Case Study

Construction within Ancient Woodland

Author: David Archer
Ancient woodland

The problem:

Our clients had commenced a new driveway to their house without planning permission, over part of their property which was designated as Ancient Woodland. Part of the land was also covered by a Tree Preservation Order.

They had been visited by the Council enforcement officer just before Christmas 2014, and were issued with an enforcement notice and cautioned for allegedly breaching the TPO.

Soon afterwards, a new TPO was also served, covering the entire remaining area of the garden. In January 2015, we met with our clients, their legal representative and their planning consultant to devise a way forward.

How did we help?

Our first priority was to object to the new TPO on the basis that it was a Woodland order, but covered all the garden area around the house including the lawn. Under a Woodland TPO even natural regeneration of tree seedlings is protected, and so if left unchallenged, our clients could have been left in the untenable position of requiring permission to cut their lawn!

We researched the background to the situation. Our clients had submitted a TPO application to remove several trees, and this had been approved before they had started any work on the site. We found that no additional trees had been removed in order to construct the driveway, albeit that the construction methods used were not ideal, and the driveway passed close to two mature Scots pine.

Our clients’ error was that following their successful TPO works application, they had assumed that the driveway could be constructed without planning permission under permitted development rights.

On the planning consultant’s advice, a retrospective application was submitted, for which we prepared arboricultural reports in support. Decay detection tests on the two mature Scots pines revealed they had extensive internal decay, and we argued that they should therefore not be a constraint to the driveway. We specified the best method of completing the construction with minimal impact on the retained trees, and produced a Method Statement and Tree Protection Plan to prove this could be achieved.

Summary of what we delivered:

  1. A robust objection to the new TPO
  2. Clear evidence that no trees had been removed other than those already approved
  3. BS 5837: 2012 survey, arboricultural impact assessment, method statement and tree protection plan to support the retrospective planning application
  4. Mitigation landscape scheme
  5. Mitigation woodland management plan

The crux of the matter:

Despite our efforts, the Council sought to maintain its objection to the driveway on the basis that the affected area was designated on the Ancient Woodland Inventory, and that the construction would therefore result in the loss or deterioration of ancient woodland.

We challenged this on four counts:

  1. Researching the area’s history showed that its inclusion as ASNW within the Provisional Inventory of Ancient Woodland was dubious. The definition of ancient woodland is land that has been ‘continuously wooded’ since 1600. Historical accounts of the massive works involved in the enlargement of Virginia Water in 1788-90 and the construction of the A30, both immediately adjoining the site, showed that little or no woodland would have been present at the time.
  2. The vegetation composition did not support ASNW status. The only trees present were mostly Silver birch and Scots pine, with a dense understorey of non-native and invasive Rhododendron. The consistency of ages of the tree species (classic pioneer invaders of disturbed acid soils) with the likely date of the Rhododendron invasion, was strong evidence of secondary colonization of previously cleared land.
  3. There was no evidence that any significant regeneration of any typical native ancient woodland flora would occur under the area occupied by the driveway if it was removed. Recolonization by native flora of an area cleared of Rhododendron is typically inhibited by the soil having been rendered inhospitable and its effects on the seedbank. Re-establishment of any diverse woodland flora would not therefore simply result from removal of the driveway, or of the Rhododendron elsewhere. It would require a concerted programme of careful management over a considerable period of time, and the woodland management plan offered the means to achieve this. In the absence of management, recolonization of the Rhododendron over the entire area would be the inevitable consequence.
  4. Recent appeal cases were cited where development has been permitted on ancient woodland sites, on the accepted principle that “… in order to properly balance the harm against the benefits, the characteristics of the ancient woodland in question must be assessed.” This was a key argument - the area affected by the proposed driveway was dominated by over-mature Birch and dense Rhododendron, with no characteristic ancient woodland flora, and was of very low quality and value in both arboricultural and ecological terms.

Outcomes for the client:

  1. The new TPO was modified to exclude areas surrounding the house and the lawn.
  2. The Council dropped its intended prosecution for alleged breach of the TPO, admitting it had no evidence.
  3. The retrospective planning application was approved, with the mitigation provided by the landscaping scheme and woodland management plan.
  4. Our clients were delighted with the successful outcome and are enjoying the new planting which provides an attractive setting for the driveway and their property. Better quality trees have been planted than those removed, and there is now a better age class diversity within the woodland, which bodes well for its long term management.

At all times we felt we were in safe hands and given clear and concise advice and updates throughout. Mark’s in depth knowledge of ancient woodland  issues and planning case law enabled us to have a successful outcome to our case.

– Melanie & Paul Caudell