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Cite as: [2000] EWHC Admin 387

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MS BEYERS v. SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT AND REGIONS and UTTLESFORD DISTRICT COUNCIL [2000] EWHC Admin 387 (31st August, 2000)

IN THE HIGH COURT OF JUSTICE CO 4446/99
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

Royal Courts of Justice
Strand
London WC2

Thursday, 31st August 2000

B e f o r e:
MR ROBIN PURCHAS QC
(Sitting as a Deputy Judge of the Queen's Bench Division)
- - - - - - -
MR MS BEYERS
-v-
THE SECRETARY OF STATE FOR THE ENVIRONMENT,
TRANSPORT AND THE REGIONS
and
UTTLESFORD DISTRICT COUNCIL
- - - - - - -
(Computer-aided Transcript of the Handed Down
Judgment of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 020 7421 4040
Fax No: 020-7831 8838
Official Shorthand Writers to the Court)
- - - - - - -
MR T COSGROVE (instructed by Merricks Solicitors, Ipswich, Suffolk IP1 1DQ) appeared on behalf of the Applicant.
MR D FORSDICK and MR D ABRAHAMS (instructed by The Treasury Solicitors) appeared on behalf of the Respondent.

Judgment
As Approved by the Court
(Crown Copyright)

MR ROBIN PURCHAS QC

In this application, Mr M S Beyers applies under Section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash the decision of the First Defendant, dismissing the Claimant's appeal against (1) the refusal of consent by the Second Defendant under the District of Uttlesford (Great Dunmow) (No 1) Tree Preservation Order 1981 ("the TPO") for the felling of an oak tree at 1, The Close, Great Dunmow, Essex, and (2) the issue of a certificate under Article 5 of the TPO that the Second Defendant was satisfied that the tree had special amenity value.
Mr Tom Cosgrove, who appears for the Claimant, relies upon three grounds, the first of which raises an issue of general importance, that is what are the requirements for certification for that purpose. Mr Cosgrove submits that in the present case there was no lawful certificate issued by the Second Defendant at the same time as its decision to refuse consent under the TPO. The second ground relied upon by Mr Cosgrove is that both the notice of refusal and the certificate were nullities because no reasons were given for the refusal of consent, on which the certificate was itself parasitic. Third, he submits that the First Defendant failed to take into account the consent granted on 8th May 1998 for a 50% reduction in the crown of the tree which the First Defendant accepted would result in the tree ceasing to be of special amenity value.
STATUTORY FRAMEWORK
The TPO was made on 11th August 1981 under Section 60 of the Town and Country Planning Act 1971 ("the 1971 Act"). Section 60(5) of the 1971 Act provided that the First Defendant could make regulations as to the form of tree preservation orders. By Section 174 a tree preservation order might include provision for the payment of compensation in respect of loss or damage caused or incurred in consequence of the refusal of any consent or its conditional grant.
The relevant regulations for the present purposes are the Town and County Planning (Tree Preservation Order) Regulations 1969("the Regulations"), which were made under equivalent provisions in the Town and Country Planning Act 1962 (now replaced by the Town and Country Planning (Trees) Regulations 1999 with effect from 2nd August 1999). Regulation 4 of the Regulations required that a tree preservation order should be in the form or substantially in the form set out in the Schedule thereto. The TPO effectively reproduced the form of order set out in the Schedule as amended at that time.
Article 2 of the TPO provides that, subject to the provisions of the TPO and the exceptions in the Second Schedule, no person should except with the consent of the authority and in accordance with the conditions, if any, imposed on the consent cut-down or otherwise damage or destroy any tree specified in the Schedule to the TPO. The Schedule included as T20 the oak tree, the subject of the present application.
Article 3 requires an application for consent to be in writing.
By Article 4 "(1) Where an application for consent is made to the authority under this Order, the authority may grant such consent either unconditionally, or subject to such conditions (including conditions requiring the replacement of any tree by one or more trees on the site or in the immediate vicinity thereof), as the authority may think fit, or may refuse consent ...".
By article 9 "Subject to the provisions of this Order any person who has suffered loss or damage in consequence of any refusal ... of consent under this Order or of any grant of any such consent subject to conditions, shall, if he makes claim on the authority within the time and the manner prescribed by this Order, be entitled to recover from the authority compensation in respect of such loss or damage: Provided that no compensation shall be payable in respect of loss or damage suffered by reason of such refusal or grant of consent in the case of any trees the subject of a certificate in accordance with Article 5 of this Order."
Article 5 provides:
"Where the authority refuse consent under this order or grant such consent subject to conditions they may when refusing or granting consent certify in respect of any trees for which they are so refusing or granting consent that they are satisfied: (a) that the refusal or condition is in the interests of good forestry or (b) in the case of trees other than trees comprised in woodlands that the trees have an outstanding or special amenity value."

