England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Sullivan)

		Royal Courts of Justice Strand London, WC2 Thursday, 7 November 2002

LORD JUSTICE SCOTT BAKER:

1. This appeal proceeds, on the basis of permission granted by Mance LJ, on some but not all of the grounds originally advanced.
2. The appellant is the owner of Marton Hall, Bridlington in the East Riding of Yorkshire. The respondent is the local council and planning authority. Marton Hall is a Grade II listed building. In the 33 or so acres of land that surround it are many trees, including sycamore and other species. A tree preservation order was made in 1988 covering some of the trees but for some reason, possibly an oversight, it was never confirmed by the council and it lapsed. In early 2000 the appellant applied for planning consent to change the use of part of his land to use for touring caravans. There were in fact two applications made in February and July of that year but essentially they were directed to the same objective. Such a use would involve removing some of the trees. The respondent council refused permission and the appellant appealed.
3. It is necessary to refer at this stage to a letter written on 23 May 2000 which was an internal letter within the council and related to the outstanding planning application. The author of the letter, who was writing on behalf of the Planning Officer (Trees and Landscape) to the Development Control Department, said this:

"The site is subject to a Tree Preservation Order. Much more detail is required to assess the impact of the proposal on mature trees on it adjacent to the site. A full and detailed tree survey is required showing the species, position, size and canopy spread of all trees and indicating those which will require removal.

I object to the proposals in their present form."

This letter was referred to by Mance LJ in granting permission to appeal and, as is apparent, it refers to the need for "A full and detailed tree survey". That is a point which has been picked up and developed by Mr Robinson in the course of this appeal. It seems to me, however, that it is necessary to appreciate the context in which this letter was written. It was written in the context of the planning application and the impact that that application would have on the trees in the area. It was Mr Robinson who it was suggested should produce the survey to show what the impact of the proposal would be on the trees in the locality. The letter is directed to the planning appeal rather than the tree preservation order. It is not saying what is required before a tree preservation order can be made.

4. Having been refused permission to change the use of the site, the appellant appealed. It was at that point that officers of the council realised that the 1988 tree preservation order had never been confirmed. In consequence, on 9 November 2000 Mr Kennedy, a planning officer with special responsibility for trees and landscape, carried out what has been described during the course of this case as a "survey". It appears that this exercise was carried out with some degree of urgency. Be that as it may, there is a dispute between Mr Robinson and the council as to the length of the survey, its thoroughness and its accuracy. Mr Kennedy had this to say in his evidence:

"Whilst on the site visit, I made reference to the plan which was attached to the unconfirmed 1988 tree preservation order. I noted that the outline of the woodlands on that plan had not changed significantly since then. In my view, the boundaries remained accurate."

5. On 17 November 2000 a provisional tree preservation order was made. The order was in conventional form. Attached to it were two plans which have been described as "plan A" and "plan B". In the schedule to the order the trees were specified. The judge described them as follows:

"No trees are specified individually. Trees are specified by reference to an area, which is said to be within a dotted black line on the map. The map reference is given as A1. The description says that the area contains sycamore, horse chestnut, ash, elm and Deodar cedar. The situation of the area is described. Under 'Groups of trees', defined by a broken line on the map, none are referred to, and under the heading 'Woodlands', defined by a continuous black line on the map, four woodland areas are identified and the woodland mix within them described.

There are two plans attached to the Order and forming part of it. The first identifies the area of trees and the second the four woodland areas. The latter are indeed defined by a continuous black line. The former, however, is defined, not by a dotted black line, but by what is perhaps best described as a pecked black line."

The reasons for making the order included this:

"The trees that are the subject of this Order contribute to the character and appearance of the area. The trees are worthy of preservation for their significant contribution to the landscape and for their potential contribution in the future.

The Council is concerned to ensure that the trees are retained in order to maintain their contribution to the locality and in the interest of public amenity."

