England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/03/2015

MR JUSTICE HOLGATE:

Introduction

1. The Claimant, Distinctive Properties (Ascot) Ltd, appeals under s 289(2) of the Town and County Planning Act 1990 (TCPA 1990) against the decision of an Inspector given on behalf of the First Respondent, the Secretary of State for Communities and Local Government, by letter dated 15 August 2014. The appeal is brought with the permission of Gilbart J granted on 14 November 2014.
2. The Inspector dismissed the Claimant's appeal under section 208 against a tree replacement notice issued on 15 January 2014 by the Second Respondent, the Royal Borough of Windsor and Maidenhead ("the Council") pursuant to section 207. The Inspector conducted a hearing and a site visit on 3 June 2014.
3. The Claimant is the freehold owner of land known as Blacknest Park, Whitmore Lane, Sunningdale, Berkshire. The notice alleged that between April and May 2012 an area of woodland covering about 0.8ha had been "removed, uprooted or destroyed" in contravention of a Tree Preservation Order ("TPO"). In effect the notice complained that the Claimant had failed to comply with the duty under section 206 to plant trees to replace those trees which had been so removed. It stated that in the circumstances a planting scheme for the re-establishment of woodland was required. The notice specified the species to be planted and the planting density, namely a uniform spacing of 2.5m x 2.5m, amounting to 1280 trees in total. The notice allowed a period of 10 months for the Claimant for compliance, beginning with the date on which it was to take effect, 15 February 2014. However, the effect of the Claimant's appeals to the Secretary of State and then to the High Court has been to suspend the operation of the notice (sections 208(6) and 289(4B) of the TCPA 1990).
4. It is important to note that although the woodland removed had included some substantial trees, the notice only required the planting of trees 60cm to 90cm in height, that is to say saplings or "whips". The Claimant has not criticised the Council's approach of requiring such young trees to be planted, as opposed to more mature specimens. This was considered to be an appropriate way of re-establishing the trees which had comprised the W2 woodland. Not surprisingly, the notice added a requirement that the trees be maintained in order to promote their establishment, but allowed for a mortality rate of up to 15% during that process.
5. The relevant TPO was the Royal Borough of Windsor and Maidenhead Order No. 36 of 2004, dated 24 June 2004. Article 4 provided that (subject to the exemptions in article 5) no person shall cut down, top, lop, uproot, wilfully damage, or wilfully destroy any tree specified in schedule 1 to the order (or cause or permit any such acts), save with the consent of the Council. Schedule 1 defined two areas of woodland, marked by a continuous black line on the plan annexed, and referred to as W1 and W2. The section 207 notice related to the failure to replant trees removed from W2 which, according to the description in the TPO, covered "all trees of whatever species".
6. I note that part of the evidence submitted in the appeal on behalf of the Claimant by Julian Forbes-Laird, an expert aboriculturalist, criticised the TPO's description of W2, "all trees of whatever species" for using "excruciatingly vague language" (see rebuttal proof paragraphs 3.4.2 – 3.4.3). Ignoring the hyperbole, the short answer is that the description was not legally uncertain. The order meant exactly what it said. Any specimen qualifying as a "tree" fell within the scope of the restrictions contained in the TPO. In any event, as emerged during oral argument in this appeal, there was no real issue before the Inspector as to what should be understood in the legislation by the word "tree". There should not have been any doubt therefore as to the obligations imposed by the TPO before the Claimant gave instructions for works to be carried out.
7. Furthermore, there would have been a proper opportunity in 2004 to challenge the language used in the TPO to describe the woodland. Nothing has been said as to whether or not that opportunity was taken. Either way, the Claimant bought the land in 2010 subject to the TPO and the obligations which went with it (see section 206(5) of TCPA 1990).
8. In summary the Claimant raises four grounds of challenge:-

(i) The Inspector erred in law by upholding a notice which required more trees to be planted than, according to the evidence, had been removed, uprooted or destroyed;

(ii) The Inspector erred in law by holding that the word "tree" included "potential trees" and "seedlings".

(iii) The Inspector failed to give adequate reasons for his decision in that he failed to make a finding on the number of trees cleared from the site in 2012;

(iv) If the Inspector did conclude that the Claimant had removed more than 27 trees, there was no evidence before him to support that conclusion.

Statutory Framework

9. Chapter I of part VIII of the TCPA 1990 deals with trees.
10. Section 197 imposes a duty upon a local planning authority to ensure, whenever appropriate, that in granting planning permission adequate provision is made through conditions for the preservation or planting of "trees".
11. Section 198 Power to make tree preservation orders

"(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".

(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 the time when those trees are planted."

12. The Act does not contain a definition of "tree". The issue raised by the Claimant concerning the extent to which the definition applies to young specimens (to use a neutral word) applies just as much to section 197 as to sections 198 and 206 to 208. A restrictive approach as to what may be considered to be a "tree" would not only affect the scope of the protection afforded by TPOs, but also the ambit of the local planning authority's power to require the preservation or planting of trees when determining planning applications.
13. Section 206 Replacement of trees

"(1) If any tree in respect of which a tree preservation order is for the time being in force—

(a) is removed, uprooted or destroyed in contravention of the tree preservation regulations, or

(b) except in the case of a tree to which the order applies as part of a woodland, is removed, uprooted or destroyed or dies at a prescribed time

it shall be the duty of the owner to plant another tree of an appropriate size and species at the same place as soon as he reasonably can"

(2) The duty imposed by subsection (1) does not apply to an owner if on application by him the local planning authority dispense with it.

(3) In respect of trees in a woodland it shall be sufficient for the purposes of this section to replace the trees removed, uprooted or destroyed by planting the same number of trees—

(a) on or near the land on which the trees removed, uprooted or destroyed stood, or

(b) on such other land as may be agreed between the local planning authority and the owner of the land,

and in such places as may be designated by the local planning authority.