Article 6 provides that, where consent is granted to fell any part of a woodland, the authority shall give to the owner of the land a direction in writing specifying the manner and time of re-planting.
Article 8 and the Third Schedule apply the provisions of Part III of the 1971 Act as adapted and modified, including:
"S.36(1) Where an application is made to the authority for consent under the Order and that consent is refused by that authority or is granted by them subject to conditions or where any certificate or direction is given by the authority, the applicant ... may by notice under this section appeal to the Secretary of State";
Section 36(2), which requires the notice of appeal to be served within 28 days "from the receipt of notification of the decision, certificate or direction, as the case may be, or such longer period that the Secretary of State may be allow";
Section 36(3) "Where an appeal is brought under this section from a decision, certificate or direction of the authority," the Secretary of State ... may allow or dismiss the appeal or may reverse or vary any part of the decision of the authority, whether the appeal relates to that part thereof or not, or may cancel any certificate or cancel or vary any direction and may deal with the application as if it had been made to him in the first instance";
Section 37, provides an appeal in default of decision within the specified two month period and applying Section 36 "as if the consent to which it relates had been refused by the authority"; and
Section 33, provides that any consent under the Order shall enure for the benefit of the land.
.
Finally, by Article 4(2) of the TPO:
"The authority should keep a register of all applications for consent under this Order containing information as to the nature of the application, the decision of the authority thereon, any compensation awarded in consequence of such decision and any directions as to replanting of woodlands; and every such register should be available for inspection by the public at all reasonable times."
BACKGROUND
The Close is a Grade 2 listed complex of Victorian buildings. The tree in question is a mature English Oak, some 120 years old, which stood outside the Claimant's house,1, the Close. The tree was prominent in the street scene. Unfortunately, the house suffered structural damage from subsidence and ground heave as a result of the action of tree roots in the clay subsoil.
On 19th January 1998 loss adjusters involved in a claim in respect of the damage applied for consent to fell the tree. The decision was delegated by the Second Defendant to one of its planning officers. A landscape officer of the Second Defendant, following a site inspection, recommended that the application should be refused and that a certificate under Article 5 should be issued. The planning officer accepted that recommendation and instructed the landscape officer to issue a Notice of Refusal and a certificate under Article 5.
On 26th March 1998 a Notice of Refusal was sent to the loss adjusters. It gave no reasons for refusal. The notice was accompanied by a proforma note setting out the right to compensation and the right to appeal, including that "Compensation is not payable in respect of any trees which are the subject of a certificate issued by the District Council in accordance with Article 5 of the Tree Preservation Order when giving a decision upon an application. Particulars of any such certificate are attached to the Notice of Decision." The notice also made reference to the right of appeal against "any certificate ... given by the District Council in pursuance of the provisions of the Tree Preservation Order". The notice had been sent under cover of a letter dated 26th March 1998, which referred to the decision notice attached and continued:
"Your application has been refused. However, I suggest you may wish to make a new application for consent to carry out an overall crown reduction of the tree. You do have a right of appeal against the Council's refusal of consent and the issuing of the Article 5 certificate accompanying the Decision note. Guidance notes on how to appeal are attached. If you would like further information about the Council's decision or procedures, please contact this office quoting the reference number given above."
No Article 5 certificate was enclosed.
On 23rd April 1998 the loss adjusters applied for consent to reduce the crown of the tree by 50%. Consent was granted on 7th May 1998. It was subject to a condition that work be carried out between the 1st October and 31st March for the reason that it was "in the interests of good arboricultural practice".
The loss adjusters then engaged Michael Lawson, an arboricultural consultant. He concluded that the proposed reduction by 50% would not be effective to prevent further damage. He met the Second Defendant's planning officer on 7th August 1998. On 11th August 1998 Mr Lawson wrote to the officer summarising the discussion including
"(1) The refusal of Uttlesford District Council to allow the felling of the oak tree was not made with any enforceable Article 5 Certificate."
On the same day the planning officer wrote, referring to the letter dated 26th March 1998 and stating
"It has come to my attention that the Article 5 Certificate referred to in our own letter did not accompanying the decision notice. Consequently, I herewith enclose the Certificate together with the guidance notes on the right of appeal."
The enclosed certificate was dated 10th August 1998 and stated that the Second Defendant was satisfied that the tree had special amenity value and set out reasons for issuing the certificate including the contribution of the tree to the street scene. The certificate indicated that the Claimant could appeal within 28 days from the date "he received that decision".
On 23rd September 1998, the Claimant appealed against both the refusal of consent and the certificate, relying in respect of the latter upon the contention that the issue of the certificate was unlawful because it had not been issued at the same time as the refusal of consent. The appeal was accepted by the First Defendant. It was dealt with by written representations.
The decision letter of the First Defendant was dated 30th September 1999 and was accompanied by a report of an officer who had inspected the site. The First Defendant dealt with the validity of the Article 5 Certificate in Paragraph 13 of the decision letter as follows:

