Tree preservation is an important objective of planning policy and is becoming all the more so in an era of increasing environmental awareness. In a High Court case on point, concerns for the survival of a veteran mulberry tree derailed proposals to convert a listed former hospital into flats.
The Victorian hospital, built in the 1850s, was an important feature in a conservation area and was granted Grade II-listed status following its closure some years ago. A developer wished to develop 291 homes on the site – 50 of them in the hospital building itself – 35 per cent of which would be affordable.
The project would involve demolition of the hospital’s south wing, the main roof and all rear extensions. Crucially, it would also require relocation of a veteran black mulberry tree to another part of the site. The tree had historical associations and had survived bomb damage during the Blitz.
By a thin majority of four votes to three, the local authority’s strategic development committee approved the scheme. Planning officers had advised that the less than substantial harm to the heritage building and its setting would be outweighed by the public benefits of the proposal. Formal planning permission was subsequently granted by the full council.
Overturning the permission at the behest of an individual campaigner, the Court found that it involved a misinterpretation of Paragraph 175c of the National Planning Policy Framework. That paragraph states that, in the absence of wholly exceptional circumstances and suitable compensation strategies, proposals that would involve the loss or deterioration of ancient or veteran trees should be refused.
The Court acknowledged that Paragraph 175c was not directly applicable to the relocation – rather than the loss or deterioration – of a veteran tree. It was, however, relevant to the mulberry tree if there was a risk that its relocation might result in such loss or deterioration. Planning officers had accepted that there was a degree of risk that the tree would be harmed or killed by the move.
There was, the Court ruled, a failure to advise councillors that the requirements of Paragraph 175c – that there must be wholly exceptional circumstances AND suitable compensation strategies – were cumulative and had to be considered separately. That error of law had resulted in a material consideration being ignored. Given the narrow vote in favour of the scheme, the Court was not satisfied that, absent the legal error, it was highly likely that the outcome would have been the same.