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 (TRN) issued by the Royal Borough of Windsor and Maidenhead in respect of Blacknest Park, Whitmore Lane, at Sunningdale in Berkshire.
The council issued the TRN in January 2014, requiring 1,280 trees to be replanted. But Distinctive Properties claimed that the only duty under a tree preservation order (TPO) covering the land was to replace any trees that have actually been 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.
Following their defeat at the High Court, the landowners took their challenge to the Court of Appeal.
They claimed that they did not destroy anything that could legally be classed as a tree, and that the local authority and a planning inspector had been wrong to take the view that a "seedling" or "potential tree" counted as a "tree" for the purposes of a tree preservation order or tree replacement notice.
But Sir David Keene, giving the Court of Appeal’s ruling rejecting the owners’ appeal, said that the definition of "tree", under the Town and Country Planning Act 1990, did include seedlings.
While finding it not strictly necessary to make a "definitive pronouncement" as to whether a seedling is a tree, he did devote several paragraphs of his judgment to the question of what, in the eyes of a law, constitutes a tree.
He said: "It is not in dispute that a seed is not but that a sapling is. Of course, the word "tree" is to be found in the Act and thus its meaning must be, at least in part, a matter of law."
Adopting the approach taken by Mr Justice Cranston in the earlier case of Palm Developments, he went on: "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. This would accord with the purpose of a woodland tree preservation order in seeking to protect a woodland over a period of time as trees come and go, as they die and as they are regenerated."
As a result, he ruled that "insofar as the council and then the inspector relied upon the inclusion of ‘seedlings/saplings’ when arriving at an estimate of the number of trees on site before the clearance", he was not persuaded that they erred in law.
Distinctive Properties (Ascot) Limited v Secretary of State for Communities and Local Government. Case Number: C1/2015/1102