(4) In relation to any tree planted pursuant to this section, the relevant tree preservation order shall apply as it applied to the original tree.

(5) The duty imposed by subsection (1) on the owner of any land shall attach to the person who is from time to time the owner of the land."

14. With effect from 6 April 2012, section 206 (1)(a) was amended by the Planning Act 2008 to substitute "tree preservations regulations" for the former reference to a tree preservation order. "Tree preservation regulations" refers to regulations made under section 202A. The relevant regulations, the Town and County Planning (Tree Preservation) (England) Regulations 2012 (SI 2012 No. 605), also came into force on 6 April 2012. Regulations 13 and 14 set out the circumstances in which a consent is required for works affecting trees protected by a TPO. These provisions are similar to those previously contained in TPOs according to the form prescribed by the earlier Town and Country Planning (Trees) Regulations 1999 (SI 1999 No 1892).
15. Section 207 Enforcement of duties as to replacement of trees

"(1) If it appears to the local planning authority that—

(a) the provisions of section 206, or

(b) any conditions of a consent given under tree preservation regulations which require the replacement of trees,

are not complied with in the case of any tree or trees, that authority may serve on the owner of the land a notice requiring him, within such period as may be specified in the notice, to plant a tree or trees of such a size and species as may be so specified

(2) A notice under subsection (1) may only be served within four years from the date of the alleged failure to comply with those provisions or conditions.

(3) A notice under subsection (1) shall specify a period at the end of which it is to take effect.

(4) The specified period shall be a period of not less than twenty-eight days beginning with the date of service of the notice.

(5) The duty imposed by section 206(1) may only be enforced as provided by this section and not otherwise.

16. Section 208 Appeals against s 207 notices

"(1) A person on whom a notice under section 207(1) is served may appeal to the Secretary of State against the notice on any of the following grounds—

(a) that the provisions of section 206 or, as the case may be, the conditions mentioned in section 207(1)(b) are not applicable or have been complied with;

(aa) that in all the circumstances of the case the duty imposed by section 206(1) should be dispensed with in relation to any tree;

(b) that the requirements of the notice are unreasonable in respect of the period or the size or species of trees specified in it;

(c), (d) ….

(4) The notice shall—

(a) indicate the grounds of the appeal,

(b) state the facts on which the appeal is based, and

(c) …

(6) Where such an appeal is brought, the notice under section 207(1) shall be of no effect pending the final determination or the withdrawal of the appeal.

(7) On such an appeal the Secretary of State may—

(a) correct any defect, error or misdescription in the notice; or

(b) vary any of its requirements,

if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority.

(8) Where the Secretary of State determines to allow the appeal, he may quash the notice.

(8A) The Secretary of State shall give any directions necessary to give effect to his determination on the appeal."

17. Section 210 Penalties for non-compliance with tree preservation order

"(1) If any person, in contravention of a tree preservation order—

(a) cuts down, uproots or wilfully destroys a tree, or

(b) wilfully damages, tops or lops a tree in such a manner as to be likely to destroy it,

he shall be guilty of an offence."

18. Section 289 (2) enables the Claimant to appeal against the Inspector's decision but only on a "point of law". Essentially that expression embraces established public law grounds of challenge (Ashbridge v Minister of Housing and Local Government [1965] 1 WLR 1320, 1326).

The issues before the Inspector

19. Through its grounds of appeal and the evidence of Mr. Forbes-Laird the Claimant argued that:-

(i) The Council's notice was a nullity because the Claimant had not delayed in complying with its duty under section 206(1) for an unreasonable period of time before the notice was served (paragraphs 1.3.3, 5.2.1 and 5.2.6 of the proof of Mr. Forbes-Laird);

(ii) The Council had not put the Claimant on notice of any breach of the duty to replant under section 206 before serving the section 207 notice and so the notice should be treated as premature and invalid (paragraphs 1.3.2, 5.2.1, 5.2.5 and 5.2.8 of Mr Forbes-Laird's proof);

(iii) The notice served was ultra vires (a) in requiring more trees to be planted than had been removed within the W2 area of the TPO and (b) in requiring replacement by reference to a stocking density (paragraphs 1.3.2 and 5.3.4 of the proof and paragraph 3.5 of the rebuttal proof)

20. Of these three points only the third is pursued in this Court. If it should succeed, the Secretary of State would have to redetermine the section 208 appeal. How then do points (i) and (ii) now stand? Point (i) made an allegation of a fundamental nature. If the notice fell to be treated as a nullity then it would be unnecessary for the Claimant's other contentions to be considered. Plainly, subject to the requirement to obtain the Court's permission, the nullity argument could have been raised on this appeal under section 289. The same is true of the second argument concerning the invalidity of the section 207 notice on the grounds of its alleged prematurity.
21. The Claimant has had the advantage of being represented by experienced Counsel, Mr Christopher Boyle QC, who confirmed that points (i) and (ii) in paragraph 19 above are not being raised in the High Court and, in the event of the appeal being allowed, could not be raised on any redetermination by the Secretary of State. In my judgment he is correct. For my part I see no merit in these points at all, but, given that they are not being raised in this appeal, the Court is unable to pronounce any formal decision on them. Nevertheless, it is a well-established principle that there has to be finality in litigation, and so a party can be debarred from raising points subsequently which he could have brought forward in earlier proceedings but did not do so (see e.g. Henderson v Henderson (1843) 3 Hare 100, 114-115, Johnson v Gore Wood & Co [2002] 2 AC 1, Thrasyvoulou v Thrasyvoulou [1990] 2 AC 273). On that basis, the Claimant would not be entitled to rely on points of law which could have been but were not pursued in this appeal, notably the two contentions to which I have referred.
22. Paragraph 12 of the Claimant's skeleton says that officers of the Council visited the site in 2012 and 2013 but did not raise any concerns as to works carried out within the W2 woodland. The Claimant complains that the Council has refused to provide the enforcement officer's notes in relation to his visits. But the Court was told that this point was not raised with the Inspector and it does not form part of any ground of challenge in this appeal. The Claimant could have asked the Inspector to convert the hearing into an inquiry so that it could rely upon section 250(2) of the Local Government Act 1972 in order to apply for a summons requiring the production of these documents. But that was not done.

