In Distinctive Properties (Ascot) Limited v Secretary of State for Communities and Local Government [2015] EWCA Civ 1250; [2015] PLSCS 351, the Court of Appeal ruled in favour of a local authority and a planning inspector over the use of a tree replacement notice requiring landowners to replant more than 1,200 trees to replace those they were accused of destroying, in a case that centred on the legal definition of the word “tree”.
Distinctive Properties (Ascot) Limited, a development company, bought the 6.4 hectare site close to Virginia Water in 2010. In about April or May 2012 an area of about 0.8 hectares was clear-felled, despite there being a tree preservation order (“TPO”) in place. This TPO expressly requires the consent of the Royal Borough of Windsor and Maidenhead before any tree removal can take place. As a result the Royal Borough issued a tree replacement notice (“TRN”) on 15 January 2014 to secure the reinstatement of the woodland in the area concerned. This required the landowner to plant 1,280 trees in total including alder, willow, English oak and beech.
The planning inspector upheld the council’s decision to issue the TRN. Distinctive Properties appealed to the High Court and then the Court of Appeal but both appeals were dismissed.
Distinctive Properties’ appeal was based on their disputation of the number, as there were only 27 tree stumps visible. The Royal Borough countered that the area had been clear-felled with much of the woodland burnt or disposed of and the figure of 1,280 was a reasonable estimate.
The company’s appeal to the court was based on the inclusion of saplings in this number, but Jackson LJ, Gloster LJ and Sir David Keene agreed that woodland includes saplings and small trees and the council was correct to include them in the count. The word “tree” for the purposes of a TPO or TRN includes seedlings and potential trees; although it does not include seeds: “A tree is to be so regarded at all stages of its life, subject to the exclusion of a mere seed.”
The owners now have to comply with the terms of the TRN.
Martha Grekos is a partner and London head of planning and infrastructure at Irwin Mitchell
