Street trees, highway works and the section 278 process

A street tree standing in the adopted highway belongs to the highway authority, and removing it is a decision for that authority as landowner rather than for the planning case officer. Developers discover this when an access design that satisfied the planning committee runs straight through a lime the county council has no intention of losing. The consent you need sits in the section 278 agreement, not in the planning permission, and it is negotiated with a different team on a different timetable.

Who owns and controls a highway tree

Trees growing within the adopted highway, in the verge, in the footway or in a build-out, are generally vested in the highway authority along with the highway itself. The authority has powers to plant and maintain trees on the highway under the Highways Act 1980, and a frontager who wants to plant one needs the authority's licence.

Two consequences follow. A Tree Preservation Order is largely irrelevant to a highway tree, because an authority cannot sensibly enforce an Order against itself, so the protection comes from the authority's own tree policy rather than from the Order regime. And a developer has no right to touch a highway tree at all, whatever the planning permission says, because the permission does not convey any interest in land the applicant does not own.

Where the ownership line is unclear, and on older estates it frequently is, get it resolved early from the highway extent plan rather than from the apparent boundary. The issues in our note on boundary trees and shared ownership apply equally here.

Consent needed for works to highway trees

There is no application form. The route is a written request to the highway authority's arboricultural officer, usually as part of the section 278 technical submission, setting out which trees are affected, what is proposed and why.

Expect to justify the loss against alternatives. The authority will ask whether the access can be moved, whether the visibility splay can be achieved with a lower hedge instead, whether a no-dig construction within the root protection area could retain the tree, and whether the scheme could take vehicular access from another frontage altogether. Those questions come easier if the tree survey covers the highway trees as well as those on the application site, with root protection areas plotted on the access drawing.

Where a highway tree also sits in a conservation area, the position on notification is a technicality the authority will resolve, but the practical point is that the conservation officer's view will be sought and will carry weight.

Replacement policies and commuted sums

Most highway authorities now operate a replacement policy requiring one or more new trees for each one lost, with the ratio set by the size or amenity value of the removed tree. Some use a valuation method to arrive at a compensation figure instead, or in addition.

On top of replacement, expect a commuted sum covering establishment and maintenance of the new tree for a defined period, commonly the first few years when watering determines whether it survives. Rates are published by many authorities and vary widely. Take the current figure from the authority rather than from a previous scheme.

Two negotiating points are worth raising. First, whether replacement can be delivered on the development site rather than in the highway, which is often better for the tree and costs less to establish, though authorities sometimes want the street to be replanted. Second, whether a larger specimen with a longer establishment period is acceptable in place of a greater number of small ones.

Tree pits, soil volume and services

The reason street trees die young is almost always the pit. A tree planted into a small volume of compacted subsoil beneath a footway, hemmed in by services, has no prospect of reaching maturity, and replacing it in ten years is a cost somebody will carry.

Design the rooting volume against the canopy the tree is expected to reach, not against the space available. Structural soils, modular root cells and continuous trenches linking several pits under the footway all work, and all cost more than a hole. Provide irrigation and aeration, and specify a maintenance regime for the establishment period.

Services are the constraint nobody solves on paper. Statutory undertakers have apparatus under every footway, and the industry guidance on working near trees sets out minimum separations that are difficult to achieve in a standard verge. Involve the utility companies during the section 278 design rather than at the point of excavation, because a diversion discovered on site changes the programme.

Designing an access around a retained street tree

Where the tree is staying, the design has to work within the root protection area. Practical techniques are well established: a no-dig cellular confinement construction for the crossing, a shared surface that avoids kerb upstands over roots, hand digging within the protection area under arboricultural supervision, and repositioning the access a few metres to cut the incursion.

The visibility splay is the usual sticking point, because a splay measured to the standard will often pass through a canopy. Crown lifting the tree to give clearance above driver eye height solves many of these, and that is a far easier conversation than removal. Where the splay cannot be achieved, an authority may accept a relaxation supported by a road safety assessment, though that is a judgement for the highway engineer.

Record the agreed protection measures on a plan and tie them into the construction phase, because most damage to retained trees happens after the drawings are signed off. The approach in our note on long-term tree management secured by agreement applies to street trees held by a management company as well.

Community reaction and how to manage it

Street trees generate more objection than almost anything else of comparable scale. People who never comment on a planning application will write about a tree outside their house, and the sequence when a chainsaw appears without warning is predictable and avoidable.

What works is telling people first. A letter to the affected frontagers explaining which tree is going, why, what is replacing it and when, sent before the application is determined rather than after, removes most of the heat. What does not work is felling early on a Saturday.

Where the loss is significant, offer something visible in return: additional planting along the frontage, a landscape strategy for the wider street, or a contribution to planting elsewhere in the ward. Members respond to that, and members are who the objectors write to.

Securing the arrangements in the agreement

The section 278 agreement is where all of this lands. It should schedule the trees to be removed, the replacement planting with species, size and positions, the establishment and maintenance obligations with their period, the commuted sum and its payment trigger, and the protection measures for retained trees with the supervision regime.

Add a defects arrangement for the planting. A replacement tree that dies in its second summer should be replaced at the developer's cost, and saying so in the agreement is easier than arguing about it later. This is general guidance, not legal advice; check the position with your highway authority and a qualified arboriculturist before relying on it.

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