6. By a letter of 12 December 2000 the appellant objected to the tree preservation order. He complained, first, that it was excessive and oppressive; secondly, that it was unnecessary; thirdly, that the officer, Mr Kennedy, did not make a proper inspection or list the trees; and fourthly, that the council's action in implementing the order was not impartial.
7. On 9 April 2001 the Director of Law, Administration, Planning and Property presented a report to the relevant sub-committee of the council, recommending confirmation of the order. This the sub-committee did, and it is the council's decision to confirm the order that is the subject of the present challenge.
8. The report to the sub-committee explained the background of the previous unconfirmed tree preservation order and the refusal of planning permission for a change of use, and that a public inquiry was planned to take place on 16 and 17 May to hear the appellant's appeal against the refusal of planning permission. It described where the trees were situated, saying:

"These trees are highly visible components of the local scenery, contributing to the amenity and character of the immediate area.

The Council is concerned to ensure that the trees are retained in order to maintain the character of the area and in the general interest of public amenity.

An amenity assessment was made by the Tree Officer who confirmed the trees met the Council's criteria for protection, therefore an Emergency Order was made on 17 November 2000."

9. The report attached a copy of the appellant's objections and summarised them as: (1) the order was unnecessary, excessive and oppressive; (2) the officer did not make a proper inspection or list the trees before instigating it; and (3) the council's action in implementing the order was not impartial. The sub-committee was also given the officers' response which was: (1) that the amenity assessment was undertaken by the tree officer who considered the order reasonable, with the trees meeting the council's criteria for protection; (2) the officer undertook a proper inspection and made the order in line with the recommendations in the government guidelines for Tree Preservation Orders: a Guide to the Law and Good Practice, March 2000; and (3) the officers' advice that the trees warranted protection was impartial. As I have said, the council confirmed the order.
10. The Secretary of State called in the planning application for his own determination. An inquiry was held on 16-17 May 2001 but there was a delay in the decision because the Secretary of State sought further information from English Heritage in relation to the setting of the listed building. The decision letter saying that the appeal had failed was eventually forthcoming but not until 20 February 2002.
11. On 27 May 2001, the appellant applied to the High Court under section 288 of the Town and Country Planning Act 1990 to overturn the tree preservation order. His grounds were: (1) the council failed to carry out a tree survey; (2) the council used an incorrect, outdated map, relying on the map and survey for the 1988 tree preservation order; (3) it failed to consider his objections and failed to consult him about the order; and (4) the council had made the tree preservation order in bad faith to justify its decisions in the planning application.
12. The council applied to strike out the appellant's section 288 application. The matter came before Forbes J on 20 September 2001 but he dismissed the application.
13. On 16 June 2002 the substantive section 288 application was heard by Sullivan J, and he also heard an application for permission to apply for judicial review in respect of the Town and Country Planning (Trees) Regulations 1999.
14. The permission to appeal granted by Mance LJ relates only to the section 288 application and covers the following grounds:

(1) The judge's refusal to allow the appellant to cross-examine as to the nature of the survey that led to the tree preservation order and the complaint that the survey was inadequate.

(2) The complaint that the map was inadequate. This really related to the underlying challenge that there had not been a genuine reconsideration of the merits of making a tree preservation order. What is said is that the council are really relying on the unconfirmed 2000 order.

(3) The complaint that the officers' conduct was such that they had really only gone through the motions.

15. I turn therefore to the law. In the first place it is important to keep in mind that the court was dealing with an application under section 288 of the Town and Country Planning Act 1990. That provision, so far as is material, reads as follows:

"(1) If any person—

(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds—

(i) that the order is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that order;

 . . .   . . . 

he may make an application to the High Court under this section."

The court has only limited powers on a section 288 application. It is in reality limited to considering the validity of the tree preservation order.

16. I turn next to section 198 of the Town and Country Planning Act 1990. This provides:

"(1) If it appears to a local planning authority that it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area, they may for that purpose make an order with respect to such trees, groups of trees or woodlands as may be specified in the order."

That order is described as a "tree preservation order". Subsection (3) provides:

"(3) A tree preservation order may, in particular, make provision—

(a) for prohibiting (subject to any exemptions for which provision may be made by the order) the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees except with the consent of the local planning authority, and for enabling that authority to give their consent subject to conditions".

It is unnecessary to recite any of the further provisions of section 198.