Evidence before the Inspector

23. I summarise the evidence before the Inspector on the issue as to the number of trees formerly present on the cleared area of land.
24. Mr. Forbes-Laird made the following points:-

(i) The Claimant instructed the contractors to remove "vegetation" chiefly comprising Rhododendron and cherry laurel. They were made aware of the TPO and instructed not to remove trees (paragraph 4.1 of main proof);

(ii) However, by reference to the Council's photographs of 27 tree stumps remaining on the site, it was accepted that 21 trees had been removed which the Claimant was obliged to replace under section 206 (paragraphs 4.2 to 4.5). The difference of 6 trees related to specimens no longer protected by the TPO;

(iii) An aerial photograph in 2010 revealed the presence of 139 "vegetation masses" and so the number of trees formerly present could have been up to 139. However, using LIDAR data from 2009 the vast majority of vegetation was estimated to have been 2m-4m in height. Whilst that evidence was not conclusive, it "tends to support the assertions of my client and [the contractors] that the vegetation clearance works were directed towards unwelcome shrubbery of Rhododendron and cherry laurel". But he went on to add "It is accepted that the low resolution of the LIDAR data could potentially allow isolated spindly trees to escape detection. However, it is unlikely that massed trees comprising established woodland would fall within this description" (paragraphs 5.3.1, 5.4.2 to 5.4.4).

(iv) The estimate of 60 trees based upon a "tree protection plan" produced to support a planning application in 2000 for the construction of three large villas was unreliable because the "tree symbol" used by topographical surveyors is frequently used for large shrubs as well as trees and secondly, "there is no evidence that these were not lost to natural wastage" in the ensuing thirteen years (paragraphs 3.3.2, 5.4.1 and 5.4.5);

(v) "Having removed the figures of 139 and up to 60, this leaves only the head-count of 21 trees" (paragraph 5.4.6).

Much of Mr. Forbes-Laird's proof and rebuttal concentrated on the nullity and invalidity points to which I have referred.

25. Under ground 2 the Claimant accepts that any trees as small as 0.6 to 0.9 m in height which were present within the W2 area before the clearance works in April to May 2012 were protected by the TPO. Self-evidently, therefore, it was necessary for care to be taken when giving instructions for the removal of vegetation and when implementing any such instructions. It does not appear that a survey by an expert aboriculturalist was carried out before removing "vegetation" from the W2 area in order to identify trees which should not be removed or harmed, or alternatively shrubs or other items which could be removed. Certainly if that was done, the material was not produced to the Inspector.
26. During this hearing the Claimant placed some emphasis upon a statutory declaration by Mr. Chris Logsdon of 21 August 2013, an employee of the Claimant's contractors, Mid Kent Fisheries. The list of appearances in the decision letter shows that although the declaration was submitted to the hearing, Mr Logsdon did not attend to answer any questions from the Inspector. In paragraph 2 of the declaration he states that:-

"assessments were made during several site visits to Blacknest Park, with the client, in order to establish a management plan and their requirements for the site. The assessments and visual inspections made prior to works were to identify the area to be cleared and to establish any licences needed to be in place prior to works commencing, and also to discuss points of interest such as TPO's, non-natives and invasive species of flora".

No further detail was given as to the approach taken. For example, the author did not state whether or not he had taken into account and assessed younger trees and saplings, including specimens down to 0.6m in height and, if so, how they were to be protected. The Claimant has not said whether the assessments were documented. If they were, it is not suggested that they were put before the Inspector.

27. Paragraph 6 of the statutory declaration stated:

"During the time of the clearance works, I spoke to the Forestry Commission who confirmed that the works were carried out in the correct manner. I also had a meeting with an Enforcement Officer from the council, on site, who agreed the way we were clearing the site was correct and due to the substance of the proposed clearance area, there were no issues with TPO's"

The declaration gave no details as to, for example, when the alleged meetings or conversations took place or with whom, and precisely what is alleged to have been said in those meetings. Once again nothing was said about the approach taken to the protection of smaller trees.

28. Although Mr Forbes-Laird relied upon the visit in April 2012 by the Enforcement Officer and two visits by the Council's Aboricultural Officer subsequent to the carrying out of the works (paragraphs 3.5.1 to 3.5.3), he too did not supply any specific details. The Claimant's positive case to the Inspector about the trees present on site before the clearance, and whether what took place during these visits would have revealed anything of significance about that particular subject was, to say the least, vague.
29. The Council's arboricultural expert was Helen Leonard. She provided a proof and attended the hearing. In summary, she made the following points:-

(i) The area which had been clear-felled corresponded with an alder/willow carr habitat identified in a landscape strategy submitted with the application for 3 villas in 2000 (paragraph 3.2);

(ii) The site lay within the Mount Pleasant Local Wildlife Site and had been wooded for many years (paragraphs 3.7 to 3.8);

(iii) The photographs of the tree stumps had been taken in April 2013, nearly a year after the clearance works had been carried out. "The Planning Enforcement Officer who visited the site at the end of the clearance works", took photographs showing a digger being used and a bonfire in which arisings were being burnt. The ground across the wet woodland floor had been disturbed and levels altered. A digger is able to rip out smaller trees and root plates. Soil alterations can cover up stumps. Therefore much of the tree removal "cannot be physically assessed" (paragraphs 3.6, 4.10 and 4.11);

"Given that the woodland has been clear felled with much material having being burnt or disposed of it cannot be assessed now, after the event, as to how many trees, including seedlings and saplings, may have been present" (paragraph 4.4)

