QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Palm Developments Limited
|- and -
|The Secretary of State for Communities and Local Government
|Medway Council||Second Defendant/Interested Party
Daniel Kolinsky (instructed by Treasury Solicitors) for the Defendant
Edmund Robb (instructed by Medway Council) for the Second Defendant/Interested Party
Hearing dates: 13 and 14 January 2009
Crown Copyright ©
Mr Justice Cranston :
"4. Without prejudice to subsections (6) and (7) of section 198 [of the 1990 Act] (power to make tree preservation orders) and subject to article 5, no person shall
cut down, top, lop, uproot, wilfully damage or wilfully destroy; or
cause or permit the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of,
any tree specified in Schedule 1 to this Order or comprised in a group of trees or in a woodland so specified, except with the consent of the authority and, where such consent is given subject to conditions, in accordance with those conditions."
Article 5 provides for various exceptions to the need for consent under the Order, and articles 6 and 7 and Schedule 2 provide for the making of applications for consent where it is required. Schedule 1 to the Order is headed "Specification of Trees", and under the heading "Woodlands" provides:
|Reference on map||Description||Situation|
|W1||Mixed woodland||To the west of North Halling on land in and beside the former quarry known as Bores Hole|
|W2||Mixed woodland||To the northwest of and above the former quarry known as Bores Hole|
|W3||Mixed woodland||To the east of North Halling on the embankment of the River Medway, formerly Halling Lime and Cement Works|
The map annexed to the Order shows the site as Woodland W3. Palm Developments objected to the making of the Order, but Medway Council confirmed it.
Applications for consent
(a) corridors of 2m width at 50m centres to be cleared of trees less than 75 mm at 1 m above ground, for the topographical survey, with vegetation allowed to regenerate; and
(b) a 4-metre wide corridor along the wharf, and a 4-metre wide corridor down the access track from the entrance down to the wharf, both to be kept clear of trees, shrubs and other vegetation through regular clearance works.
Palm Developments accordingly sought consent under the Order for those works and consent was granted on 18 October 2006.
"Having completed a land survey, it will be necessary to undertake a tree survey and categorise trees growing on and adjacent to the development site. You may wish to seek the advice of an arboricultural consultant or member of Medway Council's tree team to determine which trees should be included in the survey. As a general rule, you will need to engage a competent arboriculturist where there are trees greater than 75mm growing on the site or on adjacent sites and within a distance of 12 times their stem diameter. Stem diameters are to be measured at 1.5m above ground level."
Those further works, and the reasons for them, were described as follows:
|Application||Description of proposed works||Stated reason for works|
|(i)||Removal of all scrub, shrubs and saplings having a diameter of less than 75 mm at 1.5 m above ground level, in 2m wide swathes at 10m intervals Plan 3/05A||In order to undertake a levels survey|
|(ii)||Removal of all scrub, shrubs and saplings having a diameter of less than 75 mm at 1.5 m above ground level||They are not trees (as per Medway Council Guidance Note 1, dated Oct 2006)|
|(iii)||Removal of all vegetation including trees within 8m wide corridor, as shown on plan||To avoid danger to wharf users|
|(iv)||Removal of all vegetation including trees within 6m wide corridor (as shown on plan)||To permit vehicular access to the Wharf|
|(v)||Removal of all trees||Does not constitute woodland|
Throughout this judgment this numbering is maintained to describe each appeal. The Council refused each of the five applications by a decision notice dated 5 December 2006. Applications (i) to (iv) were appealed to the Secretary of State, who appointed Gyllian Grindley, "the Inspector", to prepare a report following a public inquiry. An inquiry was held on 15-18 January and 4-5 February 2008. No appeal was made against the refusal of application (v).
The Inspector's Report
"There can be no doubt in my opinion that at all stages of its life a tree is a tree, albeit that it can also initially be classified as a seedling or a sapling. However, to be of value, whether visual or ecological, a seedling tree must have germinated and be in a position to have full growth potential, i.e. not existing between gaps in a roadway, on shallow humus levels overlying built forms, or in crevices between hard surfaces and building."