17. By section 199(1) the tree preservation order does not have effect until it is confirmed by the local planning authority. Furthermore, regulations may make provision for the procedure to be followed for making tree preservation orders. Those regulations are to be found in the form of the Town and Country Planning (Trees) Regulations 1999.
18. Regulation 2 provides for the form of a tree preservation order. It reads as follows:

"(1) An order shall be in the form set out in the Schedule to these Regulations, or in a form substantially to the same effect and -

(a) shall specify the trees, groups of trees or woodlands to which it relates;

(b) where the order relates to a group of trees, shall specify the number of trees in the group; and

(c) shall indicate the position of the trees, groups of trees or woodlands, as the case may be, by reference to a map.

(2) An order shall contain or have annexed to it the map referred to in paragraph (1)(c); and where a map is annexed to an order it shall be treated as part of the order."

Rule 3 provides for the procedure after making an order and it is unnecessary for me to describe the details. Rule 4 provides for objections and representations; and rule 5 for the procedure for confirmation of a tree preservation order.

19. As the learned judge pointed out, there is no statutory requirement to carry out a survey. But he proceeded on the basis that it would not be possible to form a view about whether an order was expedient in the interests of amenity and as to which, if any, trees should be included in an order without carrying out some form of survey. In this regard it is helpful bear in mind the guidance that has been provided. This is in the form of Tree Preservation Orders: A Guide to the Law and Good Practice, promulgated by the Department of Environment Transport and the Regions. It should, I think, be kept in mind that this is precisely what it says and is guidance, not something that must be slavishly followed as if it were a statutory requirement. But the guidance is nevertheless of some importance.
20. The Guide provides:

"3.7 Before making a TPO the LPA officer should visit the site of the tree or trees in question and consider whether or not a TPO is justified.

 . . .   . . . 

3.9 The trees or woodlands to be protected must be specified in the 1st Schedule of the TPO and their location shown on a map which is also included in, or annexed to, the TPO. The scale of the map (ideally an up to date Ordnance Survey map) must be sufficient to give a clear indication of the position of the trees or woodlands (1:1250 will usually be sufficient for trees or groups of trees; 1:2500 will usually be sufficient for woodlands).

 . . .   . . . 

3.11 During the site visit the LPA officer should gather sufficient information to draw up the TPO with accuracy. The LPA officer should accurately record the number and species of the individual trees or groups of trees to be included in the TPO and their location (see also paragraph 3.14 below). In relation to areas of trees or woodlands it is not necessary for the purposes of the TPO to record the number of trees, and a general description of species should be sufficient. It is, however, important to gather enough information to be able to define accurately on the map the boundaries of the areas or woodlands in question (see also 3.15-3.18 below)."

Paragraphs 3.17 and 3.18, which I read in full, provide:

"Areas of trees

3.17 Using the area classification (the so-called 'area order') is an alternative way of specifying scattered individual trees. All the trees within the defined area on the map are protected if their description in the 1st schedule of the TPO is all-encompassing (eg 'the trees of whatever species within the area marked A1 on the map'). The LPA may limit the TPO's protection to those species within the area which make a significant contribution to amenity, and this should be made clear in the description of the trees in the 1st schedule (eg 'the oak and beech trees within the area marked A2 on the map'). The area classification has its drawbacks. Firstly, it is possible that trees will be included in the TPO which do not merit protection. Secondly, unlike woodlands, the TPO protects only those trees standing at the time the TPO was made. Over time, as new trees are planted or grow within the area, it may become difficult to say with certainty which trees are actually protected. This is precisely the difficulty that arose in the Scottish case of Brown v Michael B Cooper Ltd, where a prosecution failed because of a lack of evidence that trees removed in 1990 had existed at the time the TPO was made in 1983.

3.18 In the Secretary of State's view the area classification should only be used in emergencies, and then only as a temporary measure until the trees in the area can be assessed properly and reclassified. LPAs are encouraged to resurvey their existing TPOs which include the area classification with a view to replacing them with individual or group classifications where appropriate."

