Tree preservation order (TPO) – Woodland TPO – Application for consent for works – Consent refused for clearance of vehicular access and removal of growth below a certain size – Whether defendants taking erroneous approach to application – Whether young saplings falling within definition of “trees” protected by TPO – Whether woodland TPO protecting future trees – Claim dismissed
In 2001, the claimant acquired land adjoining the river Medway with a view to development. The land had formerly been used as a lime and cement works but had, since industrial activity ceased in 1939, been colonised by vegetation and trees of various kinds. The second defendant council refused the claimant’s application for planning permission to use the land as a commercial wharf and subsequently took steps to protect the trees on the site by making a tree preservation order (TPO) in respect of “woodland” under section 198 of the Town and Country Planning Act 1990.
The claimant sought consent under the TPO to clear vehicular access corridors through the site to the river and to remove all scrub, shrubs and saplings with a diameter of less than 75mm at 1.5m above ground level. The second defendants refused consent. Following a public inquiry, the claimant’s appeal to the first defendant secretary of state was refused by an inspector. She took the view that the TPO covered trees at all stages of their lives and its purpose was to safeguard the woodland as a whole. The removal of young trees would not fulfil that purpose because it did not provide for regeneration and would result in the extinguishment of the woodland after the death of the larger trees. She further considered that the removal of smaller growth could not be carried out without harming the remaining woodland.
The claimant brought proceedings, under section 288 of the 1990 Act, to quash the inspector’s decision, contending that she had erred in law in her approach to the appeal. Issues arose as to: (i) what amounted to a “tree” for the purposes of the 1990 Act, in particular whether it included young saplings; and (ii) whether a woodland TPO protected future trees as well as those already growing at the date of the order.
Held: The claim was dismissed.
A woodland TPO protected only “trees” and did not cover plants other than trees, fungi, wildlife habitats or other features of the woodland. Although the order was designed to protect the woodland as a whole, it achieved that protection only by prohibiting unauthorised works to trees within it.
Neither the 1990 Act, nor the Town and Country Planning (Trees) Regulations 1999 made under it, defined “tree”, “woodland” or “sapling”, and no minimum size limitation was indicated on the face of the legislation. Given the existence of explicit size specifications in comparable legislation, such as the felling licence provisions of the Forestry Act 1967, the absence of such limits from the 1990 Act and 1999 Regulations indicated that that legislation intended no comparable limitation. Accordingly, saplings of whatever size were protected by a woodland TPO.
Moreover, such an order applied to future trees as well as those in place at the date of the order. It was intended to protect the undifferentiated mass of trees in the specified area or the woodland as a whole, and that depended upon regeneration or new planting. It would not be sensible to construe the order as protecting only those trees in existence at the date of the order, since they would eventually die and, on such a construction, new orders would be required on an uncertain but periodic basis if the woodland was to continue to be protected.
The inspector had not erred in her approach to the consent application under the TPO and had been entitled, in the exercise of her planning judgment, to conclude that the works proposed by the claimant would be harmful and unjustified.
Charles Mynors (instructed by Kingsley Smith Solicitors) appeared for the claimant; Daniel Kolinsky (instructed by the Treasury Solicitors) appeared for the first defendant; Edmund Robb (instructed by the legal department of Medway Council) appeared for the second defendants.
Sally Dobson, barrister
