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

On an appeal against a tree replacement notice, the landowner bears the burden of proving the grounds relied on. Where protected woodland has been cleared and the precise number of trees removed cannot be established, the decision-maker may use a reasonable estimate. Standard planting densities may provide that estimate, including for young trees and saplings. A decision letter need address the principal controversial issues and may give brief reasons to parties familiar with the case.

The claimant appealed under section 289(2) of the Town and Country Planning Act 1990 against an Inspector’s decision on a section 208 appeal. The appeal concerned a tree replacement notice issued under section 207 after woodland protected by a tree preservation order had been cleared. The notice required 1,280 young trees to be planted. The claimant argued that the notice required too many trees, wrongly treated seedlings as trees, lacked adequate reasons and was unsupported by evidence.

1. Appeal dismissed. The Inspector’s decision was not vitiated by error of law.
2. The claimant accepted that at least 21 protected trees had been removed and not replaced. The burden of proof in a section 208 appeal lies on the appellant. The authority therefore did not bear the burden of proving the precise number of trees removed or independently substantiating the replacement requirements.
3. Where clearance has destroyed evidence of the number of protected trees removed, the issue may be resolved by the best available estimate. Standard planting densities may provide a reasonable and conservative estimate. On the evidence, the Council used them to estimate the number of trees requiring replacement, rather than merely to achieve an arboricultural objective.
4. The challenge concerning the meaning of “tree” failed. The claimant accepted that saplings were protected. The Inspector was entitled to read “other potential trees” in context as referring to seedlings/saplings, without deciding the wider question whether every seed or seedling is a tree.
5. The Inspector gave adequate reasons. A decision letter need address the principal important controversial issues, and brief reasons may suffice where the parties know the evidence and arguments. No substantial doubt arose as to legal error.

The judgment records an appeal under section 289(2) of the Town and Country Planning Act 1990 from the Inspector’s decision on the claimant’s section 208 appeal. The Inspector dismissed the appeal against the tree replacement notice, but extended the compliance period from 10 months to 24 months. The High Court dismissed the statutory appeal.