21. Vigorous complaint is made by Mr Robinson in the present appeal to the effect that, leaving aside the four areas of woodland, there was an all-encompassing tree preservation order that covered some 22 acres of what was primarily park and grazing land, and he submits that this is contrary to the provisions to which I have just referred in the guidance. Miss Thomas, for the respondent, submits that in the present case there was an element of urgency and that the area order was appropriate and within the powers of the local authority. In my judgment, it is important that the guidance should be followed and, whilst I can see nothing unlawful in the way that the order in this case referred to an area rather than a more detailed exercise having been carried out, it seems to me that it is not the best practice for such an order to be allowed to continue for any substantial length of time. What is appropriate is that a more detailed inspection should at some point be undertaken.
22. It may be, in this case, that the use of the word "survey" has characterised, in the eyes of the appellant, what is necessary as something more sophisticated than the reality. In my judgment, what in fact occurred here would be aptly described by the word "inspection", and indeed it should be borne in mind that neither inspection nor survey, nor anything similar, is specified as necessary in the legislation, although it will no doubt be appropriate that in many, perhaps most, cases a physical inspection of some kind should take place upon the site before a tree preservation order can be made.
23. There was, as I have indicated, a factual issue between the appellant and Mr Kennedy, who carried out the survey. The appellant says that it took only 20 minutes; Mr Kennedy says that it took some two and a half hours. The appellant sought permission from Sullivan J to cross-examine Mr Kennedy. Sullivan J refused. He said that the court was not concerned, on a section 288 application, with the merits of a tree preservation order, but with whether the making of one was within the powers of the Act and whether the procedural requirements had been met. In my judgment, Sullivan J was correct. Certainly in my experience it is must unusual for there ever to be cross-examination on a section 288 application, although it is possible to envisage unusual circumstances in which one might be necessary. But that was not this case.
24. The effect of a tree preservation order is to impose an obligation to obtain consent before a protected tree is cut down or deliberately damaged etc. There is a right of appeal to the Secretary of State against a refusal by the local planning authority to grant consent. Consent is not necessary if felling is required in order to implement a grant of full planning permission or if, for example, the tree is diseased. The making of a tree preservation order is thus the beginning of the road and not the end of it. The landowner has the opportunity to challenge whether one is appropriate both with the local planning authority and then, if he is unsuccessful, with the Secretary of State. What the tree preservation order does is to afford the trees covered by it protection in the meantime. It is stating the obvious to say that once a tree has been felled it cannot be reinstated. What section 198 says is that if it appears to a local planning authority expedient in the interests of amenity to make a tree preservation order, it may do so. That said, it does seem to me that some care is required by local authorities in not unjustly interfering with a landowner's use of his land by making what I would describe as a blanket tree preservation order over an area of land when individual orders would be more appropriate. However, provided the local authority acts in accordance with ordinary public law principles, and follows the Act and regulations, the making and confirmation of a tree preservation order cannot, it seems to me, be challenged. There is no requirement for a survey. What is required is that, as has been pointed out, the subject-matter of the order can properly be regarded as "trees" and that the local planning authority must judge it expedient in the interests of amenity to protect those trees.
25. As to the nature of the survey in the present case and the refusal of the judge to permit cross-examination of Mr Kennedy, there was in my judgment no issue that was relevant to what the judge had to decide. His concern was whether the tree preservation order was properly made; whether the Act and the procedural requirements had been complied with. As Sullivan J observed, the consequence of an inadequate or superficial survey would be either that trees that ought to have been included in the order were not, or that trees were included that should not have been. As to the former, the landowner could hardly complain. As to the latter, the matter could be tested by an application to fell those trees that were said to be wrongly included in the order.
26. The next ground of complaint relates to the inadequacy of the plans. The appellant says that the plans were inaccurate, out of date, and of too small a scale. What the regulations require is that the order "shall indicate the position of the trees, groups of trees or woodlands, as the case may be, by reference to a map" -- see regulation 2. If, as the judge said, the plans attached to the order are sufficient to meet that objective, it is nothing to the point that they may be inaccurate or outdated in other respects. I have already referred to paragraph 3.9 of the guidance, which relates to the scale of the plans. In the present case, both of the plans were to a scale of a 1:2500 but in my judgment the judge's conclusion that they adequately identified the trees and woodlands in question cannot be faulted.
27. We have had the opportunity of analysing the circumstances of this case in considerably greater detail than Mance LJ when he concluded that there was an arguable case for an appeal. Following that analysis I am satisfied that there is nothing of substance in any of the grounds upon which permission to appeal was granted. The statutory provisions for making and confirming a tree preservation order were met and the trees and woodlands covered by the order were adequately identified in the two plans attached to the order. The judge dealt with the issues clearly and appropriately in the course of what was in my view an impeccable judgment.
28. I would dismiss the appeal.
29. LORD JUSTICE THORPE: I agree. In the light of the general relationship between the appellant and his local council, it would have been prudent for the council's officer to have followed more closely the guidance contained in chapter 3 of the departmental good practice guide. The council's decision to apply blanket protection by an area order rather than to specify individual trees in the parkland round the house inside the boundary shelter belts may well have provoked the appellant's challenge.
30. LORD JUSTICE PILL: I also agree. Mr James Robinson is the owner of substantial land and premises at Marton Hall in the East Riding of Yorkshire. The relevant council, the East Riding Council, made a provisional tree preservation order on 17 November 2000 which affected a considerable part of that land and the order was confirmed on 9 April 2001. The appellant's essential submission is that the information placed before the council was insufficient to enable it to perform its statutory duty. Section 198 of the Town and Country Planning Act 1990 ("the 1990 Act") provides in subsection (1):

