Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 19 March 2015 |
| Neutral Citation | [2015] EWHC 729 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 March 2015 |
| Docket Number | Case No: CO/4252/2014 |
[2015] EWHC 729 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holgate
Case No: CO/4252/2014
Christopher Boyle QC and Andrew Parkinson (instructed by Blandy and Blandy LLP) for the Claimant
Richard Kimblin (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 10th March 2015
Introduction
The Claimant, Distinctive Properties (Ascot) Ltd, appeals under s 289(2) of the Town and County Planning Act 1990 (TCPA 1990) against the decision of an Inspector given on behalf of the First Respondent, the Secretary of State for Communities and Local Government, by letter dated 15 August 2014. The appeal is brought with the permission of Gilbart J granted on 14 November 2014.
The Inspector dismissed the Claimant's appeal under section 208 against a tree replacement notice issued on 15 January 2014 by the Second Respondent, the Royal Borough of Windsor and Maidenhead ("the Council") pursuant to section 207. The Inspector conducted a hearing and a site visit on 3 June 2014.
The Claimant is the freehold owner of land known as Blacknest Park, Whitmore Lane, Sunningdale, Berkshire. The notice alleged 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"). In effect the notice complained that the Claimant had failed to comply with the duty under section 206 to plant trees to replace those trees which had been so removed. It stated that in the circumstances a planting scheme for the re-establishment of woodland was required. The notice specified the species to be planted and the planting density, namely a uniform spacing of 2.5m x 2.5m, amounting to 1280 trees in total. The notice allowed a period of 10 months for the Claimant for compliance, beginning with the date on which it was to take effect, 15 February 2014. However, the effect of the Claimant's appeals to the Secretary of State and then to the High Court has been to suspend the operation of the notice (sections 208(6) and 289(4B) of the TCPA 1990).
It is important to note that although the woodland removed had included some substantial trees, the notice only required the planting of trees 60cm to 90cm in height, that is to say saplings or "whips". The Claimant has not criticised the Council's approach of requiring such young trees to be planted, as opposed to more mature specimens. This was considered to be an appropriate way of re-establishing the trees which had comprised the W2 woodland. Not surprisingly, 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% during that process.
The relevant TPO was the Royal Borough of Windsor and Maidenhead Order No. 36 of 2004, dated 24 June 2004. Article 4 provided that (subject to the exemptions in article 5) no person shall cut down, top, lop, uproot, wilfully damage, or wilfully destroy any tree specified in schedule 1 to the order (or cause or permit any such acts), save with the consent of the Council. Schedule 1 defined two areas of woodland, marked by a continuous black line on the plan annexed, and referred to as W1 and W2. The section 207 notice related to the failure to replant trees removed from W2 which, according to the description in the TPO, covered "all trees of whatever species".
I note that part of the evidence submitted in the appeal on behalf of the Claimant by Julian Forbes-Laird, an expert aboriculturalist, criticised the TPO's description of W2, "all trees of whatever species" for using "excruciatingly vague language" (see rebuttal proof paragraphs 3.4.2 – 3.4.3). Ignoring the hyperbole, the short answer is that the description was not legally uncertain. The order meant exactly what it said. Any specimen qualifying as a "tree" fell within the scope of the restrictions contained in the TPO. In any event, as emerged during oral argument in this appeal, there was no real issue before the Inspector as to what should be understood in the legislation by the word "tree". There should not have been any doubt therefore as to the obligations imposed by the TPO before the Claimant gave instructions for works to be carried out.
Furthermore, there would have been a proper opportunity in 2004 to challenge the language used in the TPO to describe the woodland. Nothing has been said as to whether or not that opportunity was taken. Either way, the Claimant bought the land in 2010 subject to the TPO and the obligations which went with it (see section 206(5) of TCPA 1990).
In summary the Claimant raises four grounds of challenge:-
(i) The Inspector 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;
(ii) The Inspector erred in law by holding that the word "tree" included "potential trees" and "seedlings".
(iii) The Inspector failed to give adequate reasons for his decision in that he failed to make a finding on the number of trees cleared from the site in 2012;
(iv) If the Inspector did conclude that the Claimant had removed more than 27 trees, there was no evidence before him to support that conclusion.
Statutory Framework
Chapter I of part VIII of the TCPA 1990 deals with trees.
Section 197 imposes a duty upon a local planning authority to ensure, whenever appropriate, that in granting planning permission adequate provision is made through conditions for the preservation or planting of "trees".
