Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government & Anor

A tree replacement notice under the Town and Country Planning Act 1990 cannot require more replacement trees than were removed or destroyed from protected woodland. The number lost need not be capable of exact counting; a reasonable, even rough, estimate may be used, and the landowner bears the burden of showing that the notice exceeds the loss.

Decision letters should be read straightforwardly and in context. In woodland cases, reinstatement of woodland describes the amenity objective, but enforcement remains one-for-one replacement. For Part VIII, a tree includes a plant of a tree species at all stages of life, including an identifiable seedling, subject only to exclusion of a mere seed. No minimum size is required.

The appellant owned woodland protected by a tree preservation order. After an area was clear-felled, the local planning authority served a tree replacement notice under the Town and Country Planning Act 1990, requiring the planting of 1,280 trees.

An inspector upheld the notice, subject to a limited variation. The appellant’s statutory appeal under section 289(2) was dismissed by the Administrative Court, with judgment reported at [2015] EWHC 729 (Admin). The appeal concerned whether the notice could require more trees than had been removed, whether the number lost could be estimated by reference to planting densities, and whether seedlings or potential trees fell within the statutory meaning of tree.

Sir David Keene gave the judgment of the court. Lady Justice Gloster and Lord Justice Jackson agreed. The appeal was dismissed.

1. Number of replacement trees. Sections 206 and 207 of the Town and Country Planning Act 1990 had to be read together. A tree replacement notice concerning protected woodland could require replacement of the trees removed, uprooted or destroyed, but could not require more trees than had been lost. The reference to reinstatement of woodland described the ultimate amenity objective and did not convert woodland into a single entity for replacement purposes.
2. Estimation and burden of proof. In cleared woodland it might be impossible to count the trees precisely, particularly because seedlings and saplings could have been removed. A rough estimate was permissible. Standard planting density could operate as an estimate or proxy where it represented the best evidence available. The landowner bore the burden of showing that the number specified in the notice exceeded the number lost. Failure to provide sufficient evidence of the pre-clearance position could therefore defeat the challenge. That approach was consistent with Nelsovil v Minister of Housing and Local Government [1962] 1 WLR 404.
3. Decision letter. Planning decision letters were to be read straightforwardly, without excessive legalism or exegetical sophistication, having regard to the parties’ familiarity with the issues and evidence. The inspector’s reference to potential trees was a contextual paraphrase of the evidence about seedlings and saplings. His reference to reinstating woodland did not disclose an error of law.
4. Meaning of tree. Subject to the exclusion of a mere seed, the word tree in Part VIII included a plant of a tree species at all stages of its life, including an identifiable seedling. No minimum size requirement applied. The meaning was the same for woodland and individual-tree preservation orders. The approach in Palm Development Ltd v Secretary of State [2009] EWHC 220 (Admin) was accepted. The contrary diameter observation in Kent County Council v Batchelor [1976] 33 P&CR 185 was obiter and had rightly been departed from.
5. The inspector’s decision was lawful and the appeal was dismissed.

• Court of Appeal (Civil Division) dismissed the appeal and upheld the lawfulness of the inspector’s decision.
• High Court of Justice, Queen’s Bench Division, Administrative Court (Planning Court) dismissed the statutory appeal on 19 March 2015: [2015] EWHC 729 (Admin).
• Secretary of State’s inspector rejected the appeal against the tree replacement notice, save for a limited variation, and upheld the notice.