Distinctive Properties (Ascot) Ltd v Secretary of State for the Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gilbart |
| Judgment Date | 14 November 2014 |
| Neutral Citation | [2014] EWHC 4141 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4252/2014 |
| Date | 14 November 2014 |
[2014] EWHC 4141 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Gilbart
CO/4252/2014
Mr C Boyle QC (instructed by Blandy & Blandy Solicitors) appeared on behalf of the Claimant
Mr R Kimblin QC (instructed by Treasury Solicitor) appeared on behalf of the Defendant
In this matter the claimant seeks permission to appeal under section 289 of the Town and Country Planning Act 1990 against the decision of the first respondent's planning inspector of 15th August 2014, whereby he upheld but varied a tree replacement notice issued by the Royal Borough of Windsor and Maidenhead.
The tree replacement notice related to land at Blacknest Park, Whitmore Lane, Sunningdale in Ascot. The tree replacement notice read as follows:
"This is a formal notice served by the council under section 207 of the Town and Country Planning Act 1990 because it appears to them that you have not complied with a duty to plant trees under section 206 of the Act [and having referred to the land affected it then stated as the reason for serving the notice] during or around April 2012 and May 2012 an area of woodland, approximately 160 metres in length and 50 meters wide [that is 8,000 square metres] protected by the tree preservation order was removed in contravention of the said order. Under section 206 of the Act the owner of the land is under a duty to plant another tree for each tree removed. Given that the land was wooded a conventional planting scheme for the establishment of woodland will need to be implemented."
It then went on to "What you are required to do". It went on:
"Within the area shown edged red plant trees that are uniformed 2.5 m x 2.5 m spacing which provides for 1,280 trees in total."
Then it identified species that were to be planted and gave further instructions on planting.
The appeal by the claimant who rejoices in the name of Distinctive Properties (Ascot) Ltd was made under section 208 grounds (aa) and (b) of the 1990 Act. Ground (b) which related to the time for compliance was allowed, with the substitution of a figure of 24 for 10 months.
The site was the subject of a Woodland Tree Preservation Order made under sections 198 to 199 of the 1990 Act; in other words, it did not specify individual trees but applied to woodland shown on a plan.
I turn next to the provisions of the Town and Country Planning Act. Section 206 of the Act makes provision for the replacement of trees and reads thus:
"(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 order, or
…
it shall be the duty of the owner of the land to plant another tree of an appropriate size and species at the same place as soon as he reasonably can…
(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."
By section 207(1):
"(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 a tree preservation order 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...
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