Town and country planning – Tree preservation order (TPO) – Tree replacement notice – Sections 206 and 207 of Town and Country Planning Act 1990 – Appellant clearing woodland covered by TPO – Planning inspector upholding tree replacement notice issued by local planning authority – Whether notice defective in requiring planting of more trees than had been removed – Meaning of “tree” – Whether properly including seedlings as well as saplings and larger trees – Appeal dismissed
The appellant owned land in Sunningdale, Berkshire, which included two areas of woodland which were protected by a tree preservation order (TPO). In 2012, roughly 0.8 ha of the woodland was clear-felled by contractors acting for the appellant. The second respondent council issued a tree replacement notice, under section 207 of the Town and Country Planning Act 1990, requiring the appellant to comply with its duty under section 206 of the Act to plant another tree for each tree removed. The notice specified the species to be planted and the planting density, totalling 1,280 trees. Although some substantial trees had been removed, the notice only required the planting of saplings or “whips” rather than more mature specimens.
The appellant appealed against the notice, contending that it was defective since it required more trees to be planted than, gauging from the number of visible tree stumps, had actually been removed. Dismissing the appeal, the first respondent’s planning inspector held that it was wrong to concentrate on the number of stumps identified because that failed to have regard to any “saplings or other potential trees” that might well have been removed as part of the clearance works. He instead accepted the second respondents’ estimate of how many trees, including seedlings and saplings, had been present, based on standard planting densities; in doing so, he took the view that the use of standard planting densities was necessary in order to achieve the purpose of securing the reinstatement of woodland in the area.
The appellant’s appeal, under section 289 of the 1990 Act, was rejected in the court below. The judge held that the inspector had not erred in his approach to what was a tree and had been entitled to accept the council’s estimate of the number of trees lost based on standard planting densities, which was the best evidence available to him: see [2015] EWHC 729 (Admin); [2015] PLSCS 96.
The appellant appealed. He contended that the inspector had erred in relation to the meaning of trees so far as he had considered that seedlings and “potential trees” could be included in the number of trees. He submitted that the inspector had failed to make a proper estimate of the number of trees lost, and had wrongly regarded the purpose of a tree replacement notice as being to replace woodland, rather a specific number of lost trees.
Held: The appeal was dismissed.
(1) A tree replacement notice could not require more trees to be replaced than had been removed or destroyed. However, there could be problems in arriving at a figure for the number of trees lost in the situation where protected woodland had been cleared. Moreover, because a TPO made in respect of a woodland was seeking to protect the woodland in the interests of amenity, and did not specify individual trees, it would often by impossible or nearly impossible to determine precisely how many trees existed within the woodland even at the time of the making of the TPO. Such uncertainty increased over time because the number of trees in the woodland would vary from year to year and from season to season; the TPO protected not only those trees existing at the time of the order but also those which came into existence subsequently. It would therefore often be necessary simply to arrive at an estimate for the number of trees lost, rather than an accurate count, and any estimate of number would often have to be a crude one. It was the landowner who was in the best position to provide reliable evidence to assist in making such an estimate, and on whom the burden of proof fell to establish that the number of trees in a tree replacement order exceeded the number of trees lost.
The inspector had not erred in his approach to the number of trees. While he had not set out in express terms a number of such trees, his decision, read fairly and in context, was that he accepted the second respondents’ evidence on that issue and was accepting the standard planting density as an estimate or proxy for the number of trees lost.
(2) In accepting that evidence, the inspector had not erred in his view of what could constitute a “tree” for the purposes of the 1990 Act. Reading his decision in a straightforward way, he was using the expression “saplings and other potential trees” to reflect in slightly different language second respondents’ evidence about seedlings and saplings. He had been entitled to rely on the inclusion of both seedlings and saplings when arriving at an estimate of the number of trees on site before the clearance. The 1990 Act contained no definition of a “tree”. The proper view that a “tree” was 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, at least once it was capable of being identified as of a species which normally took the form of a tree. That approach accorded with the purpose of a woodland TPO in seeking to protect a woodland over a period of time as trees came and went, died and were regenerated. To argue that a seedling was not a “tree” involved a bare assertion rather than an argument based on any coherent principle: Palm Development Ltd v Secretary of State [2009] EWHC 220 (Admin); [2009] PLSCS 53 applied.
While the word “tree” had to have the same meaning regardless of whether the TPO in question was made in respect of a woodland or identified individual trees, the above interpretation did not open up the possibility of a local planning authority seeking to impose a TPO on an individual seedling “in the interests of amenity”. Such an attempt would fail, not because the seedling fell outside the legal concept of a tree, but because it would be perverse of the authority to seek to use their power in that way.
(3) The inspector had not erred so far as he had regarded the purpose of a tree replacement notice as being to replace woodland. While such a notice could only seek the replacement of the same number of trees as had been lost, and could not require shrubs, fungi or wild flowers to be replaced, the ultimate objective of issuing of such a notice in the context of a woodland could properly described as the preservation of woodlands in the interests of amenity. That was the purpose of a woodland TPO. The inspector had not erred in law in referring to reinstating the woodland; his reference could properly be read as implying that the method by which the objective would be achieved was by replacing the lost trees.
Christopher Boyle QC and Andrew Parkinson (instructed by Blandy & Blandy LLP, of Reading) appeared for the appellant; Richard Kimblin (instructed by the Government Legal Department) appeared for the first respondent; Edmund Robb (instructed by the legal department of Windsor and Maidenhead Royal Borough Council) appeared for the second respondents.
Sally Dobson, barrister
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