The duty to consult before felling a street tree
The Environment Act 2021 duty requires highway authorities to consult before felling street trees, with exemptions that are where most disputes start.
Before a local highway authority in England fells a street tree, it has to consult the public. That duty was created by the Environment Act 2021 and is set out in regulations and statutory guidance issued in 2022. It applies to trees on the highways the authority is responsible for, it carries a list of exemptions, and it requires the authority to have regard to what people say and to publish the outcome. What it does not do is give anyone a veto.
Street trees rarely carry a Tree Preservation Order, which is why this duty matters. Without it, a highway authority could remove a mature street tree with no public process at all.
Where the duty comes from
The Environment Act 2021 introduced a consultation requirement for local highway authorities in England proposing to fell a street tree, together with a power to make regulations setting out how it works. Regulations and accompanying guidance followed in 2022, covering what must be consulted on, the exemptions, and the reporting expected afterwards.
The duty sits alongside, rather than inside, the planning system. It is not a planning application, there is no decision notice, and there is no appeal to the Planning Inspectorate. Enforcement of the duty is through the authority's own governance, judicial review and the Local Government and Social Care Ombudsman.
Because it is not a planning process, the language differs from the Tree Preservation Order regime. A street tree removal is a highway authority decision about its own asset, and the consultation is a check on how that decision is made.
Which trees and which authorities are covered
The duty applies to local highway authorities in England: county councils, unitary authorities, metropolitan districts, London boroughs and Transport for London for the roads it manages.
A street tree for these purposes is a tree in or adjacent to a highway maintained at public expense, where the authority is responsible for it. That definition excludes several categories people assume are covered.
- Trees in parks, on housing land or in a school ground, even where the same council owns them, because those are not highway trees.
- Trees on private land overhanging the footway, which remain the owner's responsibility and may be protected by a Tree Preservation Order instead.
- Trees on the strategic road network managed nationally rather than by the local authority.
- Trees managed by a third party under a highways private finance contract, where the contracting authority still holds the duty.
Where a tree stands on private land, the route is different and stronger. The local planning authority can make a Tree Preservation Order, and works without consent are then a criminal offence. On highway land the duty to consult is what you have.
What the consultation must cover
The point of the consultation is to let people understand and test the reason for felling.
An adequate consultation identifies the tree and its location precisely, states the reason for the proposed felling, explains what alternatives were considered, gives a period for responses and says how to respond, and explains what will happen to the responses. Good practice adds the arboricultural assessment or a summary of it, and states whether replacement planting is proposed, where and when.
Reasons given in practice fall into a small number of categories: the tree is dead or in irreversible decline, it has a structural defect creating unacceptable risk, it is causing damage to the footway or to a property that cannot be managed by other means, it is diseased in a way that threatens other trees, or it obstructs a scheme with its own consent.
Ask for the evidence behind the reason. A stated risk should be supported by an inspection record with a date, an inspector, a method and a conclusion. Damage should be supported by evidence, and the assumption that roots have caused a crack is not evidence, as the position on tree roots, drains and soakaways illustrates.
The exemptions and their scope
The regulations exempt categories of felling from the consultation duty, and the exemptions are where most disputes arise.
The broad categories are trees that are dead, trees that present an immediate risk requiring urgent action, trees below a stated stem diameter measured at a defined height, felling required by another statutory duty, and felling needed to carry out works for which permission or consent has already been given. Check the current regulations for the precise wording and the diameter figure, because both matter and both have been misquoted.
Two points are worth pressing where an exemption is claimed. An exemption for immediate risk is about urgency, so a tree identified as hazardous six months ago and scheduled for removal next spring is not obviously urgent. And an exemption for works with consent covers the works consented, not a wider clearance carried out at the same time for convenience.
Where felling is exempt, the authority may still choose to tell people. Many do, because the reputational cost of an unannounced removal usually exceeds the cost of a notice on a lamp post.
How responses must be considered
The authority has to have regard to the responses. That is a real obligation and a limited one.
