Trees protected by a planning condition, not an Order

Trees protected by planning condition are protected by a different mechanism from trees under a Tree Preservation Order, and the difference matters most to whoever owns the site next. Felling a tree covered by an Order is a criminal offence. Felling a tree that a planning condition required you to retain is a breach of condition: no offence at the moment of felling, but a breach that can make the development itself unlawful and that sits on the property until it is resolved. For a conversion investor buying a part-built or recently completed scheme, that is the more awkward of the two problems.

How a condition protects a tree

Section 197 of the Town and Country Planning Act 1990 requires a local planning authority, when granting permission, to secure the preservation or planting of trees by condition wherever appropriate. Authorities discharge that duty in three ways, and the three are often all present on one permission.

A condition requiring development in accordance with the approved plans. Where a tree is shown as retained on an approved site layout, removing it puts the development outside the approved drawings.

A tree protection condition requiring works to be carried out in accordance with an approved arboricultural method statement and tree protection plan, usually with the fencing in place before any plant or equipment arrives on site.

A landscaping condition requiring a scheme of planting and retention to be submitted, approved and then implemented and maintained, commonly with a replacement clause running for five years.

None of these makes the tree a protected tree in the statutory sense. The protection is contractual in feel and procedural in enforcement, and it lasts as long as the condition does, which on a retention condition is indefinitely.

Finding the condition and the plan it refers to

A condition that refers to a drawing is worth nothing until you have the drawing, and this is where most pre-purchase checks stop too early.

Work through the council's planning register in this order.

1. The decision notice, which lists every condition in its final wording.
2. The approved plans list on that notice, with drawing numbers and revision letters.
3. The drawings themselves, in particular the site layout and any tree constraints or tree protection plan.
4. The discharge of conditions decisions, because the scheme actually approved under a landscaping condition may differ from what was submitted with the application.
5. Any section 73 or section 96A decisions, which may have varied the condition or substituted a drawing.

The fifth step catches a common trap. A later non-material amendment can change a layout drawing without anyone updating the tree plan, leaving two approved drawings that disagree about whether a tree stays. Where that has happened, resolve it with the authority in writing before you start work, not afterwards.

The underlying survey matters too. An Arboricultural Impact Assessment prepared to BS 5837:2012 will carry the root protection areas and the construction exclusion zones that the method statement relies on, and those are the numbers an enforcement officer will measure against.

Enforcement: a different mechanism entirely

The contrast with an Order is sharp, and worth setting out plainly.

A breach of condition notice under section 187A is the authority's usual route. There is no appeal to the Planning Inspectorate against one. The only routes are compliance, judicial review of the notice itself, or defending a prosecution in the magistrates' court for failing to comply, which is where the offence arises.

An enforcement notice is the other route, and it is the one that can require remedial steps such as replanting to a specified size and species. It does carry a right of appeal, which is why authorities sometimes prefer it despite the longer timetable.

The consequence investors underestimate is the effect on the permission. If the development has not been carried out in accordance with the approved plans, the authority can take the view that the development is unauthorised rather than merely in breach of one condition. That is a title and lending problem long before it is an enforcement problem. Where a tree also sits under an Order, the two regimes operate at once and consent under one does not excuse the other, as a planning condition and TPO consent conflict shows.

Time limits and why they matter to a buyer

Breach of condition has its own immunity period, and the law changed recently.

Historically a breach of condition became immune after ten years, while unauthorised operational development became immune after four. The Levelling-up and Regeneration Act 2023 aligned the periods at ten years in England, with commencement in April 2024. For a breach that began before that date the older position may still apply, so check which regime your breach falls under rather than assuming ten years.

Two features of the immunity rule catch people out. Immunity runs from the breach, and a continuing failure to comply with a retention condition arguably continues to breach it, which makes the start date arguable. And immunity from enforcement is not the same as lawfulness: a lawful development certificate under section 191 is the only formal confirmation, and a lender's solicitor will usually want one rather than an opinion.

Changing a landscaping condition lawfully

If the tree really does have to go, there is a proper route and it is not expensive.

A section 73 application varies or removes a condition on an existing permission. It cannot change the description of the development, and the authority reconsiders the condition on its merits, so it will want arboricultural justification and replacement planting. Where the only change is substituting an approved drawing, section 96A may handle it as a non-material amendment, although authorities differ on whether removing a retained tree can ever be non-material. Expect the answer to be no on a prominent tree.

Where the landscaping condition contains its own approval mechanism, a revised scheme submitted under that mechanism is sometimes enough. Read the wording. A condition requiring implementation "in accordance with the approved scheme" has no variation mechanism, while one requiring works "in accordance with a scheme to be approved in writing" does.

Build the justification properly. Set out the tree's category and condition from the survey, the reason retention fails, the replacement planting with species, stock size and position, and the long-term canopy outcome. A Landscape Strategy showing the replacement in context carries more weight than a paragraph asserting that the tree is unsafe.

Replacement planting and the five year clause

Most landscaping conditions carry a maintenance and replacement clause: if a tree or shrub dies, is removed or becomes seriously damaged within five years of planting, it must be replaced in the next planting season with the same species and size.

That clause is live for five years after planting, not five years after the permission, and the planting date is often undocumented. Record it. A photograph with a date and an invoice from the landscape contractor settles an argument that is otherwise unwinnable.

The clause also binds successors. Buying a scheme two years after completion means inheriting three years of replacement liability on every tree in the approved scheme, including ones that were planted badly and are already failing.

What to check before you exchange

Five checks, in this order, before the money moves.

Read every condition on the decision notice, not the summary in the sales pack. Pull the approved tree plan and walk the site against it, counting stems. Check whether each retained tree is also under an Order or within a conservation area, because conservation area status brings its own six week notice requirement before any works. Check the register for breach of condition notices, enforcement notices and any open enforcement enquiry. And check the discharge status of every pre-commencement condition, since an undischarged condition that had to be met before work started is a separate and more serious problem.

Where ground works are planned near retained trees, the detailing matters as much as the fencing, and the constraints on retaining walls and level changes in a root protection area apply equally to a conversion as to a new build.

Enter your postcode on PlanScope to see which reports a site with retained trees is likely to need.

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.