(iv) Where a protected woodland has been "comprehensively destroyed" so that the numbers of trees removed cannot be fully quantified it would be contrary to the purposes of the legislation if the planning authority were to be unable to serve a section 207 notice. That would only encourage landowners wishing to convert a protected woodland to another use to decimate the area and thus destroy the evidence. A woodland TPO is not required to identify the individual trees protected. "It is therefore a reasonable approach to estimate the number of trees likely to have been present" (emphasis added) (paragraph 4.8);

(v) The Council has used standard planting densities for the replanting of woodlands at 2.5m tree spacings (paragraph 4.6). "It is quite possible and indeed probable that the number 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 has been provided to the contrary" (paragraph 4.7);

30. On any fair reading of its evidence, and perhaps even to the eye of a mediaeval schoolman, the Council made it plain that they had relied upon standard planting densities to estimate the number of trees formerly on site and hence the number of trees which the notice required to be planted (see the evidence summarised in points (iv) and (v) above). Indeed, the Council thought it probable that the number of trees removed exceeded the number of whips required by the notice. It is said by the Claimant under ground 2 that that opinion was tainted by the Council having referred to seedlings as well as saplings, a point which I address below. But that does not alter the fact that the Council did rely upon planting densities to estimate the number of trees removed from W2, namely a quantity at least as great as the replacement number in the notice.
31. I would add that in his rebuttal Mr. Forbes-Laird's did not refute the substance of the Council's evidence as summarised above. Instead, he continued to advance mainly legalistic arguments as to why the notice was a nullity or otherwise invalid. I note that at paragraph 3.6.2 he did seek to deal with the Council's reliance upon the likelihood of young trees having previously been present on the site, by drawing upon the statutory declaration of Mr. Logsdon. But, as I have already indicated, that statement did not identify the size of tree which the author had taken into account, and in particular whether he had take into account young saplings, and if so how (see paragraph 26 above).

The Inspector's decision letter

32. The first ground of appeal was under paragraph (a) of section 208 (1), to the effect that the duty in section 206 had been complied with. The Inspector dealt with this ground at paragraphs 5 to 7 of his decision letter which read as follows:-

"5. It is stretching credulity, in my view, to argue that at the time of confirmation, there was no woodland in the area indicated on the TRN, in 1957, or 2004. It seems to me reasonable to assume that the landowner(s) at the time(s) would have sustained objections to the TPOs if the area proposed for coverage, did not contain woodland.

6. Moreover, there is ample evidence in the material submitted with previous development proposals for the site, notably the Landscape Strategy for Blacknest Park submitted with application ref.00/79399, and the Agreement under Section 106 dated 20 October 2004 linked to planning permission granted for three detached dwellings under ref.03/84675, that the area covered by the TRN, has contained woodland.

7. The area highlighted in the TRN had no woodland in place currently and it is agreed between the parties that said area was cleared in April/May 2012. There is an issue raised on behalf of the appellant about precisely what was cleared at that time which the appellant says was mainly rhododendron and cherry laurel. However, there is an acceptance that the twenty seven stumps identified and photographed by the Council shortly after the operation took place give rise to a duty to replant replacement trees. That duty has not been complied with hence the appeal on ground (a) cannot succeed."

33. The Claimant expressly accepted that 21 trees had been cut down falling within the scope of its duty to replant "trees" (paragraphs 4.4 to 4.5 of the proof of Mr. Forbes-Laird). It was not the Claimant's case that these trees had been replanted and so it followed that the Claimant had not complied with its duty under section 206. There is no challenge to the Inspector's conclusion that the Claimant was in breach of that duty.
34. The second ground of appeal relied upon paragraph (aa) of section 208 (1), to the effect that the duty imposed by section 206 (1) to replant should, in the circumstances of the case be dispensed with. The Inspector dealt with this ground at paragraphs 8 to 9 of the decision letter which read:-

"8. Notwithstanding that, there was woodland in place when the TPO 36 of 2004 was confirmed, in the area covered by the TRN, and subsequently. This woodland is no longer in place. The judgement in Palm Developments Ltd v Secretary of State for Communities and Local Government & Medway Council [2009] EWHC 220 (Admin) held that with woodland TPOs there are no limitations in terms of size for what is to be treated as a tree. In other words, saplings are trees, and on top of that, a woodland TPO extends to all trees in a woodland, even if not in existence at the time the Order is made.

9. 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. The appeal on ground (aa) fails, therefore."

35. In those paragraphs the Inspector dealt with the reasonableness of the number of trees which the notice required to be planted. Mr Boyle QC pointed out that ground (aa) allows a landowner to ask for a dispensation from the duty to replant under section 206(1). It is not concerned with the prior question which may arise in some cases as to the number of trees which can be required to be replanted. I am inclined to agree. Nonetheless the Claimant has not advanced any ground of appeal criticising the Inspector for dealing with the "number of trees" requirement under ground (aa), rather than under ground (a). In any event, the decision letter should be read as a whole. It is not suggested that any overlapping in paragraphs 5 to 9 of the decision letter as between grounds (a) and (aa) has given rise to any error of law or prejudiced any party.
36. The last ground of appeal was advanced under paragraph (b) of section 208 (1) and raised an issue as to the reasonableness of the period for compliance allowed by the notice. The Inspector dealt with this issue in paragraphs 10 to 13 of the decision letter and extended the period from 10 months to 24 months. The appeal was successful to that extent only. Ground (b) also enabled the Claimant to challenge the size or species of the trees required to be planted but neither point was raised in the appeal.