The Council explained the amenity value of the woodland. It argued against the removal of small trees on the basis that "the removal of many small trees is so potentially harmful since it would remove the regeneration potential whilst greatly increasing the exposure of the remaining trees".
"Appeal (ii) sought authorisation for the removal of all saplings throughout the site. If consent were granted, the intention would be only to implement it to the extent necessary to enable the site to be explored properly there is clearly no commercial incentive to go any further. But it is difficult to predict where it will be necessary to carry out works hence the only practical course is to seek consent for removal of all small "trees", to ensure no liability. But the larger trees would remain, and the canopy would thus remain. The area would regenerate as it has done previously to the extent that that is possible or else, per Mr Bashford, it will have a limited future in any event. But unlike the access track and wharfside strip there is no intention to retain cleared area as such."
"Concerning appeals (i) and (ii) for removal of scrub, shrubs and saplings within a grid or throughout, a condition could be required to ensure regeneration after the clearance works were carried out necessary to the survey of the site. However, it is not clear from the applications whether it was ever the appellants' intention to permit regeneration or to continue to keep the undergrowth cleared."
"102. Before I arrive at that analysis however, it is necessary to comment on the appellant's submissions concerning "what can be preserved" in terms of woodland [45 onward]. My starting point must be paragraph 2.2 of the Blue Book which is worth quoting in full
103. So, from the date of a TPO, any vegetation that germinates and reaches a size that one would ordinarily term a "tree" is protected. But what of this plant between the germination / seedling / sapling stage and the time when it can ordinarily be termed a tree? There is no authoritative guidance on this, save for the text above. But if the whole purpose of the TPO is to safeguard the woodland as a whole, then there must be some common-sense commitment to regeneration in the form of the trees reproducing themselves or re-growth (as in the coppice example quoted in Bullock ) The end result of an application such as (ii) to remove all scrub, shrubs and saplings having a diameter of less that 75 mm at 1.5 m above ground level would be the extinguishment of the woodland after the death of the remaining larger trees. This cannot be right because it does not further the stated purpose of a woodland TPO "to safeguard the woodland unit as a whole."
104. [I]t seems to me that, as a woodland unit, vegetation that can ordinarily be called 'trees' cannot be considered in isolation from the scrub, shrub and saplings within it. This is because these will, in time, carry on that woodland unit as a whole. If these are removed leaving only the larger trees, then the woodland will ultimately disappear as the natural cycle of regeneration, whereby saplings grow up to replace mature trees, would stop. This cannot be right as it would fail to benefit the woodland
105. Mr Bashford, for the appellants, went further and stated 'there can be no doubt in my opinion that at all stages in its life a tree is a tree, albeit that it can also initially be classified as a seedling or a sapling [my emphasis]. Hence it does not seem to me to matter very much whether some vegetation is freshly germinated, a seedling, 1m tall, or any other size. What matters is that it is a tree, in a woodland, and it is necessary for it to remain in the wood for the continuation of the woodland unit as a whole.
106. It could be argued that it is difficult to reconcile this view [that it does not matter very much whether some vegetation is freshly germinated, a seedling, 1m tall, or any other size] with the phrase 'as far as the TPO is concerned, only the cutting down, destruction or carrying out of work on trees within the woodland area is prohibited', but I would argue that within a woodland situation, at least, a 'tree' may include a tree at all stages of its life."
[T]he vegetation is so close that roots will be entwined in a mat and trunks are close together. Removing smaller elements without causing harm to anything remaining would be impractical.
Moreover, in the Inspector's view the stated intention to leave trees over a certain size would be impractical, and there was no arboricultural imperative to carry out the clearance work. In respect of appeal (ii), the Inspector identified the harm caused as essentially that discussed in respect of appeal (i), but on a greater scale.
The Secretary of State's decision
The 1990 Act
"(1) If it appears to a local planning authority that it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area, they may for that purpose make an order with respect to such trees, groups of trees or woodlands as may be specified in the order.
