Tree Preservation Order procedure: making, objecting, consent

The Tree Preservation Order procedure in England runs on sections 198 to 214 of the Town and Country Planning Act 1990 and the Town and Country Planning (Tree Preservation) (England) Regulations 2012. If a tree in your garden has just been made the subject of an order, you have at least 28 days to object, no right of appeal against the order itself, and a separate right to apply for consent to work on the tree once the order is in place. Those three facts are the ones that matter in the first week.

Before anything else, get a copy of the order and the map, and find out whether your tree is actually on it.

How an order is made and served

A council makes an order where it considers it expedient in the interests of amenity to protect trees or woodlands. Amenity is not defined in the Act, which gives authorities wide discretion, and in practice they consider how visible the tree is from public places, its condition, its size and species, its contribution to the character of the area, and whether it is under threat.

The order itself is a short document with a schedule and a map. The schedule lists what is protected, either as individual trees with reference numbers, as groups, as areas, or as woodland. Which category applies matters a good deal. An individual tree entry protects that tree. An area designation protects all the trees in the defined area that were there when the order was made, which means a young tree planted afterwards is not protected. Woodland designation protects the woodland as a whole, including trees that grow up later.

The council must serve a copy of the order on the owner and occupier of the land and on anyone else with an interest in it, together with a statement of its reasons and a note telling you how to object. Read the reasons. They tell you what the council thinks it is protecting and therefore what argument might change its mind.

The provisional period and confirmation

Most orders take effect immediately when they are made, because the council gives a direction to that effect under section 201 of the Act. That provisional protection lasts for six months from the date the order was made unless the council confirms the order before then.

So the sequence is: order made, protection begins at once, objection period runs, council considers objections, council confirms or does not confirm. If six months pass without confirmation, the order lapses and the trees are no longer protected by it. Councils occasionally miss the deadline, and if yours does, the protection goes.

Once the order is confirmed it has no expiry date. It stays until the council revokes it, which they rarely do, or until the trees die.

Objecting to an order

You get at least 28 days from the date the order was served to make objections or representations, and the notice will state the deadline. Write to the officer named, in writing, before the date.

What works in an objection is specific and evidenced. What does not work is the assertion that the tree is inconvenient.

• A professional arboricultural report on the tree's condition, if there is a real defect. Councils take a report from a qualified arboriculturist seriously and take a tree surgeon's quote less seriously.
• Evidence that the species or specimen has limited amenity value, for example that it is a self-seeded sycamore behind a 2 m fence and invisible from anywhere public.
• Evidence that the tree is causing actual structural damage, supported by a structural engineer's assessment and, where subsidence is claimed, by monitoring data rather than by cracks in a photograph.
• An error of fact in the order, such as the wrong tree being identified or the map being wrong.
• An argument for modification rather than revocation, such as removing one tree from a group of five.

That last one is the most successful in practice. Councils are far more willing to confirm an order with modifications than to abandon it altogether.

There is no appeal against the making or the confirmation of an order. The only legal challenge is judicial review in the High Court, which is expensive, has a short time limit and succeeds only on a legal error rather than on disagreement about amenity. For almost every householder, the objection is the opportunity, and after that the route is a consent application.

Applying for consent to work on a protected tree

An order does not prohibit work on the tree. It requires the council's written consent first.

Apply on the standard tree works application form, which covers both works to trees under an order and notification of works to trees in a conservation area. There is no fee. The council has eight weeks to decide, and if it fails to decide in that period you have an appeal right as though it had refused.

Make the application do the arguing for you.

1. Describe the work in arboricultural terms, with the specification. Crown reduction of 2 m on the south side is a proposal. Cut it back is not.
2. Give the reason, and give the evidence for the reason. Light loss, structural damage, deadwood, disease, and interference with a building are all recognised reasons, and each has an appropriate form of evidence.
3. Include photographs that show the tree in context and the problem close up.
4. Where the proposal is felling, say what you propose to plant in replacement, where, and at what size. A felling application with a replacement proposal is a much stronger application.
5. Name the arboriculturist who prepared the specification.

Councils will often grant consent for sensible pruning and refuse felling for the same tree. If felling is what you need, the application has to show that pruning will not solve the problem.

Where a tree sits on a development site rather than in a garden, the survey work needed is more extensive and the document that carries it is the tree survey and arboricultural impact assessment, which assesses each tree against BS 5837:2012 and sets out root protection areas.

Exempt works and the five day notice

Some works need no consent at all. The 2012 Regulations set out the exemptions, and three come up constantly.

Work on a dead tree is exempt, but you must give the council five working days' written notice before cutting it down. Work needed to remove an immediate risk of serious harm is exempt, and notice has to be given as soon as practicable afterwards rather than before. Work to abate a nuisance in the legal sense, which is narrower than the everyday sense, is also exempt.

Two warnings about these. First, the burden of proving an exemption falls on you if the council prosecutes, so photograph and document the tree's condition before the work and get an arboriculturist's written opinion if there is any doubt. Second, where a tree is removed under the dead or dangerous exemption, the duty to plant a replacement under section 206 of the Act still applies, and the council can enforce it.

In a conservation area, trees that are not covered by an order are protected differently. You must give the council six weeks' notice under section 211 of the Act before doing work, which gives the council time to make an order if it wants to. Trees with a stem diameter of 75 mm or less, measured at 1.5 m above the ground, are exempt from that notice, with a slightly larger figure where the work is thinning to help other trees grow.

Appealing a refusal

If consent is refused, or granted with conditions you cannot live with, you can appeal to the Secretary of State. The appeal is handled by the Planning Inspectorate and must be lodged within the period stated on the decision notice, commonly 28 days, so check the date on the notice rather than assuming.

The appeal is decided by an inspector who will usually visit the site. Appeals are won on arboricultural evidence, so if you did not commission a report for the application, commission one for the appeal.

Limited compensation provisions exist in the 2012 Regulations for loss or damage caused by a refusal of consent, subject to exclusions and a minimum claim value. Loss of development value is excluded, and claims have a time limit, so take advice before relying on it.

Offences, penalties and the duty to replace

Cutting down, uprooting or wilfully destroying a protected tree, or damaging it in a way likely to destroy it, is an offence under section 210 of the Act, and on conviction in the magistrates' court the fine is unlimited. Other contraventions, including unauthorised pruning, carry a fine up to level 4 on the standard scale. The court is required to take account of any financial benefit that has accrued or is likely to accrue from the offence.

The replacement duty is the part people forget. Where a tree protected by an order is removed, uprooted or destroyed in contravention of the order, the landowner must plant a replacement of appropriate size and species at the same place as soon as reasonably practicable. The council can serve a tree replacement notice to enforce it, and that notice can be appealed.

If you think work has been done unlawfully to a protected tree near you, the council's enforcement team is the route, and how those complaints are prioritised in practice is set out in the look at council enforcement priorities and how complaints work.

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. If the trees sit on a site you are looking to develop, the index of report types by category shows what a scheme is likely to need, and you can start from a postcode.