, the safer route is an application for consent, which the council must determine and which can be appealed.

Prosecution under section 210 is available where a protected tree is removed without consent, and the court is directed to have regard to any financial benefit that has accrued or is likely to accrue from the offence. A tree removed to improve a development plot is treated very differently from one removed by a confused householder.

Get the tree assessed properly before it comes down. A tree survey to BS 5837:2012 records the condition, category and root protection area of every tree on the site, and it is the document that shows a council you took the decision on evidence rather than on a hunch.

PlanScope drafts tree survey and landscape documents structured to UK planning policy, with a "to be confirmed" flag wherever site-specific measurements are missing, so a qualified arboriculturist can complete and check them. Councils expect a suitably qualified author for arboricultural work, 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. Enter your postcode to see which reports your site is likely to need.

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