When is a tree a tree?

You may think it's obvious when a tree is a tree, but the Court of Appeal has ruled 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."

A developer had been served with a notice from the local planning authority ordering the re-planting of 1,280 trees on the basis that their removal contravened a Tree Preservation Order.

By way of defense, the developer argued that the notice was defective as they had not removed trees but only saplings, which were not protected under the relevant legislation.

The decision is significant, particularly for those developing land subject to the tree preservation regime.

If a TPO protects all trees within a designated area of ground, as opposed to individual trees or specified groups of trees, the restriction not to remove or destroy 'trees' from the stage of sprouting seedlings is pretty onerous.

While it would be unrealistic for any replanting to be based on precise numbers of trees within designated areas of ground, the Court of Appeal indicates estimates are to be used.

If a developer does not have any evidence (such as tree surveys) to support their own estimate or challenge that of the planning authority, however, they are unlikely to succeed in any challenge they would wish to make to an order requiring them to carry out replanting (as was the case in this appeal).

Indeed, unless tree removal is specifically authorised by a planning permission (which would override the terms of an existing TPO), it is difficult to imagine how any development might take place on that land without a breach of the TPO occurring.

While planning authorities may take a pragmatic approach and grant consent under the order for tree removal, this is still likely to add delay to the overall timetable for development.