Tree replacement notices and how to appeal one
The duty to replace a protected tree arises automatically under section 206, and a section 207 notice makes it enforceable. The appeal must be made before the notice takes effect, which can be 28 days after service.
A tree replacement notice is the council's way of enforcing the duty to replace a protected tree that has been removed. The duty arises automatically under section 206 of the Town and Country Planning Act 1990 when a tree covered by a Tree Preservation Order is removed, uprooted or destroyed in contravention of the Order, and also where such a tree is removed because it was dead or presented an immediate risk. The notice under section 207 is what turns that duty into something enforceable, and there is a statutory right of appeal with a short deadline.
Landlords who inherit a site with a stump and no paperwork are the people this catches most often, because the duty runs with the land.
The duty to replace, and when it arises
Section 206 imposes the duty on the landowner. It requires a tree of an appropriate size and species to be planted at the same place as soon as reasonably practicable.
Three points that determine whether the duty applies at all:
- It applies where a protected tree is removed in contravention of the Order, which means without consent or outside the scope of a consent.
- It also applies where the tree was removed under the exemption for trees that are dead or present an immediate risk of serious harm, because that exemption removes the need for consent rather than the duty to replace.
- It does not apply where consent was granted for removal and the authority chose not to impose a replanting condition.
The duty attaches to the land rather than to the person who felled the tree. A buyer who acquires a site where a protected tree was removed two years ago inherits it, which is why a pre-acquisition check on the site's tree history matters as much as a check on its planning history.
For woodlands covered by an Order the duty works differently. Replacement is of the same number of trees, on or near the land where the felled trees stood, or on such other land as the authority agrees, and in places approved by the authority. That gives more room for negotiation than the same-place requirement for individual trees.
Trees in conservation areas that are not covered by an Order are protected by the six-week notice requirement, and section 213 applies an equivalent replacement duty where such a tree is removed without the required notice.
When the authority serves a notice
The authority has a window in which to act. A notice under section 207 must be served within four years from the date of the failure to comply with the duty, which means four years from the point at which planting should reasonably have happened rather than from the felling.
The notice must specify what has to be planted, where, and the period within which it must be done. It takes effect at the end of a period specified in it, which must be at least 28 days from service.
Read the notice carefully for three things:
- The tree it relates to, identified precisely enough to be certain which tree is meant.
- The species, size and position required, since those are the grounds most often successfully challenged.
- The date on which it takes effect, because that date governs the appeal deadline.
Councils vary in how quickly they act. Some serve within weeks of discovering a loss, and others take a year or more, by which time the site may have changed hands.
Species, size and position requirements
The statutory test is a tree of an appropriate size and species. That gives the authority latitude and gives an appellant an argument where the specification is unrealistic.
| Requirement | Reasonable | Open to challenge |
|---|---|---|
| Species | The same species, or a similar species suited to the location | A species unsuited to the soil, exposure or space available |
| Size | Nursery stock of a size that will establish, such as a standard or heavy standard | A semi-mature specimen where establishment is doubtful and cost is disproportionate |
| Position | The same place, or as near as practicable | A position that conflicts with a building, drainage run or access that has since been built lawfully |
| Timing | The next available planting season | A deadline falling outside the planting season |
The position requirement is where most genuine difficulty arises. Where a lawful development has since been built on the original position, planting there is impossible, and the answer is a negotiated alternative rather than an appeal on principle. Councils are generally receptive to that conversation if it happens before the notice is served.
A short arboricultural note supporting the alternative, with a soil and space assessment and a species justification, does more than correspondence. A Tree Survey to BS 5837 on the wider site is worth having where several trees are involved and the replacement scheme has to work as a whole.
The appeal route and its deadline
An appeal lies to the Secretary of State, determined by the Planning Inspectorate, under section 208. It must be made before the notice takes effect, which means before the date specified in the notice, and that date can be as little as 28 days after service.
That is the single most important practical point in this subject. Miss the date and the notice takes effect, the duty becomes enforceable, and the only remaining route is negotiation with the authority.
