Which works to a protected tree are exempt from consent

TPO exempt works are narrower than most people believe, and the narrowing happened in 2012. The old formula everyone still quotes, "dead, dying or dangerous", was replaced by the Town and Country Planning (Tree Preservation) (England) Regulations 2012 with two tighter exemptions: works to a dead tree, and works urgently necessary to remove an immediate risk of serious harm. A dying tree is no longer exempt. Nor is a tree that is merely in poor condition, or one you reasonably think might fail at some point.

There is also no size threshold. The 75 millimetre diameter exemption applies to trees in conservation areas under the notice procedure, not to trees protected by a Tree Preservation Order. A sapling named in an Order is as protected as a veteran oak.

The exemption framework and why it is read strictly

The Order prohibits cutting down, topping, lopping, uprooting, wilfully damaging or wilfully destroying a protected tree without the authority's consent. The exemptions in the Regulations carve out specific situations from that prohibition.

They are read strictly for a simple reason: the offence is one where the burden of establishing the exemption falls on the person who relied on it. If you fell a tree and the authority prosecutes, you have to show the exemption applied on the facts as they were at the time, with evidence. The authority does not have to show it did not.

That reverses the instinct most people bring to this. The question is never "did I believe the exemption applied". It is "can I prove it did".

Dead trees and the notice requirement

A dead tree may be cut down or have work done to it without consent, but you must give the authority five working days' written notice beforehand, unless the case is one of urgent necessity.

Dead means dead. No live foliage in the growing season, no cambial activity, no live buds. A tree that has lost half its crown is not dead. A tree that looks dead in February needs looking at again in June.

Use the notice period rather than treating it as a formality. Send the notice with photographs and the arboriculturist's note, and keep the proof of sending. Five working days is also an opportunity: if the tree officer disagrees, you find out before the saw comes out rather than afterwards.

One thing people miss entirely. Removing a tree under the dead tree exemption still triggers the duty to plant a replacement under section 206 of the Town and Country Planning Act 1990, in the same place and as soon as reasonably practicable, unless the authority dispenses with it. The replacement then falls under the same Order. Ask for the duty to be waived in writing if a replacement is not practical.

Removing the immediate risk of serious harm

This is the exemption that gets stretched and the one that gets prosecuted.

Three elements have to be present together. The risk must be of serious harm, meaning injury to a person or real damage to property rather than inconvenience. It must be immediate, meaning now rather than foreseeable. And the works must be no more than those urgently necessary to remove that risk.

That last element matters most. A hanging limb over a footpath creates an immediate risk that is removed by taking down the limb. Felling the whole tree is not covered. An authority faced with a felled tree where a sectional dismantle of one branch would have dealt with the hazard will treat the rest of the works as unauthorised.

Notice is required as soon as practicable after the works where the urgency made prior notice impossible. Do that the same week, in writing, with the evidence attached.

Keep: a dated arboricultural report identifying the defect, photographs from several angles showing the defect and its target, any decay detection output, the climbing inspection notes, the timber itself if you can, and a note of who advised what and when. An invoice from a contractor saying "remove dangerous tree" is not evidence of anything.

Works required by an Act of Parliament

Where another statute obliges the works, consent under the Order is not needed. The common cases are works required under the highways legislation to remove an obstruction or danger to highway users, works by electricity undertakers to keep lines clear, and works under rail or aviation safeguarding powers.

The exemption attaches to the obligation, not to the convenience. A highway authority requiring a specific branch to be cut back engages it. Your own view that a branch is a nuisance to passing traffic does not.

Separate statutory routes also sit alongside the Order rather than inside it. Where larger volumes of timber are involved, a felling licence may be needed from the Forestry Commission, and the way the two regimes interact is covered in woodland orders and felling licences.

Works to prevent or abate a nuisance

This exemption is far narrower than the ordinary meaning of the word suggests. Nuisance here means a nuisance that would succeed in a civil claim, not an annoyance.

Shading a garden is not a nuisance. Leaf fall, blossom, berries, bird droppings, honeydew, blocked gutters and loss of television signal are generally not nuisances. Blocking a view is not a nuisance, and there is no right to light from a tree.

What can amount to nuisance: encroaching roots causing physical damage to a structure or a drain, and overhanging branches, where the common law right to abate exists. Even then the exemption permits only the works necessary to abate, so the answer to encroaching roots is usually a root barrier or targeted root pruning rather than felling.

Subsidence claims are where this is fought. The evidence package an authority and an insurer will expect includes a crack and level monitoring record over at least one full seasonal cycle, soil samples showing shrinkable clay and desiccation, root identification confirming the species, drain surveys to exclude leakage as the cause, and an engineer's opinion on whether underpinning is an alternative. Courts have accepted that abatement works may be justified even where engineering alternatives exist, but the burden remains on the person doing the works. The drainage side of that evidence is covered in trees and drainage: soakaways, sewers and root ingress.

Apply for consent instead wherever there is time. A refusal can be appealed, and the authority may have to pay compensation for loss caused by a refusal in some circumstances.

Fruit trees grown for a crop

Fruit trees are exempt where they are cultivated for the production of fruit in the course of a business or trade, and where the works are in the interests of that production.

Both limbs are required. A commercial orchard pruning for yield is within it. An old apple tree in a domestic garden is not, however much fruit it produces, because there is no business or trade. And felling a commercial fruit tree to clear ground for a building is not work in the interests of fruit production.

Where an orchard is being removed for development, that is a consent application, and often a biodiversity question as well, since traditional orchards are a habitat of their own in the statutory metric.

Evidence to keep before cutting anything

Build the file before the work, not after. A short checklist that has saved people from prosecution:

1. A report from an arboriculturist, dated, naming the tree, the defect and the recommended works, with the reason the works are the minimum necessary.
2. Photographs with a visible date, from several positions, showing the defect and whatever the tree would hit.
3. A copy of the Order and its schedule and map, to confirm the tree is actually included.
4. Written notice to the authority, with proof of sending, before the works for a dead tree and immediately after for an urgent case.
5. The contractor's method statement and a record of what was actually done.
6. The timber, retained on site where practical, for inspection.

Where the works relate to a development proposal rather than a defect, none of this applies and the route is a consent application supported by a Tree Survey and Arboricultural Impact Assessment. Replacement planting then becomes a condition in its own right, with its own specification requirements, as set out in tree planting conditions: species, stock size and establishment.

Contravening an Order is an offence carrying an unlimited fine on summary conviction, and a court can take account of any financial benefit gained. For a tree standing in the way of a profitable extension, that calculation is not in your favour.

Enter your postcode on PlanScope to see which documents a scheme affecting protected trees needs.

This is general guidance, not legal advice; check the position with your local planning authority's tree officer 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.