Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Sir David Keene,Lady Justice Gloster,Lord Justice Jackson |
| Judgment Date | 08 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1250 |
| Date | 08 December 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2015/1102 |
[2015] EWCA Civ 1250
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (PLANNING COURT)
The Hon. Mr Justice Holgate
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lady Justice Gloster
and
Sir David Keene
Case No: C1/2015/1102
Christopher Boyle QC and Andrew Parkinson (instructed by Blandy and Blandy LLP) for the Appellant
Richard Kimblin (instructed by Government Legal Department) for the First Respondent
Edmund Robb (instructed by Royal Borough of Windsor and Maidenhead Shared Legal Services) for the Second Respondent
Hearing date: 17 November 2015
"The woods decay, the woods decay and fall", wrote Lord Tennyson, but this appeal is concerned with the consequences of human intervention in the life of woodlands. In particular, this case is concerned with a Tree Replacement Notice ("TRN") served by the Council of the Royal Borough of Windsor and Maidenhead as the local planning authority under section 207 of the Town and Country Planning Act 1990 ("the Act").
The TRN was challenged on appeal by the present appellant to the Secretary of State for Communities and Local Government, who appointed an inspector to decide the appeal. The inspector rejected the appeal, save in a limited respect which need not concern us, and he upheld the TRN with a slight variation. That decision was in turn challenged by the appellant by way of an appeal to the High Court under section 289(2) of the Act. The appeal was dismissed by Holgate J on 19 March 2015. The appellant now appeals to this court against that decision.
The facts
The appellant is the freehold owner of land known as Blacknest Park in Berkshire. It is some 6.4 hectares in area (just under 16 acres) and lies close to Virginia Water. The appellant bought the land in 2010. There was already in existence a Tree Preservation Order ("TPO"), dated 24 June 2004, made under section 198 of the Act. It provided by Article 4 that, with certain exceptions of no relevance for present purposes,
"no person shall—
(a) cut down, top, lop, uproot, wilfully damage or wilfully destroy; or
(b) cause or permit the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of,
any tree specified in Schedule 1 to this Order or comprised in a group of trees or in a woodland so specified, except with the consent of the authority. …"
Schedule 1 to the Order specified no individual trees or group of trees. It specified two areas of woodland, marked by a continuous black line on the plan annexed and referred to as W1 and W2. No challenge to the validity of the TPO under section 288 of the Act appears to have been made, and it was therefore still in force when the appellant bought Blacknest Park in 2010 and remained in force at all material times.
In about April and May 2012, an area of about 0.8 hectares (about 2 acres) of land within woodland W2 was clear-felled by contractors acting for the appellant. This gave rise to a TRN issued by the Council on 15 January 2014 under section 207. The TRN alleged that between April 2012 and May 2012 an area of woodland approximately 8000m2 protected by the TPO was removed in contravention of that Order. It referred to the duty of the landowner under section 206 of the Act to plant another tree for each tree removed. It stated that, given that the land was wooded, a conventional planting scheme for the establishment of woodland was necessary.
Under the heading "What You Are Required to Do", the TRN specified the planting of trees at a uniform spacing of 2.5m x 2.5m, amounting to 1,280 trees in total. It described the required species (common alder, white willow, crack willow, English oak and common beech) and the percentages of each. As Holgate J subsequently observed, the TRN only required the replacement trees at time of planting to be 60 – 90 centimetres (approximately 2 to 3 feet) in height, which he described as saplings or "whips". It then dealt with the time for compliance.
The appellant exercised its right to appeal to the Secretary of State and a hearing and site visit took place on 3 June 2014. Various grounds of appeal were advanced, but only one is of relevance to these proceedings. It was alleged that the number of trees removed, as computed from the presence of visible tree stumps, was only 27, 6 of which were beyond the scope of enforced replacement. Consequently it was said that the TRN went well beyond the number of trees to which the power to require replacement related. Evidence to that effect was given on behalf of the appellant by Mr Forbes-Laird, an arboricultural consultant, who also acted as the appellant's representative.
