The Court of Appeal has rejected a challenge said to raise a fundamental issue for the tree preservation and tree replacement regimes – and in doing so, one judge took on the legal definition of a tree.
While Sir David Keene was not persuaded that a definitive answer was needed in order to dismiss the appeal, he addressed the “what is a tree?” question in his judgment – one which he introduced by quoting Lord Tennyson: “The woods decay, the woods decay and fall.”
Giving his decision in a dispute over land in Sunningdale in Berkshire, which he said was concerned with the consequences of human intervention in the life of woodlands, the judge agreed with Holgate J at the High Court that he was “not at all sure” that the court was required to make a definitive pronouncement as to whether a seedling is a tree for the purposes of the Town and Country Planning Act 1990.
But he continued: “It is not in dispute that a seed is not but that a sapling is. Of course, the word ‘tree’ is to be found in the Act and thus its meaning must be, at least in part, a matter of law. Insofar as it is necessary to determine the meaning, I would accept the approach adopted by Cranston J in Palm Developments, namely that a tree is to be so regarded at all stages of its life, subject to the exclusion of a mere seed.
“A seedling would therefore fall within the statutory term, certainly once it was capable of being identified as of a species which normally takes the form of a tree.
“This would accord with the purpose of a woodland TPO in seeking to protect a woodland over a period of time as trees come and go, as they die and as they are regenerated.”
He concluded: “Therefore, insofar as the council and then the inspector relied upon the inclusion of ‘seedlings/saplings’ when arriving at an estimate of the number of trees on site before the clearance, I am not persuaded that they erred in law.”
Christopher Boyle QC had argued that the issue is “fundamental” to the operation of the tree preservation order (“TPO”) and tree replacement notice (“TRN”) regimes, as the Town and Country Planning Act 1990 does not contain a definition of “tree”.
Landowner Distinctive Properties (Ascot) had challenged an inspector’s decision dismissing its appeal against a TRN requiring them to plant more than 1,200 trees on the site.
The Royal Borough of Windsor and Maidenhead issued the TRN in January 2014, requiring 1,280 trees to be replanted.
But Distinctive claimed its only duty under a TPO covering the land is to replace any trees that have actually been removed, uprooted or destroyed. While a contractor removed vegetation in 2012, it denied uprooting or destroying any trees.
Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government Court of Appeal 8 December 2015
Christopher Boyle QC and Andrew Parkinson (instructed by Blandy and Blandy LLP) for the appellant
Richard Kimblin (instructed by Government Legal Department) for the first respondent
Edmund Robb (instructed by Royal Borough of Windsor and Maidenhead Shared Legal Services) for the second respondent