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WHEN IS A TREE, A TREE?

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A recent Court of Appeal has held that even tree seedlings fall within the statutory term of “Trees”. ADAS reviews the statutory terminology, and highlights the impact on proposed tree works….

WHEN IS A TREE, A TREE?

 

Background

A Tree Preservation Order (TPO) is an order made by a Local Planning Authority (LPA) in respect of trees or woodlands. The principal effect of a TPO is to prohibit the: cutting down, uprooting, topping, lopping, wilful damage, or wilful destruction of trees without the local planning authority LPA's consent. Although not expressively covered in this wording, consent is also required for the cutting of roots, which is potentially damaging to the tree.

The law on TPOs is in Part VIII of the Town and Country Planning Act 1990 ('the Act') and in the Town and Country Planning (Trees) (Amendment) (England) Regulations 2012.

Definition of tree

The Collins English dictionary defines the tree as ‘a woody perennial plant, typically having a single stem or trunk growing to a considerable height and bearing lateral branches at some distance from the ground’. Historically, this definition has led to debate at numerous court hearings of which there is a dedicated chapter in ‘The law of trees, forests and hedges’ by Charles Mynors.

However, for the purposes of the TPO legislation, the High Court has held that a 'tree' is anything which ordinarily one would call a tree. This is highlighted in Bullock v Secretary of State for the Environment (1980), where recently coppiced (cut to stump level to encourage new growth) trees were held to be 'trees'.

Outcome of terminology

In this current hearing, the developers claimed that they did not destroy anything that could legally be classed as a tree, having cut 8,000 square metres of saplings to ground level, and that the local authority had been wrong to take the view that a "seedling" or "potential tree" counted as a "tree" for the purposes of a TPO.

However, it was held by The Court of Appeal that a tree is to be ‘so regarded at all stages of its life, subject to the exclusion of a mere seed’, and that 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’.

As a result the developers were served with a Tree Replacement Notice (TRN) to reinstate 1,280 trees with immediate effect. This result is in line with a previous judgement ruled down in 2009 when Palm Developments appealed a TPO refusal of works by Medway Council. 

Future approaches

The first step for anyone seeking to undertake tree management works is to check for any statutory designations that may affect the planned work. These can be Tree Preservation Orders (TPOs), Conservation Areas (CAs), the need for Felling Licences, Sites of Special Scientific Interest (SSSIs) or Special Areas of Conservation (SACs).

ADAS can then assist with the subsequent application for works through liaison with the local planning or other authority. We can advise on the tree work schedule, and can also be on site to instruct and check compliance with the recommended works. Where necessary we can also provide cross-technical advice with our in-house ecology, archaeology and land management teams which can minimize potential delays in the application process.

References

Bullock v Secretary of State for the Environment (1980) 40 P&CR 246,

Distinctive Properties (Ascot) Limited v Secretary of State for Communities and Local Government (2015). Case Number: C1/2015/1102

Palm Developments Ltd v Secretary of State for Communities and Local Government and Medway Council (2009) EWHC 220 (Admin), [2009] 2 P & CR 16

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