What a tree preservation order actually protects
A tree preservation order covers roots and overhanging branches as well as the trunk. Here is the scope of control, the four order types and who carries the risk.
A tree preservation order protects the whole tree. What a TPO protects extends well past the trunk you can see, to the roots underground, every branch including the ones hanging over your garden, and the tree's continued survival. Cutting down, topping, lopping, uprooting, wilfully damaging or wilfully destroying a protected tree without the council's written consent is an offence under section 210 of the Town and Country Planning Act 1990.
That definition of protection is wider than most homeowners expect, and the part that catches people is the roots. A trench for a new drain, a concrete raft for a garden room, or a load of hardcore compacted over the rooting area can all amount to wilful damage even though nothing was cut.
The works a TPO controls
Section 198 allows a local planning authority to make an order prohibiting the cutting down, topping, lopping, uprooting, wilful damage and wilful destruction of trees, and requiring replanting.
Read those six terms literally and you have the scope. Felling is obvious. Topping and lopping cover any pruning, including crown reduction, crown lifting and the removal of a single limb. Uprooting covers grubbing out a stump where the tree is still alive. Wilful damage and wilful destruction catch everything else that is deliberate, from bark stripping to ring barking to severing a major root during excavation.
Consent is needed before the work, not after. The application is free, it goes to the council's tree officer, and the authority has eight weeks to decide it. Refusals carry a right of appeal to the Planning Inspectorate.
One point that surprises people: there is no minimum size. A young tree planted last season can be covered by an order, and the courts have taken the view that a tree is anything an ordinary person would call a tree. Hedges, bushes and shrubs sit outside the TPO regime altogether, and countryside hedgerows are dealt with under separate hedgerow regulations.
Roots, branches and overhanging growth
At common law you may cut back branches and roots that cross your boundary, as far as the boundary line. A TPO displaces that right. Once the tree is protected, cutting back an overhanging branch is lopping, and lopping needs consent.
The 2012 Regulations do provide an exemption for works necessary to prevent or abate a nuisance. Nuisance there carries its legal meaning, which is narrower than inconvenience. Shade, leaf fall, honeydew, birds and a view you would rather not lose do not qualify. Structural damage from roots, or branches physically bearing on a building, may do.
So the safe sequence for an overhanging protected tree is to apply for consent, explain the problem, and let the tree officer specify the works. Councils are usually pragmatic about crown lifting over a garden. They are not pragmatic about a contractor who has already reduced a crown by a third.
Roots deserve their own paragraph in any application. Where works are planned near a protected tree, the root protection area should be calculated and shown on the drawings, and the construction method should follow BS 5837:2012. The tree survey and arboricultural impact assessment prepared to that standard is what the council will measure your proposal against, and councils usually expect a suitably qualified author.
Individual, group, woodland and area orders
Orders come in four forms, and the form changes what is covered.
| Order type | What it covers | Practical effect |
|---|---|---|
| Individual (T) | A single named tree, mapped by a dot | Clear and easy to check |
| Group (G) | A defined group of trees, listed by species and number | The group is protected as a unit, so losing one tree matters |
| Woodland (W) | All trees within the mapped woodland | Includes trees that grow up after the order was made |
| Area (A) | Trees within the mapped area at the date the order was made | Later self seeded trees are not protected |
The area classification is the one that causes arguments. It protects the trees that stood there on the date of the order, so a 15 year old sycamore in an area order from 1978 may well be outside it. Establishing that takes evidence, usually historic aerial imagery, and the council is entitled to disagree.
Woodland orders work the other way. Everything in the woodland is covered, including natural regeneration, and normal woodland management still needs consent unless a felling licence covers it.
Wilful damage, destruction and what follows
Section 210 creates two offences. The serious one covers cutting down, uprooting, wilfully destroying, or wilfully damaging, topping or lopping a tree in a way likely to destroy it. The lesser one covers any other contravention of the order.
For the serious offence the fine in the magistrates' court is unlimited, and the court is required to have regard to any financial benefit that has accrued or is likely to accrue from the offence. That last provision exists precisely because the commercial benefit of removing a tree from a development site can dwarf any conventional fine.
Councils do prosecute, and the cases that get prosecuted tend to share features: a contractor engaged by a developer, works carried out at a weekend, and a tree whose removal unlocks value. Our note on the penalties for damaging a protected tree sets out how those cases are usually run.
There is also a replacement duty. Where a protected tree is removed in contravention of an order, the landowner has a duty to plant a replacement of appropriate size and species in the same place, and the council can enforce that with a tree replacement notice. The duty runs with the land, so it passes to a purchaser.
Checking whether a tree is protected
Ask the council. Every authority keeps a register of TPOs, most publish a constraints map, and tree officers will normally confirm the position by email within a few days. Keep the reply.
Do not rely on a solicitor's search alone if the transaction is old, and do not rely on the absence of a marker on an online map, because digitisation of older orders is uneven. Where a tree looks significant and sits in a conservation area, remember the separate control: section 211 requires six weeks' written notice to the council before works to most trees in a conservation area, which gives the authority time to make an order.
The practical rule for anyone buying a house with a mature garden is to check before exchange, not before felling.
Split ownership and who carries the risk
The tree belongs to the owner of the land on which the trunk stands, even where the crown and roots extend across three gardens. That owner is responsible for its condition in civil law.
The criminal liability under section 210 is wider. It falls on whoever carries out or causes the works, which means a contractor, a neighbour or a tenant can be prosecuted alongside or instead of the owner. A homeowner who instructs a tree surgeon without checking the TPO position is exposed, and so is the tree surgeon.
Where a boundary tree is shared, agree in writing who applies for consent and who pays for the works before anyone climbs anything. The issues around boundary trees and shared ownership are worth resolving early rather than in correspondence afterwards.
This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.
If you are planning work near a protected tree, enter the postcode on PlanScope to see which arboricultural and planning documents your project is likely to need. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
Can I cut back branches of a protected tree that overhang my garden?
Not without consent. The common law right to cut back to the boundary is displaced by the order, because pruning is lopping. There is an exemption for works needed to abate a nuisance in the legal sense, and shade, leaf fall and birds do not meet it. Apply and let the tree officer specify the works.
Does a TPO protect tree roots?
Yes. Wilful damage to a protected tree includes severing major roots, compacting the rooting area under stored materials or hardcore, and excavating within the root protection area. Works near a protected tree should follow BS 5837:2012, with the root protection area calculated and shown on the drawings.
Are hedges covered by tree preservation orders?
No. Orders apply to trees, so hedges, bushes and shrubs sit outside the regime. Countryside hedgerows are dealt with under separate hedgerow regulations, and high evergreen hedges between neighbours are handled by councils under a different complaints procedure entirely.
What is the difference between a woodland order and an area order?
A woodland order covers all trees in the mapped woodland, including natural regeneration that grows up after the order was made. An area order only covers the trees that stood within the mapped area on the date the order was made, so later self seeded trees fall outside it.
What is the penalty for felling a protected tree?
Under section 210 of the Town and Country Planning Act 1990 the fine in the magistrates' court is unlimited for cutting down, uprooting or destroying a protected tree, and the court must have regard to any financial benefit arising. A duty to plant a replacement also applies and runs with the land.
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.