There was also arboricultural expert evidence given on behalf of the Council by Ms Leonard. She pointed to the difficulty of assessing how many trees, including seedlings and saplings, had been present because the woodland had been clear felled with much material having been burnt or disposed of. After referring to the words of Cranston J in Palm Development Ltd v Secretary of State [2009] EWHC 220 (Admin) that in TPOs "there are no limitations in terms of size for what is to the treated as a tree", she went on to say at paragraph 4.7 of her witness statement:
"It is quite possible and indeed probable that the numbers of trees removed were in excess of the number of replacement trees required in the TRN, as there may have been plenty of seedlings/saplings on site prior to the clearance works. No evidence has been provided to the contrary. There are a number of willows and other seed bearing trees in the vicinity. Willow and Alder can seed prolifically: these seeds are dispersed by the wind and can also be carried downstream in watercourses. The seeds from Beech and Oak are heavier and can be distributed by animals/birds otherwise these seeds are likely to germinate where they fall onto the ground."
She emphasised the reasonableness, as she saw it, of using an estimate of the number of trees likely to have been present when dealing with a TPO woodland which had been "comprehensively destroyed": paragraph 4.8.
Mr Forbes-Laird produced rebuttal witness evidence on behalf of the appellant. In it he dealt with a number of matters put forward in evidence by Ms Leonard. It is to be observed, as Holgate J did (judgment, [46]), that in his rebuttal Mr Forbes-Laird made reference to Ms Leonard's statement about "seedlings/saplings" on site before the clearance works and made no criticism of her inclusion of seedlings. Thus no such issue was put before the inspector as is now raised as to whether such entities fell within the meaning of the term "trees" in the Act.
The decision letter
The inspector in a decision letter dated 15 August 2014 concluded that there had been woodland in 2004 in the area covered by the TRN, and that there was currently no woodland in place, it being agreed that the area had been cleared in April/May 2012. He too referred to the Palm Developments decision, to the effect that with woodland TPOs there are no limitations in terms of size for what is to be treated as a tree. "In other words, saplings are trees, and on top of that, a woodland TPO extends to all trees in a woodland, even if not in existence at the time the Order is made" (paragraph 8).
He then went on in the crucial paragraph to say this:
"In that context, the appellant is wrong to concentrate on the stumps identified because that fails to have regard to any saplings or other potential trees that might well have been removed as part of the clearance works too. The purpose of the TRN is to secure the reinstatement of woodland in the area concerned. It is difficult to see how that could be achieved other than through the use of standard planting densities and in that context, the number of trees set out in the TRN is not unreasonable. The appeal on ground (aa) fails, therefore."
Subject to a change in the time for compliance with the notice, he then upheld the TRN.
The grounds on which that decision was challenged in the High Court were based upon the contention that a TRN cannot require the replanting of a greater number of trees than had been removed. It was and is then said, in brief, that the inspector was wrong in law to find that a "seedling" or "potential tree" counted as a "tree" for the purposes of a TPO or TRN. Finally, it was and is contended that, even if only an estimate of the number of trees removed is possible, the inspector failed to make any such estimate.
The statutory regime
Before coming to the detailed terms of the relevant provisions of the Act, it is helpful to set out briefly the structure of that part of the Act which deals with TPOs and TRNs. All are contained in Part VIII of the Act. The power to make TPOs "in the interests of amenity" is to be found in section 198. One can then pass to section 206, which imposes a duty on the owner of the land where a tree protected by a TPO has been removed, uprooted or destroyed to replant a tree of the appropriate size and species. The next section, section 207, enables the local planning authority to enforce that duty, where not complied with, by serving a notice (a TRN) on him, requiring planting within a specified time. There is a right of appeal against a TRN provided by section 208. If a TRN is not complied with, the local planning authority can enter the land, plant the...
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