Tree replacement notice after unlawful removal

If a tree protected by a Tree Preservation Order is removed without consent, the landowner has a legal duty to plant a replacement, and that duty exists whether or not anybody is prosecuted. It sits in section 206 of the Town and Country Planning Act 1990, and it applies to the current owner of the land rather than to whoever cut the tree down.

That last point surprises people who have just bought a house with a conspicuous gap in the garden. The duty runs with the land.

When a replacement duty arises

Section 206 bites in three situations. Where a protected tree is removed, uprooted or destroyed in contravention of the Order. Where a protected tree dies. And where a protected tree is removed, uprooted or destroyed because it was dead or presented an immediate risk of serious harm, relying on the exemption in the Tree Preservation Regulations 2012.

The third one catches most people out. Felling a dead tree is not an offence, but the duty to replace still applies. The authority can dispense with the duty, and the sensible step is to ask it to do so in writing at the time rather than discover the obligation two years later.

For trees in a conservation area that are not individually protected, section 213 applies the same replacement duty where a tree has been removed without the six-week notice that section 211 requires.

The duty is to plant a tree of appropriate size and species at the same place, as soon as reasonably practicable. Where the authority agrees, it can be planted elsewhere on the land. For protected woodland the duty is to replant the same number of trees on or near the land, as the authority may determine.

The notice and the period for compliance

If the duty is not complied with, section 207 lets the local planning authority serve a tree replacement notice. The notice must specify what is to be planted, where and within what period, and it must be served within four years of the date on which the duty should have been performed.

The notice takes effect 28 days after service. The period it allows for planting runs from that date, and authorities usually set it to fall within a planting season rather than at a fixed interval, since planting a standard tree in July is not a recipe for survival.

Where the notice is complied with, the obligation ends. Where it is not, two things follow: the authority can plant in default and recover its costs, and non-compliance is itself enforceable.

A replacement planted under the duty is protected by the original Order in the place of the tree it replaces. Nobody needs to make a new Order for it, and the replacement cannot be removed later without consent.

Species, size and siting of replacements

The statutory words are "a tree of appropriate size and species", which gives the authority latitude and gives the owner room to negotiate.

Appropriate size usually means a nursery stock size that will establish on the site: a standard or selected standard for a garden setting, a feathered tree or whip where the location suits natural establishment. Specifying a semi-mature tree of a size that will not establish without irrigation is a recipe for a second failure, and most tree officers know it.

Species is where a sensible conversation helps. Where the original was a non-native of limited amenity value, or where the original species is now vulnerable to a known pathogen, an alternative is usually accepted. Put the proposal to the tree officer with an arboricultural justification instead of planting first and asking afterwards.

Siting matters because "the same place" is often impossible. Where a building has been constructed, a service run installed or the ground levels changed, propose the nearest position that gives the tree a future and explain the constraint. A tree survey to BS 5837 is the document that supports that argument, since it establishes the rooting environment and the available space.

Appeals against a replacement notice

Section 208 provides an appeal to the Secretary of State, determined through the Planning Inspectorate. The appeal must be made before the notice takes effect, which in practice means within the 28-day window, and lodging it suspends the notice until the appeal is decided.

The grounds available include:

• that the replacement duty does not apply, or has been complied with
• that the duty should be dispensed with in the circumstances
• that the requirements of the notice are unreasonable in their scope or the period allowed
• that planting a replacement is not required in the interests of amenity or to fulfil the purposes of the Order
• that the place specified is unsuitable

Appeals succeed most often on the detail rather than the principle. An argument that no tree should ever be planted is a hard one. An argument that the specified species will not establish in that position, supported by an arboricultural note, is a straightforward one.

Default planting by the authority

Section 209 allows the authority to enter the land, plant the replacement itself and recover its reasonable expenses from the landowner. The costs recoverable include the tree, the planting and the associated works, and they become a civil debt.

Authorities use this power sparingly, because it requires officer time and a contractor. Where they do use it, the owner has lost control of the species, the position and the cost, which is a poor outcome compared with agreeing a replacement voluntarily.

Costs recovered under this power are separate from any fine for the original offence. Neither cancels the other.

Interaction with prosecution for the original removal

Section 210 creates the offences. Cutting down, uprooting or wilfully destroying a protected tree, or wilfully damaging it in a manner likely to destroy it, is an offence, and in England the fine on conviction is unlimited. Lesser contraventions of an Order are also an offence with a lower maximum penalty.

The replacement duty and the prosecution are independent. Paying a fine does not discharge the duty to replant, and planting a replacement does not prevent a prosecution, although it is relevant to how a court views the matter.

Where the removal was carried out by a contractor on the owner's instructions, both may be at risk, and where a developer removed a tree to improve a site's prospects, the authority may also refuse to treat the resulting open space as a benefit. A landscape strategy showing substantial replacement planting is the usual way to begin repairing that position.

Record keeping that avoids the dispute

Most of these disputes are evidential, and the evidence is easy to create before the work and impossible to create afterwards.

1. Photograph the tree from several positions, dated, before any work.
2. Where you intend to rely on the dead or dangerous exemption, obtain a written arboricultural opinion identifying the defect, with photographs.
3. For a tree presenting an immediate risk, give the authority the notice the Regulations require as soon as practicable, and keep proof of sending.
4. For work that is not urgent, apply for consent and wait for the decision rather than relying on an exemption.
5. Keep the contractor's instruction, specification and invoice.
6. If a replacement is agreed, get the species, size, position and planting date confirmed in writing.

The arboricultural opinion is the document that does the most work. A dead tree is a question of fact that an officer can verify from a stump and a photograph, but a dangerous tree is a judgement, and after felling the evidence has gone unless somebody recorded it.

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