Interpretation of planning policies must be internally coherent and realistic.
The Court of Appeal has dismissed an appeal against the respondent’s decision to grant planning permission for development which included felling four mature trees in R (on the application of Plant) v London Borough of Lambeth and others [2023] EWCA Civ 809; [2023] PLSCS 121.
The permission concerned the redevelopment of part of the Cressingham Gardens Estate and was granted because the application and the felling of the trees was not contrary to the Lambeth Local Plan. Andrew Plant challenged the decision arguing that the respondent had misunderstood the LLP and that because of the felling of the trees the application was contrary to the relevant policy.
The policy was Q10 to the LLP which provided that proposals for new development must take account of existing trees on the site and adjoining land; that development resulting in the loss of trees of significant amenity, historic or ecological conservation value would not be permitted and that where it was imperative to remove trees adequate replacement planting would be secured based on the existing value of the benefits of the trees removed.
Plant’s challenge to the permission was dismissed in December 2022. The issue on appeal was whether the felling of the trees was contrary to the policy or the requirement for adequate replacement planting provided a policy compliant exception.
The redevelopment of the estate was authorised by the respondent in 2016. The application involved replacing 12 homes of 59 rooms with 20 homes of 70 rooms and could not be achieved without felling four mature trees, three of which were considered to be of significant amenity value. The respondent’s planning report recommended approval of the application, which represented optimum use of the site, subject to replacement planting in its vicinity of £182,564, the value of the existing trees.
The Court of Appeal acknowledged that Q10 was not drafted as well or as clearly as it could have been. However, Plant’s submissions meant that Q10 would always require the retention of significant trees whatever justification there might be for their removal and gave no meaning to the word “imperative”. The respondent’s proposed interpretation provided a more natural interpretation of Q10 as delineating and defining the circumstances in which trees may or may not be removed. If an evaluative process in which all relevant planning considerations are taken into account concludes that it is necessary for a tree to be removed the replacement planting provisions applied. This was consistent with both the London Plan and the National Planning Policy Framework.
Louise Clark is a property law consultant and mediator
