When does a planning permission allow felling of trees without a Forestry Commission felling licence?
Felling licences
Tree felling is a legally controlled activity across England and Wales, and in most cases a felling licence is required under the Forestry Act 1967 (“FA 1967”) before removing growing trees.
Felling a growing tree without a licence, or where no exemption applies, is a criminal offence punishable by a fine. The regulator (the Forestry Commission for felling in England, and Natural Resources Wales for felling in Wales) may also, or alternatively, choose to issue a restocking notice requiring the landowner or occupier to replant the area with trees and maintain them in line with good forestry practice for up to ten years.
Statutory exemptions for felling licences
The key statutory exceptions to the requirement for a felling licence include:
Trees with a diameter not exceeding 8 centimetres (or 15 centimetres for coppice or underwood)
Fruit trees or trees standing or growing on land comprised in an orchard, garden, churchyard, or public open space
The topping or lopping of trees or the trimming or laying of hedges
Felling on occupied land to improve the growth of other trees where the diameter does not exceed 10 centimetres, or where the aggregate cubic content felled without a licence does not exceed 5 cubic metres per quarter (and not more than 2 cubic metres sold per quarter, unless authorised)
Felling for the prevention of danger or nuisance, compliance with statutory obligations, and certain utility operations; and
Felling immediately required for carrying out development authorised by planning permission
The narrow planning exemption for felling licences and when can it be used?
As noted in the final bullet point above there is an exemption from the need for a felling licence where the felling is “immediately required for carrying out development authorised by planning permission” (s.9(4)(d) of the FA 1967)
Careful consideration is needed to ensure proper application of this exemption. Recent case law and Forestry Commission Guidance 1 give a useful reminder of these key elements.
There is no general / wide planning exemption from the need for a felling licence – there is only the narrow exemption above
Planning permission does not entirely override the restrictions on tree felling - the statutory regimes controlling forestry activities and land use planning operate together and are not subject to any ‘legislative hierarchy’. This means that planning permission or wider planning objectives cannot be relied upon or used to circumvent the felling licence regime outside the legislative position set out in the FA 1967.2
The narrow planning exemption cannot be used retrospectively
To rely on the exemption you have to get planning permission first and then fell, not the other way around. In other words the exemption cannot apply retrospectively following the grant of planning permission after the felling of the trees. 3 It is only when the planning consent exists that the trees which need to be removed can be identified, and only at such point can it be shown that the removal of those trees is ‘immediately required’ for the carrying out of the development.
Outline planning permission is not enough for reliance on the narrow planning exemption
The Forestry Commission Guidance makes it clear that outline planning permission (without the necessary approval of reserved matters) is insufficient to establish that the felling of the trees is “immediately required” for the purposes of development and therefore a felling licence would be required.
There must be a direct link between the felling and the planning permission for reliance on the narrow planning exemption
The use of the narrow planning exemption must be clearly aligned with the planning permission. At least one of the following three criteria must be met:
Specificity: The trees subject to the planning permission exemption must be explicitly identified in the planning consent as being permitted for removal
Location: the trees must stand within the footprint of the proposed development, or
Necessity: removal of the trees must be necessary in order to carry out the proposed development (e.g. they block an access route to which there is no alternative or lie in such close proximity to the proposed development that they prevent the carrying out of that development)
Importantly the Forestry Commission Guidance clarifies that the “exception does not simply extend to all trees within the ‘red line’ boundary of the fully approved proposed development”. A careful assessment must therefore be carried out to determine those trees within the footprint of the proposed development or those which must be removed by necessity for the delivery of the development if the trees question are not expressly identified in the permission as permitted for removal.
How we can help
Our Environmental Law team can provide further advice on the requirements of felling licences in respect of new development (including the application of the other exceptions to the regime). Early engagement can ensure that developers do not fall short of the felling licence requirements
Footnotes
1 See Tree felling: Getting permission - updated 2025
2 See R. (on the application of Smar Holdings Ltd) v Secretary of State for Environment, Food and Rural Affairs, [2025] EWCA Civ 1041 and Arnold White Estates Ltd v Forestry Commission [2022] EWCA Civ 1304
3 See R. (on the application of Smar Holdings Ltd) v Secretary of State for Environment, Food and Rural Affairs, [2025] EWCA Civ 1041, para. 90 and Arnold White Estates Ltd v Forestry Commission [2022] EWCA Civ 1304, para.74
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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