Having regard means the responses must be read, summarised and taken into account by the person making the decision, and the decision must be capable of being explained in light of them. It does not mean the majority view prevails. An authority that receives 200 objections and fells the tree anyway has not breached the duty if it considered the objections and gave reasons.
Where objections raise a technical point, the authority should answer it. A response that simply restates the original reason, without engaging with an alternative such as crown reduction, root pruning with a barrier, or footway relaying in a flexible material, is the kind of response that judicial review challenges are built on.
Reporting and transparency
Authorities are expected to publish the outcome, including the decision, the reasons and a summary of the consultation responses.
That record is the most useful document for residents, because it shows how the authority has handled similar cases. Several authorities publish a tree strategy alongside it, setting out inspection frequency, risk assessment methodology, replacement policy and canopy cover targets. Read both before engaging on a specific tree.
Replacement planting is where the published position often falls short of expectation. Ask whether replacement is one for one, whether it will be in the same street, what stock size is proposed, and who waters it through establishment. Establishment is the stage where street planting fails, and the relevant standards for planting specification and establishment apply to highway planting as much as to development schemes.
What residents can do in practice
- Respond within the consultation period, in writing, addressing the stated reason rather than the loss of the tree in general terms.
- Request the inspection record and any arboricultural report, using a freedom of information request if it is not volunteered.
- Commission an independent arboricultural opinion where the tree is significant and the stated defect is contestable.
- Propose a specific alternative: crown reduction, a root barrier, flexible surfacing, a relocated kerb line, or retention with monitoring.
- Ask local councillors to request the decision be reported to a committee where the tree is of local importance.
- Ask for the replacement commitment in writing, with species, size, position and an establishment watering arrangement.
- Where the process has gone wrong rather than the decision, complain to the authority and then to the Local Government and Social Care Ombudsman.
An illustrative example: a street lime scheduled for felling because the footway is lifting and a resident has reported trip hazards. The consultation response points to the inspection record, which identifies no defect in the tree. Residents propose relaying the footway in a flexible bound surface with a root sensitive build up rather than removing the tree. The authority publishes a decision retaining the tree with the footway relaid, and records the resident proposal as the reason for the change.
Development schemes affecting trees run on a different track, and a BS 5837 survey is usually the starting point. PlanScope drafts the tree survey narrative and the related supporting documents from your site details, structured to UK planning policy, flagging what a qualified arboriculturist has to record on site.
This is general guidance, not legal advice; check the current regulations and your authority's published tree strategy 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
Does the duty apply to every council tree?
No. It applies to street trees on highways maintained at public expense where the local highway authority is responsible for them. Trees in parks, on housing land or in school grounds are outside it, even where the same council owns them. Trees on private land are not covered either, though they can be protected by a Tree Preservation Order.
Can objections stop a felling?
Not directly. The authority must have regard to responses, meaning they are read, summarised and taken into account by the decision maker, who must be able to explain the decision in light of them. A majority against does not decide the outcome. What does succeed is a specific technical alternative the authority has failed to address.
Which fellings are exempt from consultation?
Broadly, dead trees, trees presenting an immediate risk requiring urgent action, trees below a stated stem diameter, felling required by another statutory duty, and felling needed to implement works already consented. Check the current regulations for the precise wording and diameter, since both are often misquoted, and press an urgency claim where the work has been scheduled for months.
How do I get the evidence behind a proposed felling?
Ask the authority first, and make a freedom of information request if the inspection record is not volunteered. You are looking for a dated inspection with a named inspector, a stated method and a conclusion. Where the tree matters locally and the claimed defect is contestable, an independent arboricultural opinion is money well spent.
What should I ask about replacement planting?
Whether replacement is one for one, whether it will be in the same street, what stock size is proposed, which species, and who waters it during establishment. Establishment is where street planting most often fails, so a written watering arrangement for the first few seasons matters more than the size of the tree on delivery.
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.