Palm Developments Ltd v Secretary of State for Communities and Local Government

A woodland tree preservation order under the Town and Country Planning Act 1990 protects trees of any size, including saplings. It also extends to trees which grow or are planted after the order is made. The absence of a statutory minimum-size exemption is significant, particularly when compared with express exemptions elsewhere in the legislation. In an application for consent, the decision-maker may assess the amenity value of the woodland as a whole, the likely impact of the proposed works, and whether the works are justified. Judicial review of planning judgment and costs decisions is highly restricted.

Palm Developments challenged the Secretary of State’s dismissal of appeals against Medway Council’s refusal of consent to remove scrub, shrubs and saplings within woodland protected by a tree preservation order. It also sought judicial review of the Secretary of State’s decision to award the Council its costs in the appeals.

The central issues were whether saplings were protected trees, whether a woodland order covered trees arising after the order was made, whether the Inspector and Secretary of State had applied the correct approach to the proposed works, and whether the costs decision was unlawful or irrational.

1. Meaning and scope of a woodland tree preservation order. The absence of any definition of “tree” or any minimum-size exemption in the Town and Country Planning Act 1990 or the Town and Country Planning (Trees) Regulations 1999 was material. Where Parliament intended a size limitation, it used express language elsewhere. Saplings of whatever size were therefore protected by a woodland tree preservation order. The contrary observations of Lord Denning MR in Kent County Council v Batchelor (1976) 33 P&CR 185 were wrong.
2. A woodland order protects the undifferentiated mass of trees in the specified area. Its purpose would be defeated if it applied only to trees existing when the order was made. It therefore extends to trees which grow or are planted afterwards, consistently with Evans v Waverley Borough Council [1995] 3 PLR 80.
3. The Inspector correctly treated the question whether a tree could be protected as a preliminary legal issue, distinct from the later assessment of the practical impact of the proposed works. She was entitled to consider the amenity value of the woodland, the widespread and impractical nature of the proposed clearance, likely damage to intertwined roots, and the absence of an arboricultural imperative. The Secretary of State lawfully adopted that reasoning.
4. Under section 288, the court must read the decision letter and Inspector’s report flexibly and as a whole. The weighing of planning considerations is for the decision-maker. The section 288 challenge was therefore dismissed.
5. An award of costs in a planning appeal requires more than the fact that the appellant lost. The appellant must have acted unreasonably, including by pursuing an appeal which it was obvious from the evidence had no reasonable prospect of success. Review of such a discretionary decision is highly restricted. Permission for judicial review of the costs decision was refused.

First-instance decision. The section 288 application was dismissed and permission to proceed with the judicial review of the costs decision was refused.