Tree Preservation Orders: how to check and apply for works

Cutting down a tree protected by a Tree Preservation Order without consent is a criminal offence, and the fine is unlimited. That is the reason a tree preservation order check belongs at the start of any project involving a garden, not at the point where a contractor is already on site with a chainsaw.

Checking takes about twenty minutes and costs nothing.

Finding out whether a tree on your land is protected

Four checks, and you need all four, because a tree can be protected by more than one route.

Ask the council's tree officer or search the council website for its Tree Preservation Order register. Many authorities publish a map layer showing individual trees, groups, areas and woodlands covered by Orders. Some still hold paper Orders and will search on request, usually free.

Check whether the property is in a conservation area, because trees there have separate protection with a different procedure.

Read the planning history for the property. Conditions on the original permission for a house or estate frequently require named trees to be retained, and a landscaping condition can protect a tree that has no Order at all. Breaching a condition is enforceable even where the tree is otherwise unprotected.

Check the title deeds for covenants. These are private obligations rather than planning ones, so the council will not enforce them, but a neighbour or a management company can.

An Order can cover a single tree, a group, an area defined at a point in time, or a whole woodland. Area Orders catch people out, because they protect the trees that were present when the Order was made, and identifying which those are may need a look at the original schedule.

Applying for consent to work on a protected tree

Works to a tree covered by an Order need the council's consent, applied for under the Town and Country Planning (Tree Preservation) (England) Regulations 2012. There is no fee.

The application form asks for the tree, the works proposed and the reasons. Reasons are the whole application. "The tree is too big" is not a reason a tree officer can accept. Structural damage evidenced by an engineer, subsidence evidenced by a monitoring record, disease evidenced by an arboriculturist's inspection, and an unacceptable and unmanageable shading effect on habitable rooms all are.

The council has eight weeks to decide. If it does not, consent is treated as refused and you have a right of appeal to the Planning Inspectorate. Consent, once granted, is normally valid for two years.

Ask for the least you need. An application to fell will often come back as consent for a crown reduction, and an application for a well-specified reduction is far more likely to be granted than a bare felling request.

Trees in a conservation area

Trees in a conservation area that are not already covered by an Order are protected by section 211 of the Town and Country Planning Act 1990. Rather than applying for consent, you give the council six weeks' written notice of the intended works, describing the tree and what you propose.

The threshold is size. Notice is required for trees with a stem diameter of more than 75 millimetres measured at 1.5 metres above ground level, or more than 100 millimetres where the work is thinning to help the growth of other trees.

During those six weeks the council can make a Tree Preservation Order, which is exactly what a section 211 notice is designed to give it the chance to do. If it makes no Order, you may carry out the works as described in the notice at any time in the following two years. Carrying out works without giving notice is an offence in the same way as breaching an Order.

Exemptions, and the dangerous tree defence

The Regulations exempt some work, and the exemptions are narrower than the folklore suggests.

Dead trees may be removed, and dead branches may be cut from a living tree. Note that dying and diseased trees are not exempt. The 2012 Regulations tightened this, and a tree in poor health still needs consent.

Work urgently necessary to remove an immediate risk of serious harm is exempt. Immediate is doing real work in that sentence. A tree that might fail in a storm next winter is not an immediate risk, and a council will treat a felling justified on that basis as an offence.

Both exemptions come with a notice requirement. For dead trees, give the council five working days' written notice before the work. Where the work was urgent, notify the council in writing as soon as practicable afterwards. Photograph the tree before, during and after, keep the arboriculturist's inspection record, and keep the timber on site if you can, because the burden of proving the exemption falls on you.

There is also a duty to replace. Where a tree covered by an Order is removed under the dead or dangerous exemption, or in contravention of the Order, the landowner is under a duty to plant a replacement of appropriate size and species at the same place as soon as reasonably possible.

What an arboricultural report needs to say

For anything beyond simple pruning, a report from a qualified arboriculturist is what turns an application into a decision.

It should identify the tree by species, dimensions and position, describe its condition from a visual inspection with any further investigation recorded, state the reason for the proposed works with evidence, specify the works using the recognised tree work terminology from the relevant British Standard rather than vague words like "topping", and set out the effect on the tree's health and amenity value.

Where the works relate to a development proposal rather than to the tree's own condition, the document you need is a survey and impact assessment to the British Standard on trees in relation to design, demolition and construction, with a tree protection plan and a method statement for any work inside a root protection area. An arboricultural impact assessment of that kind is what a tree officer expects alongside a planning application, and councils usually expect a suitably qualified author, so professional review is strongly advised.

Conditions, replanting and what enforcement looks like

Consent commonly carries conditions: the works to be carried out in accordance with the specified British Standard, completion within a stated period, and replacement planting of a named species and size in a named position within the next planting season.

Take the replanting condition seriously. It is enforceable, tree officers do revisit, and a replacement that dies has to be replaced again.

Where a protected tree is destroyed without consent, the council can prosecute. The offence of cutting down, uprooting or wilfully destroying a protected tree, or damaging it in a way likely to destroy it, carries an unlimited fine, 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 exists precisely because removing an inconvenient tree can increase a site's development value, and courts are asked to price that in.

If you are buying a site where a tree has recently gone, ask what authorised it. The liability runs with the land in the sense that the replanting duty attaches to the landowner, and a planning statement that has to explain a stump is a harder document to write than one that does not.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

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