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Judgement gives new slant on tree definition

 

     A High Court ruling has provided a new legal definition of what constitutes a tree and what this means for tree preservation orders (TPOs).
     The definition has been highlighted in a nearly 12,000-word long judgement from Mr Justice Cranston. This follows a legal challenge by a company which wanted to build a wharf on land formerly used for a lime and cement works in Kent. Medway Council refused the application and decided to safeguard the land by making a TPO.
     Subsequently the company, Palm Developments, applied to undertake some surveying work at the site. This involved the removal of scrub, shrubs and saplings which it contended were not trees and therefore not covered by the order.
     The council disagreed and the developer was unsuccessful after a recovered appeal. Palm Developments went to the High Court but failed again.
     The judge said the Secretary of State was entitled to take the same approach as the planning inspector who argued that the TPO covered saplings and trees at all stages of their development. The Judge said: "There is no definition of a tree. I conclude that with TPOs there are no limitations in terms of size for what is to be treated as a tree. In other words, saplings are trees."
     He added: "Moreover, a TPO for woodland extends to all trees in the woodland, even if not in existence at the time the order is made."
     In his ruling the Judge noted that Lord Denning, the former Master of the Rolls, had held that size mattered, that many saplings were not trees and that "in woodland a tree was something over seven or eight inches, 180 to 200mm, in diameter."
     Although s198 of the Town and Country Planning Act 1990 provided for TPOs to preserve trees, groups of trees and woodlands, Mr. Justice Cranston complained there was "no statutory definition of a tree".
     He concluded that "with tree preservation orders there are no limitations in terms of size for what is to be treated as a tree".

Roger Milne, 19 February 2009, Planning Portal

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