Town and country planning – Woodland tree preservation order (TPO) – Tree replacement order – Claimant landowner challenging decision of first defendant secretary of state upholding tree replacement notice – Whether inspector wrongly holding that “tree” included “potential trees” and “seedlings” – Whether notice requiring replacement of more trees than removed – Whether inspector failing to give adequate reasons for decision – Appeal dismissed
The claimant was the freehold owner of land known as Blacknest Park, Whitmore Lane, Sunningdale, Berkshire. The second defendant local authority issued a notice pursuant to section 207 of the Town and Country Planning Act 1990 alleging that, between April and May 2012, an area of woodland covering about 0.8ha had been removed, uprooted or destroyed in contravention of a tree preservation order (TPO). The notice complained that the claimant had failed to comply with the duty under section 206 of the 1990 Act to plant trees to replace those trees which had been removed and required a planting scheme to re-establish the woodland. The notice specified the species to be planted and the planting density, totalling 1,280 trees. The notice allowed 10 months for the claimant to comply.
Although some substantial trees had been removed, the notice only required the planting of saplings or “whips”. The claimant did not criticise the second defendants’ approach requiring young trees to be planted, as opposed to more mature specimens, as an appropriate way of re-establishing the woodland. The notice added a requirement that the trees be maintained in order to promote their establishment, but allowed for a mortality rate of up to 15%.
Following a hearing and a site visit, an inspector appointed by the first defendant dismissed the claimant’s appeal against the tree replacement notice. The claimant appealed against that decision under 289(2) of the 1990 Act. It contended that the inspector had: (i) erred in law by holding that the word “tree” included “potential trees” and “seedlings”; (ii) erred in law by upholding a notice which required more trees to be planted than, according to the evidence, had been removed, uprooted or destroyed; (iii) failed to give adequate reasons for his decision by making a finding on the number of trees cleared from the site but, if he had made such a finding, there was no evidence in support.
Held: The appeal was dismissed.
(1) Whilst a woodland TPO might be designed to protect a woodland as a whole, ie plants other than trees, fungi, wildlife habitats, etc, it did so by imposing controls solely in relation to trees. A woodland TPO applied not only to trees in existence when the order was made, but also to those coming into existence subsequently and was designed to protect the undifferentiated mass of trees in the specified area. That purpose could not be achieved if the order applied only to the trees existing at the date when it was made. As the object was to safeguard the woodland as a whole, which depended upon regeneration or new planting, it had to extend to trees which grew or were planted after the order was made. Saplings of whatever size were protected by a TPO: Palm Developments Ltd v Secretary of State for Communities and Local Government [2008] EWHC 220 (Admin); [2009] PLSCS 53 applied.
On a fair reading, the second defendants’ evidence had not relied on mere seeds as such, but on the likelihood of seedlings and saplings having developed in the relevant area. The inspector had been entitled to produce a decision letter with reasons briefly stated and addressed to an audience familiar with the arguments raised. The claimant had not disagreed with the second defendants’ use of the term “seedlings/saplings and the inspector was entitled to rely upon that uncontroversial position. The words in the decision letter “and other potential trees” was not to be read as referring to specimens which were not trees at all but simply to the unchallenged term used by the second defendants.
(2) There was no burden of proof on the local planning authority to establish facts showing that a breach of the duty under section 206 had occurred or to substantiate the replacement requirements imposed by the notice, including the number of trees to be planted. The burden lay upon the claimant to show that the actual or estimated number of trees removed or destroyed had been less that the replacement number specified in the section 207 notice. A landowner was expected to comply with a TPO and the applicable legislation. If consent was required for works, it had to be obtained. Where trees had been removed or destroyed without the necessary consent, section 206(1) imposed a statutory duty upon the landowner to replant the same number of trees. Where a landowner had given instructions for a wood to be cleared without removing protected trees, he had to be in a position to produce sufficient evidence on what existed before the works began, what works had been carried out, the actual or estimated number of trees removed and where they were located. Those burdens were simply the consequence of being an owner of land subject to a TPO: Nelsovil v Minister of Housing and Local Government [1962] 1 WLR 404 applied.
The second defendants had relied upon standard planting densities as a reasonable estimate of the protected trees lost when part of the woodland was cleared. It could not be said that planting densities had been issued simply for the purpose of achieving a woodland or a desired objective. That material had been used to provide a conservative estimate of the number of trees to be replaced. Read properly in context, the inspector’s reference to the reinstatement of woodland simply acknowledged that the notice required the reinstatement of an estimated number of trees, which had formed part of a woodland TPO.
(3) In a case such as the present, where the subject matter had been destroyed and the inspector was obliged to work from estimates rather than actual numbers of trees lost, there was sufficient evidence to support the conclusions that more trees had been removed and that the second defendants’ approach had been reasonable.
Christopher Boyle QC and Andrew Parkinson (instructed by Blandy & Blandy LLP, of Reading) appeared for the claimant; Richard Kimblin (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not presented
Eileen O’Grady, barrister