The appeal is normally dealt with by written representations. Prepare:
- A copy of the notice and the Order, with the tree identified on a plan.
- The grounds of appeal, stated separately and each argued.
- Photographs of the site before and after removal, with dates where available.
- Any arboricultural report relied on, including any report that justified removal on safety grounds.
- Evidence of the tree's condition where the dead or dangerous exemption is in issue.
- A proposed alternative where the appeal is about size, species or position rather than the duty itself.
Grounds that succeed
Section 208 sets out the grounds available. In practice appeals turn on a small number of arguments.
That the duty does not apply. The tree was not protected, or was outside the Order's area, or was exempt for another reason, or consent had been granted without a replanting requirement.
That the duty has been complied with. A replacement has already been planted, of appropriate size and species, in the right place. Photographs and a planting invoice usually settle this.
That the requirement is unreasonable in the circumstances. This covers a disproportionate specification, such as a semi-mature tree where a standard would establish better, or a position that cannot physically accommodate the species named.
That planting is not required in the interests of amenity, or would be contrary to the practice of good forestry. This works where the original tree contributed little visible amenity, though authorities defend amenity findings firmly and this ground alone rarely carries an appeal.
Arguments that do not succeed: that the tree was felled by a contractor without instructions, that the previous owner did it, or that the cost is inconvenient. The duty is on the landowner and it is not fault-based.
If the notice is ignored
Where a notice takes effect and is not complied with, section 209 allows the authority to enter the land, plant the replacement itself, and recover its reasonable expenses from the landowner. Those costs include the tree, the planting and the authority's own time.
There is also a practical consequence at sale. An outstanding notice will be revealed by a local search, and a buyer will either require compliance before completion or a retention against the cost.
Two related points. Felling protected trees in contravention of an Order is itself an offence, prosecuted separately from the replacement duty, with higher penalties where the tree was likely to have a lasting effect on amenity. And where the works also needed a felling licence, planning protection is not the only control, as our note on woodland felling licences and why planning is not enough explains.
Negotiating an alternative planting scheme
Most of these cases end in agreement rather than at appeal, and the approach that works is to arrive with a scheme rather than an objection.
Offer a specific alternative: species, stock size, position shown on a plan, planting season, an establishment maintenance commitment of three to five years, and a replacement undertaking if the tree fails. Where the original position is unavailable, propose more than one replacement tree elsewhere on the site as a trade for the position change, which authorities often accept because canopy is the underlying interest.
Then get the agreement in writing before the notice's effective date, or ask the authority in writing to extend it while the alternative is considered. Verbal comfort from an officer does not stop the clock. And where pruning rather than felling is in issue, the specification matters just as much, as our note on writing pruning specifications properly sets out.
This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.
Frequently asked questions
Does the replacement duty apply if the tree was dead?
Yes. The exemption for trees that are dead or present an immediate risk of serious harm removes the need for consent to remove them, not the duty to replace. That surprises owners who felled a dead tree properly and then received a notice, so keep the arboricultural evidence that justified the removal.
How long does the council have to serve a notice?
Four years from the date of the failure to comply with the duty, which runs from the point at which planting should reasonably have happened rather than from the felling itself. Some authorities act within weeks of discovering a loss and others take much longer, by which time the land may have changed hands.
What is the deadline for appealing?
The appeal must be made before the notice takes effect, and the notice specifies that date, which must be at least 28 days after service. Miss it and the duty becomes enforceable with no appeal route left. Diary the date as soon as the notice arrives and do not rely on verbal assurances from an officer.
Which grounds of appeal tend to work?
That the duty does not apply, that it has already been complied with, or that the specific requirement is unreasonable in the circumstances, for instance a semi-mature specimen where a standard would establish better, or a position now occupied by a lawful building. Blaming a contractor or a previous owner does not assist, because the duty is not fault-based.
What happens if the notice is not complied with?
Under section 209 the authority can enter the land, plant the replacement itself and recover its reasonable expenses from the landowner, including the tree, the planting and its own time. An outstanding notice also shows on a local search, so a buyer will require compliance or a retention before completion.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.