Mon, 11 Jan 2016
Neonicitinoids are a group of active ingredients in plant protection products (pesticides). Their use is limited by a Regulation made by the European Commission. There is active debate about their effect on bees.
During the summer, the National Farmer’s Union applied to DEFRA for emergency authorisation to use two different pesticides which contained neonicitinoids. The first pair of applications was refused. The second was granted. Friends of the Earth challenged the authorisations by judicial review.
Patterson J gave a detailed and careful judgment on the renewed application for permission. The judgment is an interesting illustration of ministerial decision making on the basis of specialist and expert advice in the environmental field. A copy of the judgment can be found at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2015/3283.html&query=friends+and+of+and+the+and+earth&method=boolean
In Distinctive Properties v Secretary of State for Communities and Local Government  EWCA 1250, the Appellant was aggrieved by this passage in a decision letter on an appeal against a Tree Replacement Notice:
“In that context, the appellant is wrong to concentrate on the stumps identified because that fails to have regard to any saplings or other potential trees that might well have been removed as part of the clearance works too. The purpose of the TRN is to secure the reinstatement of woodland in the area concerned. It is difficult to see how that could be achieved other than through the use of standard planting densities and in that context, the number of trees set out in the TRN is not unreasonable. The appeal on ground (aa) fails, therefore.”
The issue in the appeal was whether the Appellant, having cleared an area subject to a woodland TPO, was lawfully required to replace the 27 identifiable trees (from the stumps) or to comply with the requirement to replant at a standard density, being 1280 trees.
This raises the further issue of ‘what is a tree?’ The case for the appellant was that the term “tree” includes saplings, but not shrubs, bushes or scrub, and not seedlings. The Secretary of State emphasised that a woodland TPO is seeking to capture the natural turnover in trees. Consequently a scheme of protection which disregarded a part of the woodland would ultimately fail in its protective purpose. One could not include a mere seed but it is right to include all stages of a tree’s life within the statutory term “tree”.
The case was decided on the basis that it was for the Appellant to show that the Tree Replacement Notice was wrong. The Appellant had no evidence to the contrary, having destroyed it. So far as it was necessary to say whether a seedling was a tree, the court considered that it was.
Richard Kimblin appeared for the Secretary of State for Environment Food and Rural Affairs and the Secretary of State for Communities and Local Government, respectively.
This article was written by No5 Barrister Richard Kimblin, to view Richard's profile, click here