Tree replacement notice challenge turned down

The Court of Appeal has endorsed an inspector's decision to uphold a Berkshire council's order requiring a landowner to plant 1,280 trees.

The Court of Appeal has endorsed an inspector's decision to uphold a Berkshire council’s order for a landowner to plant 1,280 trees.

In 2012, the landowner felled part of a woodland protected by a tree preservation order (TPO). In issuing a tree replacement notice (TRN), the council applied a standard tree density per hectare. In the High Court, Mr Justice Holgate concluded that it for the claimant to prove that the number of replacement trees required was excessive and that the council had been correct in applying a standard density.

The Court of Appeal accepted the landowner’s claim that a TRN cannot require more trees to be planted than have been lost, noting that the inspector had agreed this point. It held that the inspector had correctly established that felled saplings constituted trees, in accordance with Palm Development Ltd v Secretary of State for Communities and Local Government [2009].

In line with the approach in Palm Development, it ruled that a tree is to be regarded as such at all stages of its life cycle, beyond when it is a seedling. It was satisfied that the inspector had before him evidence that the number of trees lost was greater than the number required to be replaced. On that basis, it held that his conclusion that the TRN was not unreasonable showed no error in law.

Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government

Date: 8 December 2015

Ref: [2015] EWCA Civ 1250


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