Legal principles for reviewing an Inspector's decision

37. The general principles upon which the Court can be asked to review an Inspector's decision under section 288 of TCPA 1990 are well-established and were helpfully summarised by Lindblom J at paragraph 19 of his judgment in Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin). In my judgment, the same principles are generally applicable in a challenge under section 289(2) to a decision on an appeal under section 208.
38. The principles dealing with a complaint of inadequate reasoning were summarised in paragraph 36 of the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, 1964. Those principles were drawn from the case law reviewed at paragraphs 24 to 34. For the purposes of the present appeal it is necessary to highlight the following points:-

(i) Because the decision letter is addressed to the parties who are well aware of the issues involved and arguments deployed at the hearing it is not necessary to rehearse every point (paragraph 26);

(ii) The reasons need only deal with the main issues in dispute or the principal important controversial issues in the case (paragraphs 27 and 36).

(iii) Reasons can be briefly stated (paragraph 25)

(iv) For a challenge to succeed there must be something substantially wrong or inadequate in the reasons given (paragraph 25). The decision must give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some important matter or by failing to reach a rational decision on relevant grounds. "But such adverse inference will not be readily drawn" (paragraph 36).

Ground 2

39. Mr. Boyle Q.C. accepted that it is logical to begin with ground 2, which is concerned with the definition of a "tree" for the purposes of Chapter I of Part VIII of TCPA 1990. The Claimant accepts that the word "tree" includes saplings, but argues that it does not include seeds or seedlings. It is submitted that in so far as Cranston J suggested otherwise in Palm Developments Limited v Secretary of State for Communities and Local Government [2009] 2 P. & C.R. 16 his judgment was incorrect and should not be followed. It is submitted that the same error was made in the Council's evidence and in the Inspector's decision.
40. In the Palm case the landowner, unlike the Claimant here, sought express consents for clearance of vegetation within a woodland TPO. On an appeal the Secretary of State refused to grant the consents. The decision was challenged by the landowner on essentially two grounds: first, that woodland TPO's apply only to trees and not to shrubs or young saplings and second, that a TPO only applies to trees in existence at the date when the order was made (paragraph 35).
41. Cranston J helpfully reviewed the case law on the meaning of "tree" (paragraphs 29 to 34), along with dictionary and textbook definitions of trees, saplings, scrub and shrubs (paragraphs 23 to 24). He also referred to the Secretary of State's guidance on woodland TPO's contained in paragraph 2.2 of Tree Preservation Orders: A Guide to Good Practice ("the Blue Book") (paragraph 21 of judgment). Guidance is now to be found in the National Planning Policy Guidance. The judge laid down the following principles:-

(i) Whilst a woodland TPO may be designed to protect a woodland as a whole (i.e. plants other than trees, fungi, wildlife habitats, etc) it does so by imposing controls solely in relation to "trees" (paragraph 22);

(ii) A woodland TPO applies not only to trees in existence when the order was made, but also to those coming into existence subsequently. A woodland TPO is designed to "protect the undifferentiated mass of trees in the specified area". That purpose could not be achieved if the order applied only to the trees existing at the date when it was made. As the object is to safeguard the woodland as a whole, which depends upon regeneration or new planting, it must extend to trees which grow or are planted after the order is made (paragraph 42).

(iii) Saplings of whatever size are protected by a TPO (paragraph 40).

42. It is worth quoting in full the conclusions of Cranston J in paragraphs 39 to 41 of his judgment, which I gratefully adopt (along with the analysis at paragraphs 17 to 34):-

"39. As already noted, there is no definition in either the 1990 Act or the 1999 Regulations of "tree", "woodland", or "sapling". "Tree" must therefore mean anything that would ordinarily be regarded as a tree. Thus it would not include a shrub, a bush or scrub. There is also clear authority that it includes small trees. In Batchelor Lord Denning MR said many saplings were not trees and would need to be of over 180-200mm diameter before they could be regarded as trees. This is wrong, for the reasons Phillips J suggested in Bullock. There Phillips J held that trees in a coppice could be the subject of a tree preservation order. So Bullock is authority that a small tree is a tree. Because it was not an issue before him Phillips J did not specifically address the issue of size.

40. There is no minimum size exemption on the face of the 1990 Act or in the regulations. Where the legislator has intended a size limitation, that has been made express. In my judgment the felling licence provision in the Forestry Act 1967 is in pari materia with the tree preservation order provision of the 1990 Act. Both are directed at preserving the amenity provided by tress, woodlands or forests. The one can therefore be used to interpret the other. In the felling licence provisions of the Forestry Act 1967 a size exemption is explicit. Similarly, there are explicit, albeit different, size exemptions in the 1999 Regulations for trees in conservation areas. Given these unmistakable pronouncements of size in very similar contexts, their absence with tree preservation orders is compelling evidence that the legislation intended no comparable limitation. Therefore, in my judgment saplings of whatever size are protected by a woodland tree preservation order.

41. As far as the statutory purpose is concerned this conclusion does not raise the practical difficulties Lord Denning MR envisaged in his obiter remarks in Batchelor. The fact is that it is possible to apply for a consent order to remove saplings. That meets the objection that in a woodland a young sapling may be in an undifferentiated mass of undergrowth along with shrubs, scrub and other vegetation which are not subject to any removal restrictions. As for the example of someone in a woodland snapping off the branch of a young sapling, and therefore committing a criminal offence, that is a quite different issue and a matter for another day. In practice any difficulty will be met by the exercise of prosecutional discretion. The same applies with the other example, of someone trampling on a shoot emerging from an acorn."

