Andrew Plant, R (on the application of) v London Borough of Lambeth & Ors

When a local plan protects significant trees but also provides that, where removal is imperative, adequate replacement planting will be secured, the latter provision may operate as a limited exception to the protection policy. Whether removal is imperative requires a high-threshold evaluative planning judgment, broadly concerned with necessity. Relevant considerations include the tree’s significance and value, whether development can proceed without removal, the scheme’s benefits, and viable alternatives. The list is non-exhaustive. The policy must be read objectively, in context and as a coherent whole, with realism and common sense. It is not construed as if it were a statute or contract.

Lambeth granted planning permission for redevelopment involving the felling of four mature trees. Andrew Plant challenged the decision by judicial review, arguing that paragraphs B and C(i) of local plan policy Q10 absolutely prohibited the loss of significant trees. The Deputy High Court Judge dismissed the challenge and refused to quash the permission in [2022] EWHC 3079 (Admin).

The appeal concerned whether paragraph G of Q10 created a policy-compliant exception where removal was imperative and adequate replacement planting was secured, or merely addressed mitigation after a breach of paragraphs B and C(i).

Appeal dismissed. Stuart-Smith LJ gave the principal judgment. Moylan LJ agreed with both judgments, and Sir Keith Lindblom SPT agreed that the appeal should be dismissed for the reasons given by Stuart-Smith LJ.

1. Development plan policies must be interpreted objectively according to their language, read in context and as a whole. They should be approached with realism and common sense, having regard to their practical purpose. The exercise differs from construing a statute or contract. The approach was consistent with [2012] PTSR 983. Lambeth was also required to have regard to the development plan and other material considerations under section 70(2) of the Town and Country Planning Act 1990.
2. Q10 was imperfectly drafted, but Lambeth’s interpretation was more natural and coherent. Paragraphs B and C(i) established the default position that significant trees should be retained and protected. Paragraph G provided a limited exception permitting removal within policy where it was imperative, provided adequate replacement planting was secured by reference to the existing benefits of the trees removed.
3. “Imperative” imposed a high threshold and required an evaluative planning judgment based on all relevant considerations. It was broadly synonymous with necessity, but could not usefully be further defined or paraphrased. Relevant considerations included the significance, quality and value of the trees, whether the development could proceed without their removal, the benefits of the scheme, and whether an alternative scheme could achieve the same or similar benefits without removal. The list was non-exhaustive.
4. The contrary interpretation would treat paragraph G as addressing only the consequences of breach and would give inadequate effect to “imperative”. The Deputy High Court Judge had therefore reached the correct conclusion, and Lambeth had applied Q10 lawfully. Consistency with London Plan policy G7 and paragraph 180(d) of the NPPF supported that conclusion but was not essential to it.

1. Court of Appeal (Civil Division): appeal dismissed on 11 July 2023, [2023] EWCA Civ 809.
2. High Court of Justice, King’s Bench Division, Planning Court: judicial review challenge dismissed and planning permission not quashed, [2022] EWHC 3079 (Admin).