(2) An order under subsection (1) is in this Act referred to as a 'tree preservation order'.
(3) A tree preservation order may, in particular, make provision
(a) for prohibiting (subject to any exemptions for which provision may be made by the order) the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees except with the consent of the local planning authority, and for enabling that authority to give their consent subject to conditions;
(b) for securing the replanting, in such manner as may be prescribed by or under the order, of any part of a woodland area which is felled in the course of forestry operations permitted by or under the order;
(c) for applying, in relation to any consent under the order, and to applications for such consent, any of the provisions of this Act mentioned in subsection (4), subject to such adaptations and modifications as may be specified in the order.
(5) A tree preservation order may be made so as to apply, in relation to trees to be planted pursuant to any such conditions as are mentioned in section 197(a), as from time when those trees are planted."
Subsection (3) is to be repealed under the Planning Act 2008.
"In the Secretary of State's view, trees which are planted or grow naturally within the woodland area after the TPO is made are also protected by the TPO. This is because the purpose of the TPO is to safeguard the woodland unit as a whole, which depends on regeneration or new planting. But as far as the TPO is concerned, only the cutting down, destruction or carrying out of work on trees within the woodland area is prohibited; whether or not seedlings, for example, are 'trees' for the purposes of the Act would be a matter for the Courts to decide in the circumstances of the particular case."
In relation to beneficial management work in a woodland, the Blue Book says at paragraph 3.16:
"A woodland TPO should not be used as a means of hindering beneficial management work, which may include regular felling and thinning. Whilst LPAs may believe it expedient, as a last resort, to make TPOs in respect of woodlands, they are advised (whether or not they make a TPO) to encourage landowners to bring their woodlands into proper management under the grant schemes run by the Forestry Commission."
What is a tree? Dictionary definitions
"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. Compare with Shrub (in general use) any bush, shrub, or herbaceous plant with a tall erect stem, e.g. a banana plant."
The entry in Chambers Dictionary is
"a large plant with a single branched woody trunk (sometimes loosely applied)."
"Sapling" is defined by the Oxford Dictionary as "a young tree, especially one with a slender trunk".
"A woody plant distinguished from a shrub in part by its larger size and in part from having a single, or at least only a few, main stems" (Gray, Dictionary of Biological Sciences)
"A tall, woody perennial plant having a well marked trunk with few or no branches persisting from the base" (George Usher, Dictionary on Botany)
"A woody, perennial plant with a main axis or trunk which bears branches" (Edward Steen, Dictionary of Biology)
Alan Mitchell, in his Field Guide to Trees of Britain and North Europe, (1974) says a tree is:
"a woody, perennial plant which can attain a stature of 6m or more on a single stem. The stem may divide low down, but it must do so above ground level. the Hawthorn qualifies because there are a few specimens over 10m tall with a single bole, although this plant is seen almost everywhere as a low shrub with many stems. The Elderberry and Dogwood, however, do not qualify for inclusion. The Hazel has been given the benefit of the doubt."
As for "bush", the Oxford Dictionary defines it as "a shrub or clump of shrubs with stems of moderate length". "Shrub" is said to be "a woody plant which is smaller than a tree and has several main stems arising at or near the ground", and "scrub", vegetation consisting mainly of brushwood or stunted forest growth."
Treatment of trees etc in the law generally
Forestry Act 1967
"(1) A felling licence granted by the Commissioners shall be required for the felling of growing trees, except in a case where by or under the following provisions of this Part of this Act this subsection is expressed not to apply.
(2) Subsection (1) above does not apply
(a) to the felling of trees with a diameter not exceeding [8 centimetres] or, in the case of coppice or underwood, with a diameter not exceeding [15 centimetres].
Various other exemptions are contained in the Act and regulations. "Tree", "coppice" and "underwood" are defined in neither the Act nor regulations. Nor is there any provision extending the word "trees" to include bushes, shrubs, hedges or other vegetation. The minimum size provisions on the face of the statute make it plain that most, if not all shrubs and bushes, are excluded.