43. Mr. Boyle Q.C. stated that he does not criticise any part of paragraphs 39 and 40 of Palm. Indeed, his sole criticism is directed at he very last sentence of paragraph 41. In summary it is submitted that the Judge was wrong to hold that a seedling or, for example, a shooting or rooting acorn, or other seed, can fall within the definition of a "tree", because such specimens (to use a neutral word) may never develop into a sapling and may instead fall within the definition of "scrub" which includes "stunted forest growth" (see paragraph 24 of judgment). "Scrub" falls outside the definition of "tree" (see Bullock v Secretary of State (1980) 40 P. & C.R. 246 at p.251 and Palm at paragraph 39). However, Mr. Boyle Q.C. accepted that there is not a rigid distinction between a seedling and a sapling. They form part of the continuing development of a specimen. Any distinction between the two would be a matter of degree and judgment.
44. It is necessary to recall the context in which Cranston J reached his conclusions. First, the Inspector there had recorded the Appellant's case as being that it was unprofitable to debate what is a tree, in the sense that an acorn grows into a sapling and then into a fully-grown tree, but "there is bound always to be uncertainty as to what is the lower limit (by either age or size) below which the term is inappropriate" (paragraph 11 of the judgment). Second, the Appellant's own expert stated his firm 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" (paragraph 10 of the judgment). Third, the Inspector relied upon that approach and in reaching his conclusion (paragraph 13 of the judgment). So the criticism in the Appellant's second ground of challenge that the Inspector had failed to exclude germinated seeds and seedlings from the definition of a "tree", was rejected by Cranston J on the basis that the Inspector had been entitled to adopt the evidence of the Appellant's expert. The proposition of law put forward in the High Court was inconsistent with the Appellant's evidence before the Inspector (paragraphs 52 to 53 of judgment). Read in context I do not think that in the last sentence of paragraph 41 of his judgment Cranston J decided any principle of law. Instead, he gave a practical response to the problem posed. In any event, for the reasons set out below I do not need to resolve the legal issue raised by Mr. Boyle.
45. A similar situation arose in the present case. Mr. Boyle Q.C. criticised the evidence of Ms. Leonard on behalf of the Council for treating seedlings as falling within the definition of "tree" (see paragraphs 4.4 and 4.7). He also criticised references to the seed bearing trees in the vicinity. But on a fair reading the Council's evidence did not rely upon mere seeds as such, but on the likelihood of seedlings and saplings having developed in the W2 area (see e.g. Willow and Ash can seed prolifically preceded by the phrase "there may have been plenty of seedlings/saplings on site prior to the clearance works".
46. In his main proof Mr. Forbes-Laird did not deal with the "young tree" issue. Even more telling, in point 3 of paragraph 3.3 of his rebuttal, Mr. Forbes-Laird quoted Ms. Leonard's reference to "seedling/saplings on site prior to the clearance works" and did not make any criticism at all of her inclusion of seedlings. Similarly, he did not raise the point that seedlings should be excluded from "trees" because of the inability to differentiate them from the scrub in sense of "stunted forest growth". His response at paragraphs 3.6.1 to 3.6.4 simply asserted that there were no young trees in the cleared area relying upon the declaration of Mr. Logsdon which was defective in this respect.
47. Mr. Boyle Q.C. accepted that paragraph 8 of the Inspector's decision letter, summarising the relevant part of the decision on Palm, was impeccable. It refers to "saplings" as "trees". Mr. Boyle accepted that ground 2 depends upon the four words in the first sentence of paragraph 9 of the decision letter which follow the reference to "saplings", namely "or other potential trees". He submitted that the Inspector had been influenced by the Council's reference to "seedlings" and that the word "potential" indicated that he was taking into account specimens which had not become trees.
48. Ground 2 is untenable. The Inspector was entitled to produce a decision letter with reasons briefly stated and addressed to an audience familiar with the arguments and points. The position facing the Inspector was that the Claimant did not disagree with the Council's use of the term "seedlings/saplings". The Inspector was entitled to rely upon that uncontroversial position. The words "and other potential trees" should not be read as referring to specimens which are not trees at all, but simply to the unchallenged "seedlings/saplings" term used by the Council. For these reasons I reject ground 2.
49. I should add that Mr. Boyle has sought in effect to argue a point of law which was not canvassed before the Inspector. Whilst it is not impossible in proceedings under sections 288 or 289 of TCPA 1990 to raise a point of law for the first time, the general principle is that that should not be allowed where the point would have required further fact-finding or investigation by the Inspector. I am firmly of the view that if the Council's evidence had used the term "saplings" rather than "seedlings/saplings", the outcome of the appeal would have been no different, when viewed in the context of the evidence overall. I take into account the burden of proof borne by the Claimant (see ground 1 below) and the paucity of the evidence produced on his behalf. The Inspector criticised the Claimant's case for concentrating simply on the number of tree stumps that could be seen in the April 2013 photographs. But even if a different view were to be taken of the inclusion by the Council of the word "seedlings", the point now sought to be raised by the Claimant would have required further evidence and examination at the hearing and finding and so should not be allowed to be pursued at this stage (see e.g. South Oxfordshire District Council v Secretary of State [2000] 2 All ER 667; R (Newsmith Stainless Ltd) v Secretary of State [2001] EWHC Admin 74 at paras 13 to 16; HJ Banks & Co Ltd v Secretary of State [1997] 2 P.L.R. 50). For these further reasons also, I reject ground 2.

Ground 1

50. The Claimant complains that the Inspector erred in law by upholding a notice which required more trees to be planted than on the evidence had been removed.
51. Mr. Boyle Q.C. submits that:-

(i) The duty to replace trees in respect of all types of TPO is given by section 206(1);

(ii) The obligation is to plant a tree as a "replacement" for a tree which is removed, uprooted, destroyed or dies;

(iii) That duty is modified by section 206(3) in the case of a woodland TPO by allowing the replacement to be located or near the land where the TPO woodland formerly stood or elsewhere if agreed by the local planning authority. But subsection (3) confirms that the obligation is to plant the same number of trees as those removed or destroyed;

(iv) Section 206 does not require the replacement trees to be the same size or species as those lost. Instead they must be "appropriate" in those respects. But the statute does not provide that the number of replacement trees should simply be "appropriate";

(v) Where the duty under section 206(1) has not been complied with "in the case of any tree or trees", the local planning authority may require the landowner "to plant a tree or trees" of such size and species as may be specified in a notice (section 207(1));

(vi) Section 208(1) gives the landowner a right of appeal. Ground (b) allows the "reasonableness" of the size or species specified in the notice to be challenged, but not the number of replacement trees required. An issue as to the number of replacement trees required can only be raised under ground (a) which refers to the duty under section 206.

