Tree Preservation Orders: the consent you still need

If a tree in your garden is covered by a Tree Preservation Order, you need the council's written consent before you cut it down, top it, lop it, uproot it or wilfully damage it. Planning permission for an extension does not automatically give you that consent, and neither does an arborist's opinion that the tree is a nuisance. The tree preservation order rules sit in section 198 of the Town and Country Planning Act 1990 and in the Town and Country Planning (Tree Preservation) (England) Regulations 2012.

Start by finding out what you are dealing with. Most councils publish a tree constraints map online, and the national planning data platform carries TPO datasets for many authorities. If in doubt, email the tree officer with the address and a photograph. That email is also useful evidence later.

What a TPO does and how one is made

A TPO can cover a single tree, a group of trees, an area of trees as they stood on the date of the order, or a woodland. It does not oblige the council to maintain the tree, and it does not transfer any liability away from you as owner.

The council makes the order and it takes effect provisionally straight away. That provisional protection lasts six months unless the order is confirmed. Anyone affected has 28 days from the date the order is served to object or comment, and the council must consider those representations before confirming.

Two points householders often miss. An order can be made in a single afternoon, including after a council officer has seen a tree surgeon's van outside. And an area order protects the trees that existed when the order was made, so a self-sown sycamore that appeared afterwards is not covered by it.

Trees in a conservation area are protected differently, and that regime is covered further down.

Applying for consent to prune or fell

The application is made to the council on the standard form, and there is no fee. Councils generally determine it within eight weeks.

What makes an application succeed is specificity. "Reduce the oak" tells the tree officer nothing. Give:

• the species and position of each tree, keyed to a sketch plan
• the works proposed in the language of BS 3998, for example a crown reduction of 2 metres with a stated final crown shape, or crown lifting to 4 metres over the footpath
• the reason, with evidence: photographs of the subsidence crack, the surveyor's report, the drain survey, the light readings
• who will carry out the work and to what standard

The council can grant consent, grant it subject to conditions such as replanting, or refuse. There is a right of appeal to the Planning Inspectorate. Limited compensation for loss or damage caused by a refusal is available in defined circumstances under the 2012 Regulations, and it is narrower than most people expect.

Where a tree is affecting a building, an arboricultural report that explains the mechanism carries far more weight than a complaint about leaves or shade. A tree survey prepared to BS 5837:2012 is the standard document where the works relate to a development proposal rather than to maintenance.

The six-week notice in conservation areas

Trees in a conservation area that are not already covered by an order are protected by section 211 of the 1990 Act. You give the council six weeks' written notice of the works you intend to carry out, and then you may proceed unless the council makes a TPO in the meantime.

Small trees are exempt. The threshold is a stem diameter of 75 millimetres measured at 1.5 metres above ground, rising to 100 millimetres where the work is thinning to improve the growth of other trees.

The notice is not an application, so the council does not grant or refuse it. It either acts within the six weeks or it does not. Carrying out works without giving notice is an offence in the same way as breaching a TPO.

Exemptions for dead, dying and dangerous trees

The exemptions are narrower than the phrase "dead, dying or dangerous" suggests, and the burden of proving one falls on the person who did the work.

1. A dead tree may be cut down, but five days' written notice to the council is required first, except in an emergency.
2. Dead branches may be removed from a living tree without notice.
3. Works urgently necessary to remove an immediate risk of serious harm may be carried out, with notice given to the council as soon as practicable afterwards.
4. Works necessary to implement a full planning permission are exempt, so far as they are necessary. Outline permission does not carry the exemption.

Before any felling under an exemption, photograph the tree from several angles, record the date, and get a written opinion from an arboriculturist. A council prosecuting under section 210 does not have to prove the tree was healthy. You have to show the exemption applied.

Illustrative example: a protected ash showing extensive basal lesions and crown dieback. The owner obtains a report describing the decay, gives five days' notice, photographs the standing tree and the felled stem sections, and plants a replacement field maple the following winter. The council raises no issue. The neighbour who felled a similar tree the same week with no notice and no report received a replacement notice and a caution.

Replanting duties after removal

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

The replacement tree becomes subject to the original order automatically. You do not get a clean slate.

If you do not replant, the council can serve a tree replacement notice, and it has four years from the date of the default to do so. A notice can be appealed, and the practical grounds are usually that the requirement is unreasonable in the circumstances or that the species or position specified is wrong for the site.

Penalties and how councils enforce

Cutting down, uprooting or destroying a protected tree, or damaging it in a way likely to destroy it, is an offence under section 210. It carries an unlimited fine, and the court is required to take account of any financial benefit that has accrued or is likely to accrue from the offence. Development value gained by removing a constraint is exactly the kind of benefit that gets counted.

Less serious works, such as lopping or topping that is not likely to destroy the tree, carry a lower maximum penalty on the standard scale.

Councils also use injunctions where a felling is threatened, and they will act on a neighbour's phone call. Unlike the time limits that apply to planning enforcement generally, a tree offence is prosecuted on the basis of when the work was done, and the replacement duty runs separately.

The practical protection for a householder is process. Ask the council whether a tree is protected before instructing anyone. Apply, or give notice, in writing. Keep the reply. Take photographs before work starts. Contractors who tell you a tree "isn't really protected" are not the ones prosecuted.

For a development scheme rather than routine maintenance, deal with trees at design stage. Browse the report types to see which arboricultural documents a council will expect alongside the application, and get the survey done before the drawings are fixed.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional 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. Enter your postcode on PlanScope to check what your site is likely to need.