The Court of Appeal has allowed an appeal over tree felling at Claremount Demesne in Co Offaly, setting aside the High Court’s refusal of relief under section 160 of the Planning and Development Act 2000. It proposed orders restraining further unauthorised vegetation removal, requiring restoration and declaring that the works required environmental impact assessment (EIA).
The judgment, delivered by Humphreys J on 21 January 2022, found that the respondents had not established that the felling was exempted development. The court said the burden of proving an exemption lay with the party relying on it, including where an exception could displace an otherwise applicable exemption. It also found that the respondents had not adequately established the purpose of the felling or rebutted evidence about its scale.
The felling began in March 2018. The court noted that the works took place before a forestry licence was granted, and that the later licence permitted limited thinning rather than the wide-scale removal described in the evidence. A Roads Act notice issued by Offaly County Council in April 2018 covered one folio and required a survey and removal of identified dangerous trees; the court said it did not justify the wider works.
The court concluded that the evidence did not establish that the land would be replanted as claimed. It said that creating access through the wooded area for future felling could amount to a new land use, and that timber harvesting differed from use as an uncultivated heritage garden. The woodland setting was identified in the protected-structure record, and the court found that removing a substantial part of it materially affected a feature contributing to the structure’s character.
The proposed order would require the respondents, jointly and severally, to restore the land to its condition before the first felling in March 2018, including replacing specified numbers of ash, beech, oak, sycamore and hawthorn trees and other removed vegetation. It would also require detailed remediation plans within six weeks and completion of restoration within four months of perfection of the order. The court proposed a declaration that works carried out in or after March 2018 were unauthorised development and required prior EIA.
The judgment describes these as proposed orders. It also provisionally proposed that the appellant receive costs in the High Court and Court of Appeal, subject to any contrary submissions within 14 days.