In March, Distinctive Properties (Ascot) Ltd failed to persuade High Court judge Mr Justice Holgate to quash a planning inspector’s decision dismissing their appeal against the tree replacement notice issued in respect of Blacknest Park, Whitmore Lane, Sunningdale in Berkshire.
The landowners have now renewed their challenge to the order requiring them to replant more than 1,200 trees on the land to replace trees that they are accused of destroying.
They claim that they didn’t destroy anything that could legally be classed as a tree.
The question for the Appeal Court to decide is whether in the eyes of the law "potential trees", seedlings or even sprouting acorns should be regarded as "trees".
The issue is seen as a major one, which could have wide implications in respect of the local authorities’ tree protection powers throughout the country.
The High Court had rejected Distinctive's claims that the inspector had wrongly taken into account "potential trees" in reaching his decision.
In his decision, however, the High Court judge said the inspector's handling of issues relating to saplings and trees had been "impeccable", and that the challenge to it was "untenable".
However, lawyers representing Distinctive argued in the Court of Appeal last week that the High Court judge was wrong when he backed the planning inspector’s finding that a "seedling" or a "potential tree" was capable of protection under the tree preservation regime.
Christopher Boyle QC said the appeal raised "important points of principle or practice" that were fundamental to the operation of tree preservation order (TPO) and tree replacement notice (TRN) regimes.
He added: "The issue of whether a tree includes a 'seedling' or a 'potential tree' will affect what specimens a local planning authority can protect under a TPO, whether the impact on young specimens, such as seedlings, is a material consideration when granting planning permission and whether it is a criminal offence to cut down, uproot or wilfully destroy a seedling or a 'potential tree'."
The Royal Borough of Windsor and Maidenhead issued the notice in January 2014, requiring 1,280 trees to be replanted. But Distinctive Properties says the only duty under a TPO covering the land was to replace any trees that were actually removed, uprooted or destroyed.
The council, in its TRN, claimed that 8,000 square metres of woodland had been removed in contravention of the TPO and gave Distinctive ten months to replant 1,280 trees. The inspector extended that period to two years.
Distinctive says while it instructed a contractor to clear vegetation, chiefly invasive rhododendron and cherry laurel, in 2012, the contractor denies removing any trees.
Distinctive Properties (Ascot) Limited v Secretary of State for Communities and Local Government & Anr. Case Number: C1/2015/1102