Town and country planning – Local plan – Removal of trees – Court dismissing appellant’s claim for judicial review of decision of respondent local authority to grant planning permission for redevelopment of estate involving felling of trees – Appellant appealing – Whether local plan providing absolute prohibition on felling of mature trees – Appeal dismissed
The first respondent planning authority granted planning permission for the redevelopment of part of the Cressingham Gardens Estate at Trinity Rise/Ropers Walk, Lambeth. The permitted development involved felling four mature trees. The respondent gave permission on the basis that the application and, specifically, the felling of the trees was not contrary to the Lambeth Local Plan.
The appellant, a resident on the estate, challenged the respondent’s decision on the single ground that it had misinterpreted the local plan; and, because of the proposed felling of the trees, the application was contrary to policy Q10 of the plan, which stated that development would not be permitted that resulted in the loss of trees of significant amenity, historic or ecological/habitat conservation value, and required such trees to be retained as part of the site layout (paragraphs B and C(i)).
A deputy judge dismissed the appellant’s challenge and refused to quash the first respondent’s decision, concluding that policy Q10 permitted the removal of any tree, including trees of significant value, provided that its value was replaced: [2022] EWHC 3079 (Admin).
The appellant appealed, contending that, on the proper interpretation of policy Q10, the felling of the trees was contrary to paragraphs B and C(i) of policy Q10 even if it was “imperative” to remove them and suitable replacement planting that satisfied paragraph G of Q10 was secured. The first respondent submitted that paragraph G provided a policy-compliant exception to paragraphs B and C(i).
Held: The appeal was dismissed.
(1) It was well established that the first respondent was required to have regard to “the provisions of the development plan, so far as material to the application” and to “any other material considerations”: section 70(2) of the Town and Country Planning Act 1990. It was also common ground that policy statements in local plans such as those in the present appeal should be interpreted objectively in accordance with the language used, read in their proper context: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69; [2012] PTSR 983 applied.
Policy Q10 was not drafted as clearly as it could have been. If the appellant’s interpretation was correct, it would have been easy to clarify that paragraphs B and C(i) admitted of no exceptions and that paragraph G applied to trees that fell within paragraphs B and C(i) only as a potentially material planning consideration outside Q10. Conversely, if the defendant was correct, it would have been easy to clarify that paragraph G provided an exception to paragraphs B and C(i). Neither of those simple expedients were adopted. Therefore, the court was required to interpret Q10 in accordance with the principles stated in Tesco v Dundee City Council.
(2) Reading policy Q10 as a whole, it was a more natural interpretation to treat the relevant paragraphs, including paragraph G, as delineating and defining the circumstances in which trees (including significant trees) might or might not be removed.
On the assumption that felling any tree within paragraphs B or C(i) would be in breach of policy, the obligation to secure replacement planting under paragraph G arose if it was “imperative” to remove the trees but not otherwise. There seemed no obvious logic that would require replanting to be secured if it was imperative to remove a tree but not if the tree was removed even though it was not imperative to do so.
A more internally coherent approach was to say that paragraph G bowed to the inevitable and permitted the removal of trees where it was “imperative” that they be felled, but only on terms that notionally equivalent benefits were secured by replanting based on the existing benefits of the trees removed, calculated using established cost/benefit tools. The default position for significant trees was established by paragraphs B and C(i): departure from the default position was only permissible within policy in the limited circumstances that it was “imperative” to do so.
(3) The requirement that the removal of the tree was “imperative” established a high bar that acted as an effective limitation upon the paragraph G exception to paragraphs B and C(i). It was not desirable or possible to attempt any further definition or paraphrase of “imperative”, though it might be thought to be broadly synonymous with necessity. “Imperative” was a normal English word that was well understood even if its application might be flexible. That flexibility arose because there might be any number of relevant variables to be considered depending upon the circumstances of the given case. The relevant variables might include: (i) the significance, quality and value of the tree or trees that were to be removed; (ii) whether or not the proposed development could be implemented without removing the tree or trees; (iii) the benefits that were sought to be achieved by the implementation of the scheme; and (iv) whether an alternative scheme could achieve the same or similar benefits without necessitating the removal of the tree or trees. That was not an exhaustive list: the categories of potentially relevant planning considerations were never closed.
(4) (Sir Keith Lindblom, SPT) Development plan policies had to be interpreted with realism and common sense, with a proper understanding of their practical purpose. The court had to keep in mind that that exercise was not the same as construing provisions in a statute or the terms of a contract. The formulation of the policy in question might not be perfect, especially if it was the product of redrafting in successive processes of plan-making. But whatever shortcomings there might be in its drafting, the object in interpreting the policy was always to ascertain the true meaning of its language and the effect it was intended to have in guiding planning decision-making. A policy had to be seen in context. And it was essential to view the policy itself in its entirety, avoiding a disjointed reading of individual criteria or phrases within it, and thus gain a true sense of how its constituent parts fitted with each other and worked together as a whole. The aim was a practical and coherent interpretation, if that was possible.
Richard Harwood KC (instructed by Harrison Grant Ring) appeared for the appellant; Matthew Reed KC (instructed by Lambeth Legal Services) appeared for the first respondent.
Eileen O’Grady, barrister
