When is a tree not a tree, at least for the purposes of a Tree Replacement Notice?

May 18, 2016

By Peter Dixon

Under Section 206 of the Town and Country Planning Act 1990 the owner of land where a tree protected by a Tree Preservation Order (‘TPO’) has been removed, uprooted or destroyed has a duty to replant a tree of the appropriate size and species. Section 207 of the Act gives the relevant local planning authority the power to serve a notice to enforce the duty by requiring the planting within a specified time (a ‘Tree Replacement Notice’). In Distinctive Properties (Ascot) Limited v (1) Secretary of State for Communities and Local Government (2) Royal Borough of Windsor and Maidenhead [2015] EWCA Civ 1250 the Court of Appeal was required to consider what constituted a ‘tree’ in the context of a Tree Replacement Notice served on a developer following the clear felling of an area of woodland that was subject to a TPO.

The Tree Replacement Notice related to a site of some 0.8 hectares (2 acres) and required in the region of 1,280 replacement trees of mixed indigenous species in the form of whips and saplings up to 0.9m in height to be planted in replacement for the woodland which had been felled. The developer maintained that the requirements of the notice were excessive because the felling had affected only 27 mature trees of which 6 were not subject to the TPO. The local planning authority in turn contended that the mature woodland would have included not only the specimen trees referred to be the developer (identifiable from the remnant stumps) but also many seedlings and saplings consistent with the natural lifecycle of such woodland and that the requirements of the notice were reasonable on that basis.

The Court reviewed relevant authorities, including in particular Palm Development Ltd v Secretary of State [2009] EWHC 220 (Admin) before concluding that although a ‘seed’ was certainly not a ‘tree’ there had been no error in law in treating ‘seedlings’ and ‘saplings’ as ‘trees’ for the purposes of the notice.