Most people know a tree when they see one. Big, leaves, branches, roots etc, but a recent Court of Appeal decision answered the rather unusual legal question: When does a tree become a tree?
In Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government and another , the Court of Appeal decision confirmed a High Court judgment which stated that, once beyond a mere seed and “certainly once it was capable of being identified as of a species which normally takes the form of a tree”, a tree is defined as a “tree”. This definition therefore includes both saplings and seedlings.
Trees and their definition become relevant to property law where developers or land owners are dealing with areas of woodland, specifically those which are subject to a TPO (Tree Preservation Order) or TRN (Tree Replacement Notice).
In this particular case, a land owner cleared a section of woodland in contravention of a TPO and was then subject to a TRN to replant 1,280 saplings of varying woodland species. The owner claimed that the number of visible tree stumps from the cleared area only numbered 27 (of which 6 did not require replacing), meaning the TRN went far beyond the original number of trees to replace and was unduly onerous and costly.
The arboricultural expert for the local authority stated that due to the clear-felling approach taken to the land (clearing and burning much of the material), it was impossible to know exactly how many trees (within the full definition of the word), subject to the TPO, had been destroyed. The TRN represented a reasonable best estimate for the likely number of trees, saplings and seedlings formerly in the protected areas and, in all probability, likely fell someway short.
The judges’ decision, in dismissing the landowner’s appeal, was that the burden of proving how many trees were on the wooded site and subject to the TPO fell solely on the landowner. If sufficient evidence could not be adduced then the burden could not be discharged.
Landowners, purchasers and developers dealing with woodland or tree covered areas should undertake sufficient due diligence into whether the land is subject to TPOs and also consider whether a survey of the number of trees should be undertaken prior to clearance works in order to ensure that the density of the trees can be proven in the event subsequent enforcement action is taken.