The replacement tree duty after unauthorised felling

Cut down a protected tree without consent and two separate things happen. One is the offence, which the council can prosecute. The other is a standing duty to plant a replacement, which arises automatically under section 206 of the Town and Country Planning Act 1990 and does not depend on anyone being prosecuted at all.

Landlords and investors who buy a site after the felling are often surprised by the second one, because the duty runs with the land rather than with the person who held the chainsaw. A tree replacement notice can land on an owner who was not involved and had no notice of the original breach.

Where the duty comes from

Section 206 applies where a tree subject to a tree preservation order is removed, uprooted or destroyed in contravention of the order. It also applies where a protected tree is removed because it was dead or presented an immediate risk of serious harm, which is the exemption most commonly relied on.

The duty is expressed simply. The owner of the land must plant another tree of an appropriate size and species at the same place, as soon as they reasonably can, unless the local planning authority dispenses with the duty on application.

Section 213 carries the same duty across to trees in conservation areas that are not separately protected by an order. So a tree felled in a conservation area without the six weeks' notice required by section 211 attracts the replacement duty in the same way.

One point that catches people out. The replacement tree is automatically protected by the original order once planted, under the Tree Preservation Regulations. You are not planting an unprotected tree in place of a protected one.

Same place, appropriate size and species, as soon as reasonably possible

Each of those three phrases does work, and each is a point of negotiation.

Same place is taken literally by most tree officers. The default is the stump position or immediately adjacent to it, and arguments for moving the planting elsewhere on the site need a reason grounded in amenity rather than in convenience. The statutory wording is different for woodland, where trees may be planted in places agreed with the authority rather than at the same spot.

Appropriate size and species is not a licence to plant a whip. The purpose is to restore the amenity that was lost, so an officer assessing a mature limetree that was felled will expect substantial nursery stock, often a heavy standard or an extra heavy standard, and the same or a comparable species unless there is an arboricultural reason to change. Where the original species is now inappropriate because of disease pressure or because the position has changed, say so and propose an alternative with reasoning.

As soon as reasonably possible is interpreted against the planting season. Bare root and rootballed stock goes in between late autumn and early spring, so a felling in June generally produces a replacement the following winter rather than immediately. Container-grown stock can be planted outside that window, but establishment is harder and an officer may prefer to wait.

Specify the planting properly. Pit size, soil amelioration, staking, irrigation for the establishment period and formative pruning all belong in the schedule, and BS 8545 covers trees from nursery to independence in the landscape. A replacement that dies in its second summer leaves the duty unsatisfied.

How a council enforces the duty

Nothing happens automatically. The duty exists whether or not the council knows about it, and enforcement begins when a tree officer notices the gap, receives a complaint, or reviews a site during a planning application.

The council's first step is usually informal: a letter setting out the duty and inviting a replacement scheme. Most cases resolve there, and it is much the better place to resolve them, because the owner keeps control of species, size and position.

Where that fails, the formal route is a tree replacement notice under section 207. The notice specifies the trees to be planted, their size and species, and the period within which planting must take place. It takes effect on a date stated in it, and compliance is then mandatory.

Section 209 gives the authority a power of entry to carry out the planting itself and recover its expenses from the owner where the notice is not complied with. That is the outcome to avoid, because the authority's costs will exceed what the work would have cost the owner.

Tree replacement notices and the appeal

A tree replacement notice cannot be served indefinitely after the event. Section 207 sets a four year limit running from the date of the failure to comply with the duty, which is not the same as four years from the felling. Working out the start date matters when a notice arrives late.

Appeals go to the Secretary of State and are handled by the Planning Inspectorate. The grounds available include that the duty does not apply at all, that the size or species the notice requires is unreasonable, that the trees are not required in the interests of amenity or to comply with the duty, and that the period allowed for planting is too short.

An appeal must be made before the notice takes effect, so read the date on the front page first. Lodge it, then assemble the arboricultural evidence, because the timescale is short and the notice bites if the date passes.

The evidence that tends to work is specific. Photographs and survey data showing the amenity contribution of the lost tree, an arboricultural opinion on species suitability in the actual growing conditions, a soil volume assessment where the position is constrained, and a costed planting specification offering an alternative. The evidence that does not work is an argument about who was responsible for the felling, which is relevant to prosecution and not to the duty.

When the land changes hands

Section 206 attaches the duty to the owner of the land from time to time. Buy a site where a protected tree was felled without consent and you inherit the obligation, whatever the contract says about the seller's conduct.

Three practical consequences for anyone acquiring land or property.

• Check the tree preservation order position and compare it against what is actually standing. A stump where the order shows a tree is a red flag, and so is a suspiciously new area of hardstanding.
• Raise a specific enquiry about felling, section 211 notices and any correspondence with the tree officer, rather than relying on the standard replies.
• Where a breach is discovered, price the replacement and the maintenance period into the transaction, and consider an indemnity. The duty itself cannot be contracted away as against the council.

A tree survey carried out before exchange picks up most of this, and it is the same survey you will need if the site is going to be developed.

Getting the duty dispensed with

The authority has a discretion to dispense with the duty on application, and it is used more often than people assume. Dispensation is worth seeking where replanting at the same place is impossible or would be harmful.

The arguments that succeed tend to be physical. There is no longer soil volume at the location because of a lawful structure. The position would put a tree into conflict with a building foundation or a drain at a distance no species can tolerate. Underground services now occupy the rooting volume. Or the amenity that the original tree provided has been replaced by other planting that does the same job better.

Offer an alternative rather than asking for the duty to disappear. A replacement elsewhere on the site, a larger specimen, or a group of trees in place of one will usually get a better answer than a bare application to dispense. This is the same negotiation that arises with replacement planting conditions after tree loss on a development site, and officers apply similar reasoning.

What to do after an accidental breach

Accidental breaches are common. A contractor clears scrub and takes a young oak with it, or a tree surgeon reduces a crown so heavily that the tree is destroyed in practical terms. The response in the first fortnight shapes everything that follows.

Tell the council before they find out. An owner who reports the loss, explains what happened and proposes a replacement scheme is in a very different position from one who waits for the letter. Councils exercise discretion on prosecution, and cooperation is a factor.

Then put a proper proposal together. An arboricultural report recording what was lost, with any photographs that exist. A replacement specification stating species, nursery stock size, planting position on a scaled plan, and the establishment maintenance regime for at least the first five years. And a monitoring arrangement, since an arboricultural site monitoring record gives the officer confidence the planting will survive.

Where several trees were lost or the site is being developed, a Landscape Strategy covering the whole site usually answers better than a series of individual replacements.

Enter your postcode on PlanScope to see which reports a site with protected trees is likely to need.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified arboriculturist 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.