How big, or small, is a ‘tree’?
A recent Court of Appeal ruling on precisely when a tree becomes a tree could have serious consequences for landowners working under the restrictions of a Tree Preservation Order.
The Court of Appeal has ruled that: “a tree is to be so regarded at all stages of its life, subject to the exclusion of a mere seed. A seedling would therefore fall within the statutory term, certainly once it was capable of being identified as of a species which normally takes the form of a tree.”
The case followed a developer being served with a notice from the local planning authority ordering the re-planting of 1,280 trees on the basis that their removal contravened a Tree Preservation Order. The developer considered the notice defective as only saplings, not protected under the relevant legislation, were removed.
The decision is significant. If a TPO protects all trees within a designated area of ground, as opposed to individual trees or specified groups of trees, the restriction not to remove or destroy “trees” from the stage of sprouting seedlings could cause difficulties.
If a developer does not have any evidence (such as tree surveys) to support their own estimate of the precise number of trees within designated areas of ground or to challenge that of the planning authority, the Court of Appeal has indicated they are unlikely to succeed in any challenge they would wish to make to an order requiring them to carry out replanting (as was the case in this appeal).
Unless tree removal is specifically authorised by a planning permission, overriding the terms of an existing TPO on the land in question, it might be difficult for any development to take place without a breach of the TPO occurring.
Partner - Head of Rural Division
Tim is head of the firm's Rural Division and of the Cambridge office, although he spends a considerable amount of time in London. He has over 20 years experience in advising institutional and pri...