Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government and Royal Borough of Windsor and Maidenhead [2015] EWCA Civ 1250

The point in plain English: A tree replacement notice for protected woodland cannot lawfully demand more trees than were removed or destroyed. However, a reasonable estimate of trees lost can be used when accurate counting is impossible after clearance, and the landowner challenging the replacement number bears the burden of showing the notice is excessive.

The Court of Appeal decided Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government on 8 December 2015. Sir David Keene delivered the judgment with Gloster LJ and Jackson LJ agreeing. The citation is [2015] EWCA Civ 1250, also reported at [2016] 1 WLR 1839. The case concerns sections 198 and 206 to 208 of the Town and Country Planning Act 1990.

Why the tree replacement notice was issued

The company owned Blacknest Park near Virginia Water in Berkshire. The land was already subject to a woodland Tree Preservation Order (TPO) when purchased. Contractors removed protected woodland over approximately 0.8 hectares in April and May 2012. The Royal Borough of Windsor and Maidenhead served a tree replacement notice in 2014 requiring 1,280 new trees at a specified spacing and with specified species.

The owner appealed to the Secretary of State, contending that only a much smaller number of identifiable stumps established the number of trees destroyed. An Inspector upheld the notice, subject to a limited variation. Holgate J dismissed the owner’s subsequent statutory appeal in the High Court in March 2015. The matter then reached the Court of Appeal.

One-for-one replacement, not unlimited restoration

The Court considered the relationship between section 206, which imposes the replacement duty, and section 207, which provides the enforcement notice mechanism. The parties accepted that the required number of replacement trees could not exceed the number removed or destroyed. A woodland TPO protects woodland amenity but does not turn a replacement notice into an unrestricted obligation to recreate every component of the former habitat.

The practical difficulty is proving how many trees were present when woodland was comprehensively cleared. The Court held that the inspector was entitled to accept an estimate based on standard planting densities and the evidence from the council’s arboricultural witness. The evidence need not reconstruct a precise inventory of individual trunks and stumps. A landowner who contends that a notice requires too many replacements must supply persuasive evidence in support.

Saplings and seedlings count as trees

The Court examined what counts as a tree under the legislation. It approved the central approach in Palm Developments Ltd v Secretary of State for Communities and Local Government [2009] EWHC 220 (Admin), which rejected a minimum-size threshold for protected saplings. The discussion included the status of identifiable seedlings of tree species, as distinct from a bare seed or other vegetation.

The Court emphasised that an Inspector’s decision should be read fairly and in its planning context, not with the intense scrutiny given to a statute or a contract. The Inspector’s reference to reinstating woodland did not mean he had adopted the wrong statutory test. The Court of Appeal dismissed the appeal and left the replacement notice in force as varied.

Why the decision matters for planning and enforcement

The practical implications reach beyond individual woodland sites. Where protected trees are removed, landowners should preserve surveys, photographs and other records before works begin. For local planning authorities, a replacement scheme must be based on a defensible estimate of the trees lost, rather than on a wholly independent aspiration for new woodland. The statutory rights of appeal and the burden of evidence also matter.

The case was cited by Inspector Grahame J Kean in the 11 November 2026 Harrison Springs tree-replacement appeal in Sheffield. In that case, the Inspector considered why a notice requiring 1,374 replacement trees could be assessed against the scale and nature of lost protected woodland, rather than only the number of large stumps visible after clearance. That application of the principle depended on the specific evidential record and on the statutory grounds actually raised.

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