www.planningportal.gov.uk/planninginspectorate

Appeal Decision Hearing held on 3 June 2014

Site visit made on 3 June 2014

by Paul Griffiths BSc(Hons) BArch IHBC

an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 15 August 2014

Appeal Ref: APP/TRN/T0355/3780

Blacknest Park, Whitmore Lane, Sunningdale, Ascot

The appeal is made under regulation 18 of the Town and Country Planning (Tree

Preservation) (England) Regulations 2012 against a tree replacement notice (TRN).

The appeal is made by Distinctive Properties (Ascot) Ltd against the issuing of the

notice by Council of the Royal Borough of Windsor and Maidenhead.

The Council's reference is B05/CS/OF/02/13.

The notice was issued on 15 January 2014.

The requirements of the notice are:

Within the area shown edged red, plant trees at a uniform 2.5m x 2.5m spacing, which

provides for 1,280 trees in total. The species to be made up as follows: 40% Common

alder (Alnus glutinosa), 25% White willow (Salix alba), 25% Crack willow (salix

Fragilis), 5% English oak (Quercus robur) and 5% Common beech (Fagus sylvatica).

Major species (Alder, Willow) should be planted in groups of 20 and minor species in

groups of 7 (Oak, Beech). The trees to be planted in single species groups to allow for

some natural mortality during establishment (less than 15%) and to enhance the

probability of any species surviving until the woodland matures and natural successional

changes come about. The English oak and Common beech shall be planted running

adjacent to the north western boundary on the slightly higher ground which affords

drier conditions.

The trees must be 60-90cm in height. They shall be bare root, or container grown. All

trees must be nursery grown, of English provenance and planting shall be carried out in

accordance with the Code of practice for General Landscape Operations BS 4428 1989

and other industry standards applicable at the time. They must be maintained to ensure

establishment (up to 15% natural mortality allowed).

Each tree must be protected with an appropriate sized tree shelter, minimum 75cm tall,

until establishment.

Planting to be carried out within a planting season which is regarded as November through to March inclusive.

The period of compliance within the notice is 10 months.

The appeal is proceeding on grounds set out in section 208(1) (a), (aa), and (b) of the

Town and Country Planning Act 1990.

The relevant Tree Preservation Order (TPO) is Tree Preservation Order 36 of 2004,

which was confirmed on 24 June 2004.

Decision

1. The appeal is allowed on ground (b) insofar as it relates to the period for compliance, and the Tree Replacement Notice is varied as follows: After the

heading Time for Compliance in Section 4 of the Notice, delete the words Within 10 months from the date this notice takes effect and substitute therefor the words Within 24 months of the date this notice takes effect.

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2. Subject to this variation the Tree Replacement Notice (TRN) is upheld.

Application for Costs

3. At the Hearing an application for costs was made by the appellant against the

Council. This application is the subject of a separate Decision.

Reasons

4. The original Tree Preservation Order (TPO) covering the site is TPO 1 of 1957.

According to the Council, TPO 36 of 2004 was made in response to development pressures to deter the removal of part of this woodland.

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 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 has 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 operations 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.

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.

10. While the TRN is reasonable in principle, therefore, there is a complication.

Clearance works took place in April/May 2012 but from October 2012 (that is prior to the 2012/13 planting season), the appellant instigated discussions with

the Council about the potential for development of the area at issue.

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11. An application for planning permission for a dwelling and ancillary works was

made in February 2013. Planning permission was refused by the Council in June 2013 and an appeal was lodged in October 20131. While they had been

aware of the clearance works for some time, the Council served the TRN on 15 January 2014, when this appeal process was already well in train. If that appeal under Section 78 of the Act is allowed and planning permission is

granted for the dwelling and ancillary works, then the provisions of the TRN and indeed, the TPOs, would be rendered otiose.

12. The Inquiry that is dealing with the parallel appeal under Section 78 is programmed to resume in October 2014. While it is reasonable to expect the Inquiry to be completed in the allotted time, the decision will take some time

afterwards to produce and there is the potential for subsequent challenge to be catered for. In that context, the period of 10 months for compliance, set out in

the TRN, seems unreasonably short. It is very possible that the Section 78 appeal will not have run its course by the time 10 months has elapsed and it would be perverse to require the appellant to replant trees as a consequence of

the TRN, when there is still the potential for the requirements of that TRN to be overridden by the appeal under Section 78.

13. On that basis, it seems to me reasonable to extend the period for compliance to 24 months. This I can do without prejudice to any party and the appeal on ground (b) succeeds to that limited extent. I conclude, therefore, having

considered all other matters raised, that the TRN should be upheld, with that variation.

Paul Griffiths

INSPECTOR

1 APP/T0355/A/13/2206888

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APPEARANCES

FOR THE APPELLANT:

Julian Forbes-Laird Dip.Arb (RFS) M.Arbor.A

Director and Principal Consultant, Forbes-Laird Arboricultural Consultancy

FOR THE LOCAL PLANNING AUTHORITY:

Helen Leonard MICFor F.Arbor.A Dip.Arb (RFS)

Arboricultural Co-ordinator, RBW&M

Nick Clark

INTERESTED PERSONS:

Dr Andrea Berardi Local Landowner

Councillor David Hilton Local Ward Member Diana Tombs Local Resident Christine Gadd Local Resident

Andrew Colebrook Member of the Public Matthew Lucas Member of the Public

Douglas Bond Woolf Bond Patrick Stileman Dip.Arb (RFS) M.Arbor.A

Forbes-Laird Arboricultural Consultancy

DOCUMENTS

1 Statutory Declaration of Chris Logsdon 2 RBW&M response to the appellants costs application 3 Extracts from the Town and Country Planning Act 1990