Palm Developments Ltd v Secretary of State for Communities and Local Government [2009] EWHC 220 (Admin)

The point in plain English: A Tree Preservation Order (TPO) protecting woodland is not restricted to large or mature trees. Saplings can be trees for the purposes of the statutory protection, and the order covers trees which establish after the order was made. That conclusion matters when owners seek to clear young growth from protected woodland.

Palm Developments Ltd v Secretary of State for Communities and Local Government was decided by Cranston J in the High Court, Administrative Court, on 13 February 2009. The neutral citation is [2009] EWHC 220 (Admin); the reported citation includes [2009] 2 P & CR 16. The case concerned a former industrial wharf and woodland at North Halling in Kent, within Medway Council’s area.

What happened at North Halling?

Palm Developments acquired the disused wharf site in 2001 and sought to investigate possible commercial use. The former cement works had become colonised by natural regeneration including birch, willow, sycamore and ash. Medway Council made a woodland tree preservation order in 2005, covering the relevant part of the site.

The company subsequently sought consent for a series of clearance operations to facilitate surveys and access, including removing scrub, shrubs and saplings below specified diameters. The council refused the applications. Following an inquiry, the Secretary of State dismissed appeals against the refusals. The company challenged that decision under section 288 of the Town and Country Planning Act 1990 and challenged an associated costs decision by judicial review.

What did the High Court decide?

The claimant argued that small saplings fell outside the meaning of a tree protected by a TPO. Cranston J rejected a diameter threshold and held that a small tree is still a tree. The judge distinguished a tree, however young, from a shrub, bush or other scrub which is not a tree. Accordingly a woodland TPO protects saplings of tree species and trees which subsequently grow in that woodland.

The Court’s analysis drew on section 198 of the Town and Country Planning Act 1990. Comparable legislation expressly imposed size limits where Parliament intended them, whereas the statutory TPO provisions did not. The judge also rejected the contention that the Inspector had misunderstood the woodland order or failed to consider the practical impact of the clearance proposals.

The challenge to the appeal decision did not succeed. The case should not be read as saying every item of undergrowth is automatically a tree, or that every proposed woodland-management operation must be rejected. It identifies the statutory scope of protection. Applications for actual works still require assessment of amenity, need and impact.

Later treatment and practical importance

The Court of Appeal expressly considered Palm Developments in Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government [2015] EWCA Civ 1250. That later case addressed woodland replacement notices, the number of replacement trees and whether seedlings could be included. It confirmed that the absence of a minimum size threshold is important, while explaining the separate statutory limitation on the number that a replacement notice can require.

The practical lesson for a landowner or adviser is to check the woodland TPO, the actual trees and regeneration present, and the extent of proposed clearance before assuming that small growth can simply be removed. Consent issues under the TPO and the planning merits of any associated development are separate questions.

Full judgment for Gold members

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