TPO exemptions for dead or dangerous trees

If a tree protected by a Tree Preservation Order is dead, you may cut it down without the authority's consent, but you must give the local planning authority five working days' written notice first. If the tree presents an immediate risk of serious harm, you may do the work needed to remove that risk straight away, and give notice as soon as practicable afterwards. Those two exemptions sit in regulation 14 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012, and the difference between them is the notice.

One thing to fix at the outset. The old formula of "dead, dying or dangerous" no longer describes the law in England. The 2012 Regulations dropped "dying" as a category. A declining tree that is not dead and does not present an immediate risk of serious harm needs a consent application like any other.

The exemptions in the 2012 Regulations

Regulation 14 lists the circumstances in which the prohibition in an Order does not apply. Four of them come up on a domestic site.

• The tree is dead. Notice of at least five working days must be given to the authority before the work starts.
• The work is urgently necessary to remove an immediate risk of serious harm. No prior notice, but notice must be given as soon as practicable after the work.
• Removal of dead branches from a living tree. No notice required.
• The work is required to carry out development authorised by a planning permission already granted, other than an outline permission.

Several other exemptions exist, including works by statutory undertakers, work to abate a nuisance, fruit trees cultivated for fruit production, and work required to comply with a statutory obligation. Each is narrower than it sounds, and the nuisance exemption in particular is not a general licence to prune a neighbour's protected tree.

The burden of proof matters more than the list. If the authority prosecutes, the person who did the work has to establish the exemption. Nobody can establish that a tree was dead after the stump has been ground out and the brash has gone to the chipper.

The urgency test, and who decides it

"Urgently necessary to remove an immediate risk of serious harm" is a high threshold and a composite one. All three elements have to be present.

The risk has to be of serious harm, which means harm to people or to property of a serious kind, not an inconvenience or a messy driveway. It has to be immediate, meaning present now rather than foreseeable within a season. And the works have to be urgently necessary, which means confined to what removes the risk. Felling a whole tree where crown reduction or the removal of one limb would do takes the work outside the exemption.

The person deciding, in the first instance, is you or your contractor. The authority decides later, and so may a court. That asymmetry is the reason to get a written arboricultural opinion before the saw comes out wherever the timetable allows it. Where a limb has already failed in a storm and there is a nursery below, the position is obvious. Where a tree has a fungal bracket and a lean it has had for fifteen years, it is not.

The notice, and what to put in it

The five working day notice for a dead tree is a simple document, and it is worth making it a good one.

1. Identify the tree by reference to the Order and its number or plan reference, with the site address.
2. State the works proposed, in arboricultural terms, not "remove tree".
3. State the grounds relied on, naming the exemption in regulation 14.
4. Attach dated photographs showing the whole tree and the features relied on.
5. Attach any arboricultural report, with the inspection date and the inspector's qualifications.
6. Give the date work is intended to start, counting five clear working days from receipt.

Working days exclude weekends and bank holidays, and the clock runs from receipt rather than from posting. Email to the authority's tree officer, with a read receipt or an acknowledgement, is the sensible route. Authorities frequently inspect within the notice period, and a tree officer who agrees the tree is dead will usually say so in writing, which is the record you want.

Evidence to record before anything is felled

Assume at the outset that you will have to prove the position two years later to someone who never saw the tree.

For an emergency felling, a short written record made on the day by whoever carried out the inspection is worth more than a polished report produced a month later. Photographs from a phone, with the metadata intact, are usually accepted.

Where a protected tree sits near proposed development rather than on its own, the position is different and a survey to the relevant British Standard is the right starting point. A tree survey or Arboricultural Impact Assessment records the condition, the root protection areas and the constraints, and councils expect a suitably qualified author for that work.

Replacement planting, which catches almost everyone

Section 206 of the Town and Country Planning Act 1990 imposes a duty to plant a replacement tree where a protected tree is removed, uprooted or destroyed, including where it was removed because it was dead or because it presented an immediate risk of serious harm.

The replacement has to be of an appropriate size and species, at the same place, as soon as reasonably possible. The authority can dispense with the duty on application, and often will where there is no sensible planting position, but the dispensation has to be asked for rather than assumed. The new tree becomes subject to the same Order automatically.

Enforcement is by a tree replacement notice under section 207, which the authority may serve within four years of the duty arising. That is the step that surprises owners who felled a dead tree correctly, gave notice correctly and then did nothing for three years.

An illustrative example

This example is illustrative. A protected mature ash in a rear garden shows crown dieback across more than three quarters of the canopy and basal lesions consistent with ash dieback. The owner's consultant inspects, records the condition with photographs, and advises that the tree is not yet dead but is in decline with a failing root plate adjacent to a shed used daily. The consultant's view is that the risk is not immediate. The owner therefore applies for consent rather than relying on an exemption, and in the same application offers a replacement semi-mature hornbeam. Consent is granted in six weeks with a planting condition. Had the owner felled it on the "dying" basis, the exemption would not have been available.

Prosecution risk, and the cost of getting it wrong

Section 210 of the 1990 Act makes it an offence to cut down, uproot or wilfully destroy a protected tree, or to top, lop or wilfully damage it in a way likely to destroy it. On summary conviction the fine is unlimited, and the court is required to have regard to any financial benefit that has accrued or is likely to accrue from the offence.

That last provision is why the fines in development cases can be substantial: the benefit is measured by reference to the gain, such as the uplift from a cleared plot or an unobstructed view. Lesser contraventions attract a lower level of fine. A contractor who carries out the work can be prosecuted alongside the owner who instructed it.

Two related points worth knowing. Trees in a conservation area that are not subject to an Order are protected by a separate regime requiring six weeks' notice under section 211 of the 1990 Act, with its own exemptions and a diameter threshold below which notice is not needed. And the question of what counts as damage likely to destroy a tree is a matter of degree, which is the kind of judgement we look at in de minimis in planning judgments.

Get a written opinion from a suitably qualified arboriculturist before felling anything protected; the professional directory is one route to a reviewer. If the tree sits on a site you are developing, the full list of report types shows what else will be expected.

This is general guidance, not legal advice. Check the position with your local planning authority's tree officer 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.