What is a tree?

I wrote an article under this title in my old blog in February 2009. (It can be found in the archive by clicking on OCT 08 – APR 09 on the top line of this page.) That article was prompted by the High Court judgment in Palm Developments Ltd v. SSCLG [2009] EWHC 220 (Admin), which established that the absence of any size limit being stipulated by the 1990 Act or the TPO regulations in this context (in contrast to certain other statutory provisions for the protection of trees) indicates that the protection afforded by a woodland TPO is intended to apply to all tree plants, irrespective of size, including even seedlings and saplings (but it would not include a shrub, a bush or scrub).

This question has come before the courts again this year, and has now reached the Court of Appeal, in the case of Distinctive Properties (Ascot) Ltd v SSCLG [2015] EWCA Civ 1250, in which judgment was given on Tuesday 8 December.

This case concerned a Tree Replacement Notice (“TRN”) served by the LPA, relating to a tree preservation order that covered an area of woodland as distinct from individual trees. Part of the affected area was clear felled by contractors acting for the owners. This was in contravention of the TPO, and it was in response to this that the council served the TRN. This referred to the duty of the landowner under section 206 to plant another tree for each tree removed. The Notice stated that, given that the land was wooded, a conventional planting scheme for the establishment of woodland was necessary, involving the planting of 1,280 new trees in total, comprising common alder, white willow, crack willow, English oak and common beech, in the form of saplings or “whips” 60 – 90 centimetres (approximately 2 to 3 feet) in height.

In a subsequent appeal to the Secretary of State, there was a dispute as to the precise number of trees that had been removed. It was difficult to assess how many trees, including seedlings and saplings, had been present because the woodland had been clear felled, with much material having been burnt or disposed of. However the council relied on the judgment in Palm Developments, where it had been held that in TPOs “there are no limitations in terms of size for what is to the treated as a tree”. In fact, the council, argued, it was quite possible and indeed probable that the numbers of trees removed were in excess of the number of replacement trees required in the TRN, as there may have been plenty of seedlings/saplings on site prior to the clearance works. No evidence had been provided to the contrary. The council contended that it was reasonable to use an estimate of the number of trees likely to have been present when dealing with a TPO woodland which had been “comprehensively destroyed”.

The inspector determined that there had been woodland in 2004 in the area covered by the TRN, and that there was currently no woodland in place, it being agreed that the area had been cleared in April/May 2012. He too referred to the Palm Developments decision, to the effect that with woodland TPOs there are no limitations in terms of size for what is to be treated as a tree, adding that saplings are trees, and a woodland TPO extends to all trees in a woodland, even if not in existence at the time the Order is made. He accordingly concluded : “In that context, the appellant is wrong to concentrate on the stumps identified because that fails to have regard to any saplings or other potential trees that might well have been removed as part of the clearance works too. The purpose of the TRN is to secure the reinstatement of woodland in the area concerned. It is difficult to see how that could be achieved other than through the use of standard planting densities and in that context, the number of trees set out in the TRN is not unreasonable.” He therefore dismissed the appeal.

The principal contention in the appellant’s legal challenge to this decision was that a TRN cannot require the replanting of a greater number of trees than had been removed. The appellant submitted that the inspector was wrong in law to find that a “seedling” or “potential tree” counted as a “tree” for the purposes of a TPO or TRN.

In giving judgment in the Court of Appeal (following the dismissal of the original appeal by Holgate J in the High Court), Sir David Keene noted that the appellant accepted that it will often be necessary in cases of this sort simply to arrive at an estimate for the number of trees lost, rather than an accurate count. The Secretary of State also emphasised in argument that because a woodland TPO is seeking to protect the woodland in the interests of amenity and does not specify individual trees, it will often be impossible or nearly impossible to determine precisely how many trees exist within the woodland even at the time of the making of the order. Such uncertainty increases over time because the number of trees in the woodland will vary from year to year and from season to season. All parties to this litigation accepted that a woodland TPO protects not only the trees existing at the time when the TPO is made but also those which come into existence subsequently (see Palm Developments). It followed, in Sir David’s judgment, that any estimate of number will often have to be a crude one.

A further point linked to that, and rightly stressed by Holgate J at first instance, was that (in accordance with the judgment in Nelsovil v. MHLG [1962] 1 WLR 404) if a landowner who has cleared woodland protected as such by a TPO fails to produce sufficient evidence as to what existed before the clearance works began, by (for example) a survey, it will be open to the decision-maker to treat the case as one where that burden of proof has not been discharged and the challenge to the number of trees in the TRN requirement may be rejected. It was in that context that the inspector's decision letter in the present case must be approached.

The appellant also challenged the inspector’s reference to “saplings or other potential trees” which may well have been removed, and argued that a potential tree is not a tree, because (as a matter of language) if it were a tree the adjective “potential” would not be there. Sir David found this argument unpersuasive in the factual circumstances of this case. It seemed to him, as it did to Holgate J, that the inspector here was using the expression “saplings and other potential trees” simply to reflect in slightly different language the Council's evidence about “seedlings/saplings”. Whether that latter phrase is to be seen as including plants of a tree species which fall outside the meaning of the word “tree” was the subject of the third and final issue, but the inspector's use of the phrase “other potential trees” did not give rise to any additional issue.