"(1) If it appears to a local planning authority that it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area, they may for that purpose make an order with respect to such trees, groups of trees or woodlands as may be specified in the order."

By section 2(1)(c) of the Town and Country Planning (Trees) Regulations 1999 the order "shall indicate the position of the trees, groups of trees or woodlands, as the case may be, by reference to a map".

31. The appellant submits that the information placed before the authority did not enable it to perform its duty. Moreover, the map was so defective in its presentation that it was not a map within the meaning of the regulations. The information available to the local planning authority, submits the appellant, was so vague as to be meaningless. He points out that there is no appeal to an inspector appointed by the Secretary of State against a tree preservation order as such and that makes it more important that, from officers of the council or elsewhere, the members of the authority should obtain proper and full information before making a tree preservation order. He further submits that he should have been permitted at the hearing before the judge to cross-examine Mr Kennedy, tree officer of the council who had made the recommendation to the council to make a tree preservation order.
32. Criticisms can fairly be made of the procedures followed by the council before the order was made. However, taking at its least favourable the evidence available (least favourable, that is, from the point of view of making an order) it cannot in my judgment be said that the information available to the authority was so inadequate that the members were unable to make the judgment required by section 198. Moreover, the defects which Mr Robinson has alleged are present in the map are not such that the document can be said not to be a map within the meaning of the regulations. Lord Justice Scott Baker has described the relevant considerations and the information which was available.
33. Neither was this one of the comparatively rare cases, when the present relief is sought, in which it was appropriate to permit cross-examination of a witness, that is Mr Kennedy. Even had the appellant made a successful cross-examination along the lines which he has indicated to the court, the court would have been left in a position whereby, having regard to the statutory test and the statutory purpose, the local planning authority was entitled to make the order it did.
34. Reliance has also been placed by the appellant upon an internal memorandum which passed between the Planning Officer (Trees and Landscape) of the council and the Development Control Officer for Beverley on the 23 May 2000. That was at a time when it was believed, wrongly, that an earlier tree preservation order was in force and the appellant had made an application for planning permission for use of land as a touring caravan site and improved access to the highway. The memorandum states that the trees and landscape planning officer would require "much more detail" to assess the impact of the proposals on mature trees on or adjacent to the site: "A full and detailed tree survey is required showing the species position, size and canopy spread of all trees and indicating those which will require removal."
35. The submission made is that if the council is seeking that information upon a planning application, it indicates the amount of information which needs to be available to it before it can make an order under section 198. I do not accept that submission. When an application is made for planning permission, which affects trees believed to be subject to a tree preservation order, it will often be in the interests of the applicant for permission to produce detailed evidence of the kind contemplated in that memorandum. The council's request for such information, in its consideration of a planning application, does not involve any admission that the work which led to the making of the order was inadequate for that purpose. I only add that I am surprised, if it be the case, that the contents of the memorandum were not passed on to Mr Robinson at the material time, as he says they were not.
36. For those reasons and the reasons given by Lord Justice Scott Baker, I too would dismiss this appeal.

ORDER: Appeal dismissed with costs, summarily assessed as £5,023.

(Order does not form part of the approved judgment)