52. At the heart of the Claimant's ground lies the contention that the obligation in section 206(1) and (3) to replace the same number of trees as have been removed or destroyed defines the scope of the authority's power to serve a notice under section 207 requiring the replacement of trees.
53. It seems to me that central to the Claimant's argument are the phrases in section 207(1) "are not complied with in the case of any tree or trees" and "to plant a tree or trees…..as may be so specified" [i.e. in the notice]. The first phrase defines the trigger for the service of a notice. The second phrase defines the content of the notice, but it could be said that it has not been so worded as to require the same or identical number of trees to be replanted as have been destroyed. The second phrase is expressed differently and arguably is not delimited by the first phrase or by the duty in section 206. Instead, it could be argued that the second phrase gives the authority a discretion as to the number of trees specified in the notice so long as they can be said to represent a "replacement" of those lost.
54. Mr. Kimblin suggested that an authority's power to specify the number of trees required is not restricted to the same number as has been lost. There may be practical considerations which would make it justifiable to require a greater number of replacement trees in the case, say, of a woodland where it is not thought appropriate to require substantial, mature trees which have been destroyed to be replaced by specimens of equivalent size. In such a case the statutory purpose of sections 206 to 208 (to protect the woodland as a whole) could be met by planting a larger number of smaller trees, such as whips, making an allowance for mortality rates. In other circumstances the local authority may consider that there are sound reasons for serving a notice which requires fewer trees, rather than the same, number of trees to be planted as previously existed. It could be said that this approach is purposive and accords with the discretion allowed in parts of the planning enforcement code (see e.g. section 173(3) to (7)). But this point was only mentioned briefly in the Secretary of State's skeleton (paragraph 25) and was not developed in any detail in oral argument. The legislative antecedents have not been put before the Court and it may be that there are other authorities which ought to be considered. I therefore do not feel able to resolve the issue on the materials I have seen and in this case I do not need to do so. I will proceed on the assumption that the analysis of Mr. Boyle Q.C. summarised in paragraph 51 above is correct.
55. In Nelsovil v Minister of Housing and Local Government [1962] 1WLR 404 the Divisional Court held that in an appeal by a landowner against an enforcement notice served under what is now section 172 of the TCPA 1990, the appellant bears the burden of proof in relation to the grounds of appeal upon which he relies (see pp. 408-9). In Nelsovil the appellant argued that the onus lies on the planning authority to establish the necessary features of the notice they have served and the facts they rely upon as showing that they are entitled to restrain the use complained of. It was also submitted that the authority should prove that the development began within the relevant period conferring immunity against enforcement action. The Court firmly rejected those arguments. Widgery J pointed out that there is no hardship in requiring the landowner to prove when development began. It is the developer who knows the relevant facts. Although someone who purchases the land after the commencement of development may be in a less advantageous position in that respect, as an assignee he can acquire no wider rights than belonged to his assignor (p. 409). It is also well established that in planning enforcement cases the standard of proof is the civil standard.
56. Mr. Boyle Q.C. accepted that in an appeal under section 208 of the TCPA 1990 the burden of proof lies on the appellant in relation to his grounds of appeal. It seems to me that that must be correct. I cannot see any principle or reason not to apply Nelsovil to such an appeal. It also follows that there is no burden of proof on the local planning authority to establish facts showing that a breach of the duty under section 206 occurred or to substantiate the replacement requirements imposed by the notice, which would include the number of trees to be planted. On the main issue raised in the present appeal, Mr. Boyle Q.C. rightly accepted that the burden lay on the Claimant to show that the number of trees removed or destroyed, or the estimated number of such trees, was less than the replacement number specified in the section 207 notice.
57. As in Nelsovil, the legal principles set out above involve no real hardship for landowners. A landowner is expected to comply with the TPO and the applicable legislation. If a consent is required for works then it should be obtained. Where trees have been removed or destroyed without the necessary consent then section 206(1) imposes a statutory duty upon the landowner to replant the same number of trees. Where a landowner has given instructions for a wood to be cleared without removing protected trees, then he is, or should be, in a position to produce sufficient evidence on what existed before the works began (if necessary by producing a proper survey), what works have been carried out, the actual or estimated number of trees removed and where they were located. Those burdens are simply the consequence of being an owner of land subject to a TPO.
58. There is a further good reason as to why the burden of proof should rest on the landowner in the present type of case. Typically a breach of section 106(1) will involve the removal of trees and, in effect, the destruction of the evidence which would have directly answered the question "how many trees should be replaced". This concern applies with even greater force given that the protection of a TPO extends to small trees and saplings.
59. Evidential difficulties arising from the destruction of the subject-matter of a case may arise in many areas of the law: for example, criminal cases, tortious conversion of goods, damages for loss of a chance, and valuations in property disputes. In such cases a presumption may be applied adverse to the party who destroyed evidence, or an adverse inference may be drawn (see e.g. Cross and Tapper on Evidence (12^th Edition – page 56)). Mr. Boyle Q.C. accepted that in the present type of case the removal of protected trees in a woodland without consent could result in adverse inferences being drawn against the landowner when the evidence on the number of trees to be replaced comes to be examined in a section 208 appeal.
60. It is common ground in the present case that where trees are removed from a TPO woodland which would have contained young trees and saplings, it will usually be impossible to produce evidence as to the precise number of trees which have been removed, even to the civil standard of proof. Instead, the best evidence which a party will be able to supply will normally only be an estimate of that number. I agree with these points.
61. Mr. Boyle Q.C. went on to accept that if in the present case the Council had relied upon planting densities for the species specified in the tree replacement notice as an estimate of the trees requiring to be replaced then there would have been no error of law in the notice appealed. In this case that would refer to the 1280 whips required to be planted. However, he drew a distinction between an authority's reliance upon planting densities for the purposes of giving an estimate of the number of trees lost in order to enforce the duty under section 206(1), as opposed to an authority's use of such material in order to achieve a replacement "woodland" or a desired arboricultural objective.
62. As I have set out in paragraphs 29 to 30 above, in my judgment it is perfectly plain that in this case the Council relied upon standard planting densities as a reasonable estimate of the protected trees lost when part of the W2 woodland was cleared. When paragraphs 4.4 to 4.8 Ms. Leonard's proof are read fairly and as a whole, it is clear that given the impossibility of stating the actual number of trees lost because of the destruction which had taken place, she recognised that only an estimate could be provided. She correctly took into account the relevance of young trees and saplings (see also paragraphs 45 to 46 and 48 above) and expressed her expert judgment that they would have been present in such numbers that it was probable that the 1280 trees required by the section 207 notice to be planted were fewer in number than those which has been removed. So it cannot be said that planting densities were used simply for the purpose of achieving a woodland or a desired objective. Instead, that material was used to provide a conservative estimate of the number of trees needing to be replaced.
63. It was open to the Claimant's representative to challenge that approach to the estimation of the number of trees lost. But Mr. Forbes-Laird did not do so. He criticised the use of standard stocking or planting densities as being wrong as a matter of legal principle (paragraph 3.5 of rebuttal). But he failed to recognise the point which Mr. Boyle Q.C. has accepted in this appeal, that such densities may nevertheless be used in order to estimate the number of trees requiring to be replaced. Because of that failure Mr. Forbes-Laird did not deem it necessary to challenge the Council's judgment as to which planting densities should be used, or to use that technique himself. Instead, he contented himself with simply counting the number of tree stumps visible in the photographs taken by Ms. Leonard in April 2013, nearly a year after the clearance of vegetation and after substantial remodelling of the ground.
64. The only other response by Mr. Forbes-Laird to the Council's estimate was to say (at paragraphs 3.6.1 to 3.6.4 of his rebuttal):-

