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Articles Environmental Law 12th Aug 2021

Tree Felling and Hedgerow Removal

Tree Felling and Hedgerow Removal. This briefing is relevant to anyone who owns, develops or manages land.

Freeths Environment Team have produced this guidance note outlining the restrictions in place and procedures to be followed when felling trees or removing hedgerows on land.

Please note that this note only forms a brief summary of the position and the key considerations. Please therefore contact a member of our Environment Team if you have any queries and/or require advice.

Guidance Note

Planning permission

The existence of planning permission is relevant when considering whether trees can be felled or hedgerows can be removed.

If you have full planning permission, then you can fell trees or remove hedgerows (within the redline) where it is necessary to implement the planning permission, subject to:
• Discharging any relevant planning conditions; and
• Complying with the criminal law in relation to protected species (i.e. bats, dormice, nesting birds and badgers). In some cases a protected species licence will be needed.

However, if you only have outline planning permission or no planning permission at all, then there are additional considerations, namely

1. Is a Forestry Commission felling licence required?
2. Are there any Tree Preservation Orders (“TPOs”)?
3. Does a hedgerow removal notice need to be served?
4. Is a protected species licence needed (e.g. bats, dormice, nesting birds, badgers)?

In all cases, you should also consider the EIA (Forestry) (England and Wales) Regulations 1999 (see below)

Please note that there is a slightly different process for trees within conservation areas – please see the separate section below.

1. Felling licences for felling trees (prior to full planning)
A Forestry Commission felling licence is required to fell trees, unless an exception applies. The most common exemptions to the need for a licence for felling trees include:
• 5m3 trees can be felled per calendar quarter
• Small trees i.e. diameter 8cm or less (at 1.3m) can be felled
• Trees can be felled to prevent real (evidenced) danger
• Fruit trees can be felled
• Trees growing in garden / designated public open space can be felled
• You have full planning permission

If no exemption applies to the tree(s) in question, then a felling licence is needed before felling any trees – failure to do so is a criminal offence and can be subject to a fine (see below) and/or a “restocking notice”.

2. TPOs (prior to full planning)
TPOs can apply to a tree, a group of trees, or woodlands. If there is a TPO in place, then the local planning authority’s (“LPA’s”) written consent is required to fell, prune, damage or destroy the tree(s) or cause or permit the same. There are some exceptions to the need to obtain consent from the LPA, namely:

• Full planning permission – tree(s) can be felled etc. where it is necessary to implement a planning permission without the need to obtain consent from the LPA or give notice to the LPA;
• The tree is dead – the LPA’s consent is not required to fell etc. tree(s) but must still give notice to the LPA that tree(s) will be felled, pruned etc.; and
• Risk of serious harm – again, the LPA’s consent is not required, but must still give notice to the LPA.

3. Hedgerow removal notice (prior to full planning)
If you are removing a hedgerow that: (i) is located on or next to specific categories of land (including nature conservation sites for example); (ii) measures more than 20m in length1 (or less than 20m but meets another hedge
at each end); or (iii) qualifies as “important” (and is therefore protected), then you must serve a written ‘hedgerow removal notice’ on the LPA and wait for their response. The LPA has 42 days to respond to this notice and, if no
response is received from the LPA within this period, then the hedgerow can be removed. Failure to give the LPA notice to remove a hedgerow is a criminal offence and is subject to fines.

4. Protected species
In respect of each of the above, protected species must always be considered.

Specifics for trees in conservation areas2 – section 211 notices

Section 211 TCPA 1990 requires people to notify the LPA six weeks3 before carrying out works on trees in conservation areas by using a section 211 notice, unless an exception applies4. Section 211 only applies to trees in conservation areas that are not protected by a TPO.

The LPA can deal with a section 211 notice in three ways. It may:

1. Make a TPO if justified in the interests of amenity (preferably within 6 weeks of the notice);
2. Decide not to make a TPO and inform the notice-giver that the works can go ahead; or
3. Decide not to make a TPO and allow the six-week notice period to end.

The works can go ahead either following the expiry of the six-week notice period or earlier if the LPA gives consent and the works must be done within two years of the date of the notice.

The LPA may treat a planning application for development in a conservation area that includes specified tree work as a section 211 notice if the applicant clearly states that it should be considered as such.

Additional consideration – EIA (Forestry) (England and Wales) Regulations 1999

In addition to the above, regard must be given to The Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999, which control tree felling in certain circumstances including converting the land to another land use.

Consequences for failing to follow the correct procedures

• Criminal offences e.g. felling trees without a licence is a criminal offence and the maximum fine payable on conviction of the offence is £2,500; protected species criminal offences incur unlimited fines.
• The Forestry Commission may also issue a ‘restocking notice’, which is a requirement to replant the trees that have been illegally felled and maintain the replacement trees to for up to 10 years.
• Further consequences include problems with the LPA and objectors (and potential reputational damage).

1. This can include a hedge that has gaps in it, provided that the gaps are less than 20m in length.
2. Conservation areas are parts of localities designated under the Planning (Listed Buildings and Conservation Areas) Act 1990 as areas of special architectural or historic interest, the character or appearance of which is desirable to preserve or enhance.
3. Please note that the notice period is different for dead trees.
4. Exceptions include cutting down/topping/lopping/uprooting trees with a diameter of 75mm or less, or cutting down/uprooting trees with a diameter of 100mm or less for the sole purpose of improving the growth of other trees (e.g. thinning as part of forestry operations)

Please do not hesitate to contact Penny Simpson or Grace Stirrat if you have any queries in respect of the above or would like any further information.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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