Section 198 Power to make tree preservation orders
"(1) If it appears to a local planning authority that it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area, they may for that purpose make an order with respect to such trees, groups of trees or woodlands as may be specified in the order.
(2) An order under subsection (1) is in this Act referred to as a "tree preservation order".
(5) A tree preservation order may be made so as to apply, in relation to trees to be planted pursuant to any such conditions as are mentioned in section 197(a), as from the time when those trees are planted."
The Act does not contain a definition of "tree". The issue raised by the Claimant concerning the extent to which the definition applies to young specimens (to use a neutral word) applies just as much to section 197 as to sections 198 and 206 to 208. A restrictive approach as to what may be considered to be a "tree" would not only affect the scope of the protection afforded by TPOs, but also the ambit of the local planning authority's power to require the preservation or planting of trees when determining planning applications.
Section 206 Replacement of trees
"(1) If any tree in respect of which a tree preservation order is for the time being in force—
(a) is removed, uprooted or destroyed in contravention of the tree preservation regulations, or
(b) except in the case of a tree to which the order applies as part of a woodland, is removed, uprooted or destroyed or dies at a prescribed time
it shall be the duty of the owner to plant another tree of an appropriate size and species at the same place as soon as he reasonably can"
(2) The duty imposed by subsection (1) does not apply to an owner if on application by him the local planning authority dispense with it.
(3) In respect of trees in a woodland it shall be sufficient for the purposes of this section to replace the trees removed, uprooted or destroyed by planting the same number of trees—
(a) on or near the land on which the trees removed, uprooted or destroyed stood, or
(b) on such other land as may be agreed between the local planning authority and the owner of the land,
and in such places as may be designated by the local planning authority.
(4) In relation to any tree planted pursuant to this section, the relevant tree preservation order shall apply as it applied to the original tree.
(5) The duty imposed by subsection (1) on the owner of any land shall attach to the person who is from time to time the owner of the land."
With effect from 6 April 2012, section 206 (1)(a) was amended by the Planning Act 2008 to substitute "tree preservations regulations" for the former reference to a tree preservation order. "Tree preservation regulations" refers to regulations made under section 202A. The relevant regulations, the Town and County Planning (Tree Preservation) (England) Regulations 2012 ( SI 2012 No. 605), also came into force on 6 April 2012. Regulations 13 and 14 set out the circumstances in which a consent is required for works affecting trees protected by a TPO. These provisions are similar to those previously contained in TPOs according to the form prescribed by the earlier Town and Country Planning (Trees) Regulations 1999 (SI 1999 No 1892).
Section 207 Enforcement of duties as to replacement of trees
"(1) If it appears to the local planning authority that—
(a) the provisions of section 206, or
(b) any conditions of a consent given under tree preservation regulations which require the replacement of trees,
are not complied with in the case of any tree or trees, that authority may serve on the owner of the land a notice requiring him, within such period as may be specified in the notice, to plant a tree or trees of such a size and species as may be so specified
(2)...
To continue reading
Request your trial
-
Trustees of the Barker Mill Estates v Test Valley Borough Council Defendant (Defendant (Second Defendant) Secretary of State for Communities and Local Government (First Defendant)
...1654 (Admin) paragraphs 66 to 67; Distinctive Properties (Ascot) Limited v Secretary of State for Communities and Local Government [2015] EWHC 729 (Admin) at paragraph 49). 78 How then do these principles apply in a challenge under section 113 of PCPA 2004? The Claimants contend that the Co......
-
Waterstone Estates Ltd v Welsh Ministers Neath Port Talbot County Borough Council (Interested Party)
...1654 (Admin)paragraphs 66 to 67; Distinctive Properties (Ascot) Limited v Secretary of State for Communities and Local Government [2015] EWHC 729 (Admin)at paragraph 49)." 57 Because the point was not raised before the Inspector, it is not dealt with in her Decision at all either, nor would......
-
Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government and Another
...ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT (PLANNING COURT) The Hon. Mr Justice Holgate [2015] EWHC 729 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Jackson Lady Justice Gloster and Sir David Keene Case No: C1/2015/1102 Bet......
-
Green Lane Chertsey (Developments) Ltd v Secretary of State Forhousing Communities and Local Government
...applicable policy.” 7 Holgate J in Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government [2015] EWHC 729 Admin at para.49 of his judgment said: “I should add that Mr. Boyle has sought in effect to argue a point of law which was not canvassed before th......