The next point advanced by the appellant was that the inspector seemed to believe that the purpose of a TRN in a woodland TPO case is to replace woodland, whereas its purpose is to replace the lost trees. It was submitted that the inspector went wrong in law because he treated the lost woodland as a single entity and not as a number of trees. The appellant relied on a sentence in the decision letter that “The purpose of the TRN is to secure the reinstatement of woodland in the area concerned.” However, Sir David did not see any legal flaw in the inspector's statement. Certainly the TRN sought, and could only seek, the replanting of trees. It cannot require shrubs, fungi or wild flowers to be replaced, even though they may have previously existed. Moreover, it can only require the same number of trees to be replanted. But when a TRN is made in the context of a woodland TPO, as in this case, the ultimate objective may properly be described as the “preservation …... of woodlands” in the interests of amenity (see the wording of section 198(1)). That is the purpose of a woodland TPO . The TRN can only seek to do that by the method of requiring the replacement of those trees which have been lost, but a planning inspector does not err in law if he refers to reinstating the woodland. That may properly be read as implying that the method by which the objective will be achieved is by replacing the lost trees.

The final issue concerned what is meant in the Act by the words “tree” and “trees”. It arose because of the reference by the inspector in his decision letter to “saplings or other potential trees” which might well have been removed, and because of the use of the term “seedlings/saplings” by the Council's witness, which was being paraphrased by the inspector. The case for the appellant was that the term “tree” includes saplings, but not shrubs, bushes or scrub, and not seedlings. The problem arises because of the absence of any definition of “tree” in the Act. No case appears to have followed Lord Denning MR's suggestion in Kent CC v. Batchelor (1976) 33 P.& C.R. that in woodland a tree “ought to be something over seven or eight inches in diameter” (some 178 – 203 mm), and the appellant did not seek to rely on it in the present case. It was clearly an obiter comment and was departed from, rightly in Sir David’s view, in both Bullock v. SSE (1980) 40 P. & C.R. and in Palm Developments. It is also inconsistent with regulations made under the Act, whereby actions in respect of trees in conservation areas which would otherwise be prohibited are exempt if the “trees” in question are no more than 75mm (about 3 inches) in diameter. Clearly, therefore, one can have trees with a diameter below 75mm.

In the Palm Developments case, Cranston J in a careful and comprehensive judgment had examined this issue in some detail. He looked at a number of dictionary definitions of “tree” and other entities, including the definition of “sapling” in the New Oxford Dictionary of English: “a young tree, especially one with a slender trunk”. He emphasised that where in other legislation, such as the Forestry Act 1967, Parliament had intended a minimum size to apply to trees, it has done so expressly, and in addition had done so in the regulations about trees in conservation areas. He had attached weight to the fact that such provisions were absent in the case of TPOs. As a result, he had concluded that “saplings of whatever size are protected by a woodland tree preservation order”.

Cranston J had returned to that point a little later in his judgment: “The inspector rightly considered that in a woodland situation a tree may include a tree at all stages of its life”. It was of course right that Cranston J was not being asked to consider in express terms whether a seedling was a “tree”, and so the appellant in the present case argued that there must be a point where a seedling has not become a sapling, even though biologically the two are of the same species. Not everything that is of a tree species is a tree. A sprouting acorn, he submitted, could not be considered a tree, nor could a mere seed. It was contended that a seedling of a tree species “needs a chance to demonstrate that it is going to be a tree”, as opposed to a bush or scrub, and that that is only achieved when the plant (to use a neutral term) can be regarded as a sapling. He accepted, however, that there are no minimum size requirements.

However, the Secretary of State emphasised that a woodland TPO is seeking to capture the natural turnover in trees. Consequently a scheme of protection which disregarded a part of the woodland would ultimately fail in its protective purpose. The Secretary of State accepted that one could not include a mere seed, but submitted that Cranston J in Palm Developments was right to include all stages of a tree's life within the statutory term “tree”.

Like Holgate J, Sir David Keene was not at all sure that the court was required to make a definitive pronouncement as to whether a seedling is a tree. It was not in dispute that a seed is not but that a sapling is. But the inspector was never asked to decide whether a seedling is a tree, because the Council's inclusion of “seedlings/saplings” was not put in issue before him by the appellant. Of course, the word “tree” was to be found in the Act and thus its meaning must be, at least in part, a matter of law. Insofar as it was necessary to determine the meaning, Sir David accepted the approach adopted by Cranston J in Palm Developments, namely 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. This would accord with the purpose of a woodland TPO in seeking to protect a woodland over a period of time as trees come and go, as they die and as they are regenerated. The appellant’s submission that a seedling is not a tree was, in his view, more of a bare assertion rather than an argument based upon any coherent principle. If a sapling, whatever its size, is to count as a tree, as the appellant accepted, what reason was there for excluding a seedling of the same species? If a young oak plant some 0.6m/2 feet in height is within the meaning of the word “tree”, as the appellant again accepted, why is not an even younger oak plant of, say, 0.3m/1 foot height? The definition of “seedling” in the Concise Oxford Dictionary is “plant raised from seed and not from cutting, etc.” If the “plant” is of a tree species, Sir David could see no reason why it should be excluded from the meaning of the word “tree”. Indeed, in the context of a woodland TPO, a purposive construction of the statutory language would include such a plant, because one is seeking to preserve the woodland which means preserving the trees “at all stages” of their lives, as Cranston J put it, so that natural regeneration could take place.

Therefore, 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, Sir David was not persuaded that they erred in law. On the assumption that it is necessary to decide this issue, he would decide it against the appellant.

The appeal was accordingly dismissed, with the concurrence of Jackson and Gloster LJJ.

The Court of Appeal’s decision in Distinctive Properties does not simply repeat and affirm what Cranson J said in Palm Developments but further clarifies the definition of a tree for the purposes of a woodland TPO, in this case in the context of a TRN. It also indicates the approach which can properly be taken to determining the number of trees to be replaced and the manner of replanting, especially where there is no clear evidence of precise numbers following the removal of the pre-existing woodland.

The case should serve as a salutary warning to developers of the consequences of clear felling a site in breach of a TPO which had been designed to protect an area of woodland, as distinct from (or in addition to) individual trees.

© MARTIN H GOODALL