Court of Appeal dismisses tree preservation policies challenge to housing estate redevelopment

The Court of Appeal has rejected an attempt to use tree preservation policies to halt the redevelopment of an estate, even though Lord Justice Stuart-Smith noted the London Borough of Lambeth’s policy was “not drafted as well or as clearly as it could have been”.

Andrew Plant, a resident of the Cressingham Gardens estate - which Lambeth proposes to demolish and redevelop - challenged its grant of planning permission on the ground that the council misinterpreted its local plan.

This was because it included the proposed felling of trees, and so was contrary to the relevant policy on its proper interpretation. He had already argued the point unsuccessfully in the High Court.

The policy, known as Q10, provides development will not be permitted that would result in the loss of trees of significant amenity, historic or ecological/habitat conservation value or give rise to a threat to the continued wellbeing of such trees.

It also says where trees are located within a development site, they must either be retained or where it is imperative to remove them, adequate replacement planting will be secured.

In Plant, R (On the Application Of) v London Borough Of Lambeth [2023] EWCA Civ 809 Stuart-Smith LJ said: “The issue in this appeal is whether, on the proper interpretation of Q10, the felling of the trees is contrary to [it] even if it is ‘imperative’ to remove them and suitable replacement planting…is secured.”

Mr Plant argued the policy meant an absolute requirement to preserve trees and Lambeth countered that the point about ‘imperative’ removal gave it an exception.

The High Court had identified that the consequence of Mr Plant's submissions would be that the policy always required retention of significant trees, whatever justification there might be for their removal or whatever benefits removal might bring.

Stuart-Smith LJ said: “Mr Plant's case is that the planning authority cannot within policy strike a balance between the importance of the scheme and the value of the tree proposed for removal in deciding whether removal is ‘imperative’ under Q10.”

He said: “Whichever is the correct interpretation, it must be acknowledged at the outset that Q10 is not drafted as well or as clearly as it could have been.”

The judge explained though that Lambeth's interpretation “does less violence to the wording of Q10” and provided a more natural interpretation.

A further consequence of Mr Plant's proposed interpretation would be that the obligation to secure replacement planting arose only if it was ‘imperative’ to remove the trees but not otherwise.

“There seems no obvious logic that would require replanting to be secured if it had been imperative to remove a tree but not if the tree was removed even though it was not imperative to do so,” Stuart-Smith LJ said.

Lord Justice Moylan and Sir Keith Lindblom agreed with the main judgment.

Mark Smulian