Tree replacement duties and replacement notices

Cut down a protected tree without consent and a replacement duty arises automatically. Nobody has to serve anything for the tree replacement duty under a TPO to bite: section 206 of the Town and Country Planning Act 1990 places the obligation on the landowner as soon as the tree goes, and the replacement tree becomes subject to the same order. The notice power in section 207 exists only because owners so often ignore the duty they already have.

The duty to replace a tree removed in breach

Section 206 requires the owner of the land to plant another tree of an appropriate size and species at the same place as soon as they reasonably can. The duty applies where a protected tree is removed, uprooted or destroyed in contravention of a tree preservation order.

It also applies in a case that surprises people: where a tree is removed under the exemption for trees that are dead or which present an immediate risk of serious harm. That exemption removes the need for consent. It does not remove the duty to replace. An owner who fells a dead oak lawfully still owes a replacement unless the authority dispenses with it.

Woodland works differently. Where the order covers woodland, the requirement is to plant the same number of trees on or near the land, or on other land agreed with the authority, rather than in exactly the same spot.

How the duty arises automatically

There is no application, no notice and no discretion at the point the duty arises. The tree is felled, and the obligation exists.

Two consequences follow. The duty runs with the land, so a purchaser can inherit an obligation created by a previous owner, which is why tree history belongs in pre-acquisition due diligence alongside planning history. And the replacement, once planted, is protected by the original order as though it were the original tree, so it cannot be removed later without consent either.

The authority can dispense with the duty on application. That is worth pursuing where replanting in the same position is impractical, for instance where the original tree was too close to a structure or where services now occupy the ground. Ask before planting rather than after.

Conservation area trees are covered by the same machinery. Where a tree in a conservation area that is not subject to an order is removed without the required notice, the replacement duty applies in the same way.

Replacement notices and what they can require

Where the duty has not been complied with, the authority may serve a tree replacement notice under section 207. The notice requires the owner to plant a tree or trees of a specified size, species and position within a specified period.

A notice cannot require something unreasonable. It has to be capable of being complied with, and a requirement to plant a mature specimen where the original was a sapling, or to plant in a position now occupied by a building, is open to challenge on appeal.

Where the removal was of a woodland or a group, expect the notice to address the number rather than the individual positions, which is where the felling licence regime can also be engaged. The overlap between the two is set out under woodland felling licences when planning is not enough.

Time limits for serving a notice

A replacement notice must be served within four years from the date of the failure to comply with the duty. That period is measured from the failure, not from the felling, and the two dates are not the same: the duty is to plant as soon as reasonably practicable, so the failure crystallises some time after the tree comes down.

Check the current provision before relying on the period, since enforcement time limits elsewhere in the planning system were altered by the Levelling-up and Regeneration Act 2023 and the tree provisions are worth confirming against the current text.

For an owner, the practical reading is not that a four-year wait solves the problem. Authorities that care about tree loss serve promptly, and the offence of contravening an order carries its own penalty on conviction regardless of whether a replacement notice is ever served.

Appealing a replacement notice

An appeal lies to the Secretary of State and is determined by the Planning Inspectorate. The grounds available include that the duty does not apply at all, that the requirements of the notice are unreasonable, that the period for compliance is too short, and that the planting specified is inappropriate for the site.

Two tactical points. Appeal grounds about practicality succeed more often than grounds about principle, so evidence about soil, services, shade and available space is worth gathering. And the notice is suspended while the appeal is pending, which is sometimes the reason an appeal is worth making even where the outcome looks unpromising.

An arboricultural report supporting the appeal carries far more weight than assertion. Where the argument is that the position is unplantable, a tree survey recording the constraints and proposing an alternative position gives the inspector something to accept.

Species, size and location of replacements

"Appropriate size and species" is not a free choice. Authorities generally look for a species matching the amenity value of what was lost, at a size that will establish and be visible within a reasonable period.

Bigger is not automatically better. Heavy and extra heavy standards need more aftercare, establish more slowly relative to their size and fail more often in poor soil, whereas a smaller specimen frequently overtakes them within a decade. Where the officer specifies a large size and the ground conditions are poor, say so with evidence and propose an alternative with a maintenance commitment.

Location has to work for the tree at maturity. Replanting a large forest species three metres from a house repeats the problem that led to the original removal, and where subsidence was the issue, the considerations set out under trees and subsidence claims should shape the species choice rather than being revisited in fifteen years.

Where the replacement forms part of a wider scheme, tie the specification into the Landscape Strategy so that one document governs the planting, the protection and the aftercare.

Enforcement and the authority's powers in default

If a replacement notice is not complied with, the authority may enter the land, carry out the planting itself and recover the cost from the owner. That power is used less often than it might be, mainly because officer time is scarce, but it is available and the cost recovered includes the authority's expenses.

Non-compliance also sits on the record. It surfaces on searches, it colours how the authority treats later applications on the same land, and it is an awkward thing for a seller to explain.

The cheapest route through all of this is to plant the replacement without waiting to be asked. Choose a species that suits the position, record the planting with dated photographs, and write to the tree officer confirming what was planted and when. That closes the matter in a single letter.

PlanScope drafts the arboricultural and landscape documents that support a tree-related application from your project details. Enter your postcode to see which reports a site with protected trees is likely to need.

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.