Tree Preservation Orders: checking and the exemptions

Cutting down a protected tree without consent is a criminal offence, and the tree preservation order exemptions that let you work without an application are narrower than most people assume. Since the Town and Country Planning (Tree Preservation) (England) Regulations 2012 came into force, the old shorthand of dead, dying and dangerous no longer describes the law. A dead tree is exempt with five working days' notice. A dying tree is not exempt at all. And a dangerous tree is only exempt where the works are urgently necessary to remove an immediate risk of serious harm, which is a higher test than an arborist saying the tree is in poor condition.

Checking whether a tree is protected

Four separate controls can apply to the same tree, so check all of them before quoting for the work.

A tree preservation order made by the local planning authority under section 198 of the Town and Country Planning Act 1990 can cover an individual tree, a group, an area or a woodland. The authority holds the register and the order plans, and will confirm the position on request. Some order data is also published as national planning datasets, which is useful for a first check but not a substitute for asking the authority, because coverage and currency vary.

Conservation area status gives separate protection to trees above a size threshold even where no order exists. Planning conditions on a previous permission frequently require retention of named trees and tree protection during construction, and breaching those is a planning breach rather than a tree offence. Restrictive covenants and tenancy terms are a private law matter but can still stop the work.

Area orders deserve particular care. An area order protects the trees that were present when the order was made, which means a tree planted since is not covered, and establishing which is which on an older order can take some digging through the authority's file.

What an order prohibits and what it costs to get wrong

An order makes it an offence to cut down, uproot, top, lop, wilfully damage or wilfully destroy a protected tree without the authority's written consent. Wilful damage includes root severance during groundworks and compaction within the root protection area, which is why trenching for a drive or a drain is a common unintended breach.

Section 210 of the 1990 Act sets out the offences and the penalties, with the more serious cases, where a tree is destroyed, triable either way and attracting substantially higher fines. Sentencing provisions have changed over time, so check the current maximum rather than relying on a figure from an older guide.

Enforcement is real. Authorities prosecute, and the fact that the works were carried out by a contractor does not remove the owner's exposure where the owner caused or permitted them.

The exemptions and the notice they require

The 2012 Regulations set out the exempt works. The ones that matter in practice are these.

The notice is not an application and the authority does not consent to it, but it gives the authority the chance to inspect and, where it disagrees that the exemption applies, to intervene. Serve it in writing, keep the proof of service, and photograph the tree before the works.

Two practical warnings. Removal under the nuisance exemption is limited to what is needed to abate the nuisance, not to removing the whole tree because the branches overhang. And works to implement a planning permission are only exempt where the permission is a full one and the works are actually required by the approved scheme, which is not the same as convenient for it.

Dead, dying and dangerous in practice

The 2012 change matters because it narrowed the exemption and shifted the burden.

Dead means dead, assessed properly. A tree in decline, with significant dieback or decay, is not exempt, and removing it on the basis that it is dying is an offence.

The urgency exemption is drafted around immediate risk of serious harm. An arborist's report concluding that a tree has a structural defect requiring attention within the next season does not meet it. A split limb over a school entrance after a storm does. Where there is any doubt, do the minimum necessary to remove the immediate danger, record why with photographs and the arborist's contemporaneous assessment, and then apply for consent for anything further.

Where the condition of a tree is the issue, a survey carried out to the recognised British Standard for trees in relation to design, demolition and construction gives you a defensible record of condition, root protection areas and management recommendations. A Tree Survey prepared to that standard is also what the authority will expect if you later apply for consent.

Applying for consent to carry out works

The application for consent to carry out works to a protected tree is made to the local planning authority and there is no fee.

What to include: a plan identifying each tree with its order reference, the species and approximate dimensions, a clear specification of the works proposed for each tree in arboricultural terms rather than general ones, the reasons, and any supporting report. Replacement planting proposals strengthen an application for removal considerably.

The authority has eight weeks to decide, and a refusal or a condition can be appealed to the Planning Inspectorate. Write the specification precisely. Consent to reduce a crown by up to two metres is useful; consent to "prune as necessary" will either be refused or will be interpreted narrowly later.

Where trees form part of a wider scheme, the tree strategy usually sits alongside the soft landscape proposals, and the Landscape Strategy is where retention, removal and replacement are reconciled against the design. The character of the wider setting also matters to how an authority weighs tree loss, which is the territory covered by landscape character areas shaping a design.

Replacement duties after removal

Section 206 of the 1990 Act imposes a duty to plant a replacement tree of appropriate size and species at the same place, as soon as reasonably practicable, where a protected tree is removed in contravention of an order and also where it is removed under the dead or dangerous exemptions.

That second limb surprises people. Taking down a dead protected tree lawfully under the exemption still leaves you with a replanting duty, and the new tree is automatically protected by the original order.

The authority can waive the duty on application, and can enforce it by a tree replacement notice. Where the original position is unsuitable for a replacement, apply for the duty to be varied rather than planting somewhere else and hoping.

Trees in conservation areas and the six week notice

In a conservation area, section 211 of the 1990 Act requires six weeks' written notice to the authority before carrying out works to a tree that is not already covered by an order, unless the trunk diameter is 75 mm or less measured at 1.5 m above ground level, or 100 mm or less where the work is thinning to help the growth of other trees.

During the six weeks the authority can make an order, which turns the notice into an application. If it does nothing, you may carry out the works described in the notice within two years.

The same exemptions broadly apply as for order trees, and the practical advice is identical: measure the trunk properly at 1.5 m, describe the works precisely, and keep dated photographs.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. PlanScope can draft the arboricultural narrative for an application and flags protected trees detected near your site. Browse all 66 PlanScope report types and start a draft.

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