"no evidence had been provided to demonstrate the prior existence of the plenitude of young trees relied on by the Council as if it were fact."

before going on to rely upon the declaration by Mr. Logsdon. That response was flawed, first because it failed to recognise the Council's point that the burden or proof lay on the Claimant. Second, the reliance upon Mr. Logsdon's statement was flawed for the reasons given in paragraphs 26 and 31 above. I would add that the Claimant has not been able to overcome the obvious contradiction between Mr. Logsdon's statement to the effect that "the only woody species present in the area identified for vegetation clearance (being broadly the area of the TRN) were rhododendron and cherry laurel" (see paragraph 3.6.2 of Mr. Forbes-Laird's rebuttal and paragraph 3 of Mr. Logsdon's declaration) and the Claimant's acceptance that 21 protected trees had been removed. On any view, Mr. Logsdon's statement was materially incomplete.

65. Of course in some cases there may be better evidence for estimating the number of trees removed than standard planting densities. But it is clear from the Inspector's decision letter, and the material before him, that that was not the case here. Mr. Forbes-Laird simply relied upon the photographic evidence of tree stumps (see paragraph 24 above). The Inspector rejected that approach in paragraph 9 of his decision letter:-

"…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"

No ground of challenge has been brought against the rejection of the Claimant's evidence. It was a conclusion which the Inspector was plainly entitled to reach.

66. The Inspector then went on to say that the purpose of the notice was "to secure the reinstatement of the woodland in the area concerned." On the evidence received at the hearing he found it "difficult to see how that could be achieved other than through the use of standard planting densities" and so he found that the number of trees required by the notice was "not unreasonable". Paragraph 9 of the decision letter should be understood as reasons briefly stated and addressed to parties familiar with the evidence and arguments in the appeal (see paragraph 38 above). Accordingly, it is plain that the Inspector accepted the Council's evidence that planting densities had been used as a conservative estimate of the number of trees removed and requiring to be replaced. Read properly in context, his reference to "the reinstatement of woodland" does not indicate that he failed to address the issue of whether the notice required more trees to be planted than had been removed. That reference simply acknowledged the uncontroversial fact that the notice required the reinstatement of an estimated number of trees which had formed part of a woodland TPO.
67. For all these reasons I reject ground 1.

Ground 3

68. This ground falls into two parts. First, the Claimant submits that the Inspector failed to give adequate reasons for his decision because he failed to identify what the Claimant had removed. In the light of the analysis under grounds 1 and 2, this complaint is untenable. This was a case in which the Council said that it was impossible to state precisely the number of trees lost and the Claimant, upon whom the burden of proof lay, did not say otherwise. It was therefore necessary for the issue to be dealt with on the basis of estimates as to the number of trees lost. As I have explained, the Inspector rejected the Claimant's estimate founded on the 21 tree stumps and accepted the Council's estimate using planting densities. Given the material before the Inspector, and in particular the paucity of material from the Claimant, no further reasoning in the decision letter was required. There is no doubt, let alone a "substantial doubt" as to whether an issue of fact was left unresolved or any error of law made.
69. The second part of ground 3 alleges that there was no evidence before the Inspector upon which he could conclude that more than 27 trees had been removed. It is apparent from my review in paragraphs 23 to 31 above of the evidence before the hearing (see in particular paragraphs 29 to 30) and from the analysis under ground 1 above, that in a case where the subject matter had been destroyed and the Inspector was obliged to work from estimates, rather than actual numbers, of the trees lost, there was sufficient evidence to support the conclusions that more than 27 trees had been removed and that the Council's approach was reasonable.
70. For these reasons ground 3 must be rejected.

Conclusion

71. There is no merit in any of the grounds put forward by the Claimant and so the appeal is dismissed.