Street trees, highway works and who gives consent

A tree growing in the verge outside your site is not yours, and the planning permission that shows it being removed does not authorise its removal. Trees within the adopted highway belong to the highway authority, and consent to touch them comes from that authority under the Highways Act 1980, not from the planning department.

On a two-tier site the two bodies are different organisations with different programmes and different attitudes to street trees. Sorting out the street tree highway consent late is one of the reliable ways to delay a start on site.

Ownership of trees in the highway

Ownership follows the land. Where the highway has been adopted, the authority owns the surface and the subsoil to the depth needed to maintain it, and trees it has planted within that extent are its property.

Complications arise in three situations.

A tree standing in a verge that was never adopted remains with the frontager, even where it looks identical to the adopted trees along the same street. A tree planted by a developer and later adopted along with the road passes to the authority at adoption, which is why the adoption agreement should say who maintains it and for how long. And a tree whose trunk straddles the boundary is owned by both parties, which in practice means neither can act alone.

Check the adopted highway record before assuming anything. The highway authority holds it, and the definitive answer to what is adopted is the list of streets rather than the kerb line on a drawing.

Consents needed for works near a highway tree

Several regimes can apply to the same tree at once, and they do not replace one another.

A highway tree can be subject to a Tree Preservation Order made by the planning authority, and where the highway authority is a different body the two consents both have to be obtained. An authority cannot make an order over its own highway trees in the usual case, though it can where the trees sit in land held for other purposes, so check rather than assume.

Working near a tree matters as much as working on it. Excavation within the root protection area, calculated under BS 5837:2012 as twelve times the stem diameter for a single-stem tree, needs the authority's agreement whether or not any branch is touched. The tree survey should include highway trees within influencing distance even though they sit outside the red line.

Where section 278 agreements bite

Section 278 of the Highways Act 1980 is the mechanism by which a developer funds and carries out works to the existing highway. Where a scheme needs a new access, a widened footway, a crossing point or a relocated bus stop, the tree implications land inside that agreement.

What the agreement should cover:

1. Which trees are to be removed, with an agreed valuation where compensation is payable.
2. Which trees are retained, with the protective measures to be installed and inspected.
3. Replacement planting: species, size, location, pit construction, irrigation and the establishment period.
4. A commuted sum for maintenance, where the authority requires one.
5. The point at which liability for the new trees transfers to the authority.

Negotiate the tree package with the arboricultural officer rather than with the highways engineer. Engineers price kerbs and surfacing. The tree conditions come from a different desk and arrive late if nobody asked.

Planting new street trees and maintenance liability

New street trees are easy to draw and hard to keep alive. Authorities know this, which is why the maintenance terms are usually more demanding than developers expect.

The technical requirements that decide survival are pit volume, soil specification, access to water and air, and protection from compaction and from vehicle overrun. A tree pit of inadequate volume under a footway produces a tree that survives the establishment period and declines afterwards, which is exactly the outcome the commuted sum is meant to prevent.

Expect the authority to require a stated establishment period during which the developer replaces failures, followed by transfer. Expect it to specify species from its own list rather than from the landscape architect's. And expect underground services to remove half the proposed positions, because the statutory undertakers' plant is already there.

Set the planting positions in the Landscape Strategy only after the utilities search, not before.

Utility works and the industry guidance

Trenching through root systems kills more street trees than felling does, and it happens under statutory powers that the planning system does not control.

Statutory undertakers work under the New Roads and Street Works Act 1991 and follow industry guidance on working near trees, which sets out methods including hand digging within root zones, trenchless techniques such as directional drilling, and minimum clearances from stems. The highway authority as street works coordinator can influence method and timing.

For a development site, the practical steps are to identify which utility connections cross rooted zones at the earliest design stage, ask the undertaker for a trenchless quotation before assuming open cut, and record the agreed method in the construction programme. Retaining a tree through the build has its own discipline, covered in retaining a tree through a construction programme.

Compensation and replacement planting

Where a highway tree is removed for a development, authorities generally require replacement, a financial contribution, or both. The basis for the figure varies. Some use an amenity valuation system, some use a published tariff, and some negotiate.

Ask early which basis applies, because the number can be substantial for a mature tree and it is rarely in the initial appraisal. Where replacement is offered in place of payment, agree the location before the offer is made, since a street with no space for new pits converts the offer straight back into a payment.

Off-site planting is usually acceptable to authorities and usually less useful to the scheme, because the amenity benefit lands somewhere else. That trade-off is worth discussing with the arboricultural officer rather than being presented with it.

Sequencing with the planning permission

The order of operations that avoids delay:

1. Establish which trees are in the adopted highway and which are not, from the highway record.
2. Commission the tree survey to cover highway trees within influencing distance.
3. Raise the tree implications at the first highways meeting, with the arboricultural officer present.
4. Fix the access geometry against the retained trees before the planning application is submitted.
5. Run the section 278 negotiation in parallel with the application.
6. Resolve utility routes and methods before the highway works are designed in detail.

The item most often left until last is the arboricultural officer's involvement in the section 278 process. Bring it forward. A tree objection raised during the agreement stage, after the permission is granted, has no planning process to resolve it and no deadline forcing a decision.

This is general guidance, not legal advice; check the position with your local planning authority, the highway 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.

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