Case Study
What happens when you’ve got two differing definitions of veteran trees on a development site set by two different but important regulatory bodies? And what if the LPA disagrees with the way these two definitions should be interpreted? And if the trees in question were felled over four years ago, what then?
Our Arboricultural and Ecology teams were appointed to provide expertise in support of a planning application for a proposed housing development site in Hurst, Wokingham. The project later became the focus of appeal, following the application’s refusal on ecological grounds, specifically relating to the prior removal of two mature oak trees.
While our team’s involvement initially centred on standard survey and design input, this case evolved into a landmark test of how veteran trees should be interpreted under two overlapping frameworks: the National Planning Policy Framework (NPPF) and the new Biodiversity Net Gain (BNG) regulations.
The two oak trees in question had been removed by a former landowner in 2021, before our involvement in the project. However, under BNG regulations, any losses occurring before a planning application must still be accounted for, preventing “degradation fraud”, the deliberate clearance of habitats before assessment.
“Developers could clear their land and say that it’s not worth a lot, and then plant a few trees and say, Oh, we’ve got a really big biodiversity net gain.’ That’s degradation fraud. You can’t degrade the land prior to planning applications.”
Emily Major – Ecology Associate
This meant that we had to retrospectively assess whether the felled trees could have been classed as veteran. The assessment proved particularly challenging due to the fact that the trees no longer stood. Only stumps remained. We needed to carefully analyse the context of these trees, finding historical information about them and comparable trees on site.
“We had to look at the surrounding comparable trees and come to some form of judgment as to whether these felled trees were likely to be veteran or not.”
Jamie Pratt – Arboricultural Director
Adding to the complexity, the BNG and NPPF definitions of a veteran tree differ significantly. The BNG definition is broader, creating ambiguity for local planning authorities and consultants alike.
BNG regulation sets a much lower bar as to what a veteran tree should be. We had to assess the trees that had been removed under both definitions and come to a judgment as to what we felt they were likely to have been. We took a precautionary approach, surmising that these trees would indeed have been veteran trees. This made sure that their loss was compensated for on the site, which is what’s required under the BNG regs for the loss of a veteran tree.
“When you assess a tree for whether it’s veteran or not, you need to be looking at all the features, whether it’s dead wood, habitat, holes, cavities and more. Because the trees weren’t actually there, we had to think quite creatively as to how we come to some form of judgement on this.”
Jamie
The nuances between the NPPF and the BNG definition of a veteran tree have really been put to the test at this appeal. So far, there’s no precedent out there. The issue came about because the LPA views that if a tree is classified as a veteran under the BNG regulations, it’s a veteran tree under the NPPF definition by default. It’s an interpretation that we have contested, and forms a key part of our evidence at the appeal.
This question is very important because if the public enquiry agrees with the LPA’s view, it would mean that the client required exceptional circumstances for the loss of those trees. It’s unlikely to be the case for a housing development such as this one. Exceptional circumstances are usually reserved for things like national infrastructure projects.
“It’s muddied the waters. There are so many different definitions out there. We had some clarity with the NPPF definition; it was quite straightforward. Now the BNG definition has come out, which we feel lacked consultation. It’s not consistent with the planning policy framework, which is ultimately the framework in which decisions are made around planning.”
Jamie
The Hurst development needed collaboration on multiple levels. We needed to work closely with other teams working on the development, such as the landscape planning team, transport consultants, drainage engineers, as well as Wokingham LPA.
With a fully collaborative approach, we developed a strong and defensible planning submission, balancing BNG requirements with the practical realities of the development. We developed a compensation strategy involving:
One of the key criteria for a BNG veteran tree is that it is ‘of high value to nature’. From an arboricultural perspective, the team could ascertain information about the age and size of the trees, but the ecological input was key at this stage.
The ecology team were able to look at how the felled trees would have impacted the site’s BNG score if they were still a part of it. These key insights on the value the trees would have added to the site and local wildlife habitats are crucial to building a compensation strategy to meet BNG requirements.
Despite the council accepting the strategy, they maintained their refusal on ecological grounds, citing a lack of “wholly exceptional reasons” for impacting irreplaceable habitats under NPPF policy 193C.
“We weren’t aware that the trees had been removed until after the application was submitted. It was only after the submission went to consultation that residents got to comment on the application. A local resident had taken photos of the trees that had been removed, and that’s how we found out about it. That’s how this became an issue of appeal.”
Jamie
“We’re sort of sitting on the edge of our seats a bit as to a decision”
Jamie
Following the appeal, all evidence was presented at a public inquiry, which has now concluded. It’s no understatement to say that the industry as a whole awaits the Planning Inspectorate’s decision. Whatever the verdict, it could set an important precedent for how veteran trees are interpreted under BNG and planning policy.
Regardless of the outcome, this case highlights the importance of clarity and consistency between these evolving environmental regulations. Our position challenges the automatic equivalence of BNG veteran status with NPPF irreplaceable habitat designation. How that is judged as a result of this public enquiry, though, we’ll have to wait and see.
“If there are veteran trees on the site, they should be assessed under the BNG regulations definition and the NPPF definition. You’ve almost got two types, and that’s how it should be looked at. We can’t assume that if a veteran tree meets one regulation, it meets the other. That shouldn’t be how it works. It shouldn’t be a straightforward thing. It should have complexities because of its nature.”
Jamie
As BNG regulations continue to shape the development landscape, we want to stay at the forefront of industry discussion and share our approach. We also want to find what others have been doing and how they’ve been dealing with it. Because at the moment, it’s a grey area. Though we don’t have an answer, this example really tests the industry. The outcome eventually should give us all some clarity on how to approach issues like this in the future.
We’ll be updating you when the enquiry reaches a decision. In the meantime, if you want to keep up with everything else we’ve been up to, including a couple of other landmark case studies we’ve been involved with, have a nosy here.