Town and country planning – Planning permission – Tree preservation order – Defendant local authority granting planning permission for mixed-use development – Contractors felling trees protected by tree preservation order – Claimant action group challenging defendant’s failure to take enforcement action to prevent felling of protected trees – Whether cutting down of protected trees necessary to implement planning permission – Claim allowed in part
The claimant was a local action group. The defendant was the local planning authority. The interested party was the developer of a mixed-use development known as Stanton Cross, Wellingborough.
In 2017, planning permission had been granted for (amongst other things) the construction of the southern access route (route 2) to serve the development.
In February 2023, contractors for the interested party began felling some of the protected trees towards the south end of Wellingborough Walks. As a result of local protests, those works were temporarily halted.
The contractors halted the works after felling 16 mature lime trees protected by a tree preservation order (TPO) and damaging one other.
An issue arose whether the works to those protected trees were permitted (and what further work would be permitted without express consent or further approval) under the applicable conditions to the planning permission.
The claimant challenged the defendant’s failure to take enforcement action to prevent the felling of trees protected under the TPO.
The key issue was whether (and to what extent) the cutting down of protected trees was “necessary to implement a planning permission” within the exception in regulation 14(a)(vii) of the Town and Country Planning (Tree Preservation) (England) Regulations 2012.
Regulation 14 created exceptions to the general position covered by regulation 13 that consent would be required from the local planning authority to cut down (or undertake any other prohibited activities to) a protected tree.
Held: The claim was allowed in part.
(1) The legislative regime for TPOs was an integral and important part of the comprehensive statutory scheme for land use planning. The power to make TPOs complemented the functions of a local planning authority in making decisions on development proposals, including its power to impose conditions on grants of planning permission.
If the felling of a protected tree was immediately required because otherwise the landowner would be unable to carry out the development, he would not need the local authority’s consent.
But if it were possible to implement the planning permission without such work being undertaken, the work would not be immediately required for the purpose of carrying out the development and it would be unlawful to do it without the necessary consent.
The development could still be carried out under the planning permission but it could not lawfully be carried out in such a way as to negate the protection afforded to the trees by the TPO.
The fact that, had the TPO not been made, the development could have been lawfully carried out in some other way without the local authority’s consent for work to protected trees, was immaterial.
The critical question of fact was whether the development was capable of being carried out without destroying or injuring trees protected by the TPO: Barney-Smith v Tonbridge and Malling Borough Council [2016] EWCA Civ 583; [2016] PLSCS 348 considered.
(2) A key task when considering how regulation 14(a)(vii) applied was to understand what was permitted by the planning permission. To the extent that that necessarily involved the loss of trees, the exception would be applicable.
However, it was not applicable if the planning permission could be carried out in a way which did not necessitate the loss of trees. The grant of planning permission had to be construed properly. In the present case, that involved understanding the extent to which tree loss was required to give effect to the approved plans.
The 2017 planning permission required the developer to submit a plan for approval identifying which trees would be retained before it removed trees to facilitate the construction of route 2. No such plan had been submitted and approved before trees were removed in February 2023. The process of formulating such a plan and seeking approval was now underway. An application had been submitted on 12 April 2024 (yet to be approved) which indicated the extent to which tree loss would be required.
It was necessary for the retention plan to be approved before trees were felled in the process of delivering route 2. The works carried out before such a plan was approved were not authorised by the permission and therefore did not fall within regulation 14(a)(vii).
(3) The relationship of the TPO and the 2017 planning permission was such that some protected trees would be lost because they were located in an area where development was required.
There would be other trees where the exercise of planning judgment was needed as to whether their loss could be avoided.
The landscape focused conditions to the planning permission provided a framework for determining which trees would fall into the category of unavoidable loss (when the relevant planning balance was struck) and which could be retained (with or without protective measures).
At the date of the works, no plan was available showing the extent of the tree loss proposed and that was legally insufficient to enable the interested party to rely on the planning permission exemption in regulation 14 (a)(vii). That provision could not be relied upon until the necessary approval for the plan identifying which trees would be retained had been approved.
(4) Accordingly, the defendant’s initial approach in February 2023 to whether the works were authorised under the statutory undertaker exception in regulation 14 was incorrect.
The planning permission exception for works to protected trees only applied to the extent that it was necessary to carry out the planning consent. If it was possible to implement the consent without loss of trees then the exception did not permit the loss of trees that could be saved.
Planning conditions relating to the trees had to be discharged before the exception applied and before any further felling could take place stating that the defendant could and indeed should exercise its power to ensure that existing trees were appropriately retained where that was reasonably possible.
Further approval was needed for the felling of protected trees. It was now the defendant’s role as local planning authority to determine whether the details submitted under the relevant conditions should be approved.
William Upton KC (instructed by Goodenough Ring Solicitors) appeared for the claimant; Gary Grant (instructed by North Northamptonshire Council) appeared for the defendant; Saira Kabir Sheikh KC (instructed by Sharpe Pritchard) appeared for the interested party.
Eileen O’Grady, barrister