The case law on tree preservation orders
"Furthermore, I must say that there is an ambiguity in this Act and in the order. We are not told what is a 'tree'. Many bushes and saplings are certainly not "trees". In woodland like this, it is often, from the agricultural point of view (especially in a derelict area such as this) very important to get out the bushes, scrub and saplings and to replant as, indeed, Mr Batchelor was doing. There is no definition of 'tree'. I should have though that in woodland it ought to be something over seven or eight inches [178 203 mm] in diameter. I do not know that any of the trees referred to here would be of that diameter" (at 189).
"A number of commentators at the time pointed out that this could not be right. In the first place, what is a sapling, if not a small tree? Thus, the 1990 Act itself provides that a tree preservation order may apply to a "tree" newly planted as a result of a planning condition or a replanting notice, which is likely to be a sapling. Secondly, there is no basis for the size limitation suggested. The Forestry Act 1967, as originally enacted, refers to "the felling of trees with a diameter not exceeding three inches, or in the case of coppice or underwood, with a diameter not exceeding six inches", which suggests that small plants can be trees. The TCP (Trees) Regulations 1999 refer to a "tree whose diameter does not exceed 75 millimetres" (paragraph 15.6.6 [footnotes omitted]).
"Obviously, those observations, though obiter, are entitled to great respect, but I have come to the conclusion that I ought not to follow them. In the first place, it is plain, on the terms of the order, that there is room and proper provision for applying for consent, so that the fact that the order goes to small trees does not prevent, provided that consent has been given, getting out bushes, scrub, or saplings. Bushes and scrub nobody, I suppose, would call "trees", nor, indeed, shrubs, but it seems to me that anything that ordinarily one would call a tree is a 'tree' within this group of sections in the Act of 1971 [the predecessor to Ch I of Pt III of the 1990 Act]. It seems to me that, if it were not so, it would be difficult to apply section 59, which relates to the imposition of conditions for the planting of trees, which in the nature of things are quite likely to be saplings, or section 62, which makes provision for the replacement of trees, which again in the nature of things are likely to be replaced by saplings [respectively the predecessors to sections 197 and 206 of the 1990 Act]. (at 251).
"Further, having regard to the way in which the trees are identified and described in Schedule 1 to the [tree preservation] order and to the annexed map, and indeed to general considerations as to what is or is not an amenity, we think that one of the relevant circumstances which a forester could or should take into account in deciding whether a given injured tree should be felled is its situation: a tree adjoining a highway, for instance, needs greater stability and more vigorous life than a similar tree in a country field and the former may thus, by reason of its position alone, be destroyed in contravention of the order by a lesser injury than would be needed to destroy the latter" (at 435).
Claimant's submissions on tree preservation orders
Saplings are trees and woodland orders cover future trees
THE SECTION 288 APPLICATION
First ground: the Inspector's assessment of the effect of the proposed works on the woodland.
Second ground: the evidence of Bashford as to the definition of a tree
Third ground: failure to have regard to Government policy
Fourth ground: failure by the Secretary of State to give reasons
Fifth ground: the entwined roots
JUDICIAL REVIEW OF COSTS DECISION
The Costs Decision
"..I remind myself that it was the Inspector who heard all of the evidence. He heard the witnesses; he heard the cross-examination; he saw the site; he was in the best possible position to decide....... It is almost impossible, sitting in this jurisdiction, the Inspector having formed such a view, having heard and assessed all the evidence, for this court to be in a position to say that such a decision is Wednesbury perverse
The decision whether or not to make an award of costs is pre-eminently a discretionary matter, and the Inspector who actually heard the evidence is in the best position to judge, not merely whether or not the evidence is well founded in terms of the planning merits but also whether or not a party has or has not acted unreasonably."
Submissions and conclusion on costs
Section 288 application is dismissed and permission to proceed with judicial review is refused.