Steeles Law Head of Planning & Environment David Merson and Trainee Solicitor Alex Thompson examine the case.
Facts
Palm Developments Ltd (Palm) bought a site in 2001 and applied for planning permission to use it as a commercial wharf. The local planning authority (LPA) then made a tree preservation order to protect the trees on the site.
In 2006, having failed to obtain planning permission, Palm sought consent to perform works which involved
the removal of saplings below a specified size and the removal of trees. The LPA refused the application.
Palm then appealed to the Secretary of State but this appeal was dismissed on the recommendation of the Secretary of State’s Inspector.
Palm subsequently made an application to the High Court under s.288 of the Town and Country Planning Act 1990 seeking an order quashing the decision of the Secretary of State.
One of Palm’s arguments was that consent was required only for the carrying out of works to trees, not to bushes, shrubs, scrub or saplings below a certain size or for trees which grew after the date of the order.
Judgment
In dismissing the application, Mr Justice Cranston confirmed that “
saplings of whatever size are protected by a woodland tree preservation order”
.
This conflicts with the judgment of Lord Denning MR in the earlier case of Batchelor, where it was concluded that “many saplings were not trees and would need to be of over 180-200mm diameter before they could be [trees]”.
Mr Justice Cranston has now broadly defined ‘tree’ as “anything that would ordinarily be regarded as a tree”. He went on to confirm that although this does not include “a shrub, a bush or scrub”, it does include “small trees”. Therefore the smallest of saplings can now be regarded as a tree.
Mr Justice Cranston also concluded that woodland tree preservation orders do not simply apply to “trees existing at the date it [the order] was made”. Woodland tree preservation orders also apply to trees planted at some unknown time in the future.
This is because “a woodland order would seem designed to protect the undifferentiated mass of trees in the specific area”. According to Mr Justice Cranston the order would not be achieving its purpose “if it applied only to the trees existing at the date it was made”.
Impact
The press have been quick to criticise Mr Justice Cranston for his 12,000 word judgment on this unusual topic. However, this decision does have important implications for landowners, LPAs and developers.
From a landowner or LPA’s perspective it shows that tree preservation orders now have a much wider scope and can be used to protect trees grown not only now but also at some unknown time in the future.
From a developer’s perspective the decision highlights the importance of careful planning as something as trivial as a small sapling could prove to be a major obstacle in a development project.
For further information or for any Planning, Environmental or Energy enquiries please contact David Merson, Head of Planning and Environmental Law on
dmerson@steeleslaw.co.uk
or 020 7421 1720.