"In respect of the Article 5 Certificate, the Secretary of State notes that Article 5 of the Order states that when refusing consent the local planning authority may certify that, inter alia, the trees have an outstanding or special amenity value. The Secretary of State considers that this means that the decision to certify should be taken at the same time as the decision to refuse consent. The expectation therefore is that the decision notice in the Article 5 Certificate would be issued on the same date. The key issue in deciding if the Certificate is valid is to establish whether the decision to certify was taken at the same time as the decision to refuse consent. The Council have confirmed that covering letters which accompany notices of refusal in cases where Article 5 Certificates are to be issued are not produced from a standard draft but are prepared freshly each time. They have also confirmed that the decision to issue a Certificate was taken at the same time as the decision to refuse consent for the felling of the appeal tree. The Secretary of State sees no reason not to accept the Council's assurance that the decision of issue a certificate was taken at the same time as determining the application. He considers the omission of the Certificate was most likely to have been an oversight. In the circumstances he considers that the Certificate is valid. In dating the Certificate 10th August 1998, the Council sought to give your client the opportunity to appeal against the certificate. In trying to ensure that your client was not prejudiced by the omission of the Certificate, the Council have raised doubts about its validity. However, the Secretary of State is satisfied, for the reasons given above, the Article 5 certificate is valid."
In paragraphs 14 to 16, the First Defendant considered the merits of the proposal to fell the tree and accepted his inspecting officer's view that it would not be justified and that the appeal should be dismissed. In paragraph 17, the First Defendant considered the merits of the Article 5 certificate, concluding that in its local context the tree merited the description as having special amenity value. He concluded:
"Although he appreciates that after a 50% reduction the tree would no longer merit such status, he is satisfied that the Council's issuing of the Certificate at the time of refusing consent for felling was justified. He therefore intends to dismiss this part of your client's appeal."

I should add that at the time of the appeal decision the 50% crown reduction pursuant to the consent dated 7th May 1998 had not been carried out. He went on to dismiss the appeals.
At the time the First Defendant had issued advice on tree preservation orders in the Memorandum to Circular 36/78, which at paragraph 62 advised in respect of compensation:
"The issue of (Article 5 certificates), particularly in the (case of trees with outstanding or special amenity value), should be undertaken discriminately and should not be used just to avoid compensation claims."

The First Defendant's Guide to the Law and Good Practice of Tree Preservation 1994 at paragraph 6.49 advised authorities to include in their decision notice reasons for their decision and at paragraph 6.55, in respect of Article 5 certificates that authorities should ensure that "The applicant is left in no doubt that a certificate has been issued" or the grounds for it.

THE CERTIFICATE
Submissions
Mr Cosgrove submits that under the Act, the Regulations and the TPO the general principle is that a person who has sustained loss and damage in consequence on the refusal of consent is entitled to recover compensation for it. The exception from that general principle is where a certificate is issued in accordance with Article 5 of the Order. Article 5 makes two requirements, first that the authority "certifies" that it is satisfied that the requirements of Article 5 are met, that is that the decision is in the interest of good forestry or that non- woodland trees have outstanding or special amenity value and, second, that it must so certify when making its decision on the application. Thus a certificate issued many months later after the application had been decided would be invalid.
This was not, he submits, merely a procedural requirement. It went to jurisdiction. The policy underlying the provision was to ensure that the process of certification was contemporaneous with the decision and not a matter of hindsight, possibly in the face of a claim for compensation. To certify meant, at the very least, communication of the fact, normally to the applicant. Thus an unrecorded or uncommunicated decision, even if made at the same time as the decision to refuse or grant conditional consent, would not suffice. Mr Cosgrove referred to the decision of the Lands Tribunal in Henriques v Swale Borough Council [1997] 1 PLR 1.
That construction of Article 5, he submits, would be consistent with Section 36 of the 1971 Act, as modified by the Third Schedule to the TPO, which gives a right of appeal within 28 days from the date of the certificate. Thus it pre-supposed that the process of certification would involve the physical issuing of a certificate, as indeed was required by Article 9.
In this case the First Defendant had misdirected himself in that in paragraph 13 he concluded that the decision to certify should be taken at the same time as the decision to refuse consent. A decision to certify is not necessarily the same as certifying or issuing a certificate, particularly as here where the decision was delegated to an officer rather than made by a committee sitting in public. There was no evidence of any certificate being issued contemporaneously with the decision to refuse consent.
Mr David Forsdick, who appears for the First Defendant, submits that to succeed the Claimant must demonstrate that the certificate issued in the present case pursuant to the decision of the officer was a nullity and void. He points out that there is no special or formal requirement for a certificate under Article 5. He does, however, accept that some form of communication would be necessary. Specifically, he accepts that the discussion between the landscape officer and the planning officer, as a result of which the planning officer decided to refuse consent and to certify that the tree had a special amenity value, would not suffice. He does rely, however, on the fact that the planning officer instructed the issue of the certificate and