June 7th, 2024 by James Goudie KC

In R ( WELLINGBOROUGH WALKS ACTION GROUP ) v NORTH NORTHAMPTONSHIRE COUNCIL ( 2024 ) EWHC 1225 ( Admin ) the Claimant challenged the Council’s failure to prevent a developer from felling protected trees. The Claimant sought to quash the Council’s decision that the felling was “ necessary to implement a planning permission “, and therefore within the exception in the Town and Country Planning ( Tree Preservation ) ( England ) Regulations at Regulation 14 ( a ) ( vii ) to the general rule, in Regulation 12, that consent would be required to cut down a protected tree. The Court held that the developer who had held the protected trees in preparation for the construction of an access road to a major development could not rely on the exception. Regulation 14 ( a ) ( vii ) provided an exception only where the felling was necessary for the development. The developer had not complied with a planning condition requiring it, before the access road was begun, to submit a plan identifying all existing trees and what measures would be employed to protect those that would be retained. The wording of the exception connoted nothing more nor less than the concept of it being necessary , as an immediate requirement, to undertake work to protected trees to make it possible to carry out development for which planning permission had been granted or was deemed to be granted.

The overall statutory scheme was one where Tree Preservation Orders are complementary to planning control. A key task when considering how the exception applies is to understand what was permitted by the planning permission. To the extent that what was permitted necessarily involved the loss of trees the exception will apply. To the extent that the planning permission could be carried out in a way that did not necessitate the loss of trees the exception is not available it is a key step in the analysis properly to construe the permission.

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