In a ruling which helps to define the concept of ‘public open space’, the High Court has rejected a challenge to a tree preservation order (TPO) brought by the owners of a landed estate who objected to local authority interference in their ambitious forestry management plans.
Lord and Lady Ballyedmond, who own the Corby Castle estate in Cumbria through an estate company, proposed to fell large numbers of trees in Corby Beck Wood and to regenerate and re-plant the area with thousands of native, broad leaf, specimens. However, those plans were effectively blocked by a TPO issued by Carlisle City Council in November 2010.
In challenging the TPO, the owners contended that the woodland was not ‘public open space’ for the purposes of Section 9 of the Forestry Act 1967 and that the council had exceeded its powers. It was submitted that it was for the Forestry Commission to decide whether or not to license the tree felling and re-planting operation and that the council had no jurisdiction to intervene.
Dismissing the challenge, however, the court rejected the owners’ plea that rights of free access to the woodland that had been conferred on neighbourhood residents by a scheme created in 1915 by the council under the Commons Act 1899 had been extinguished or lapsed by reason of their non-registration under the Commons Registration Act 1965.
The court ruled that the council was correct to decide that the woodland was public open space because it was common land and the public had rights of access to it and that, therefore, any woodland management of the land fell outside the jurisdiction of the Forestry Commission.
The council had properly considered whether the TPO was expedient in the interests of public amenity and the court also rejected the owners’ plea that the local authority had acted with procedural unfairness by not affording them the opportunity to fully address their objections in oral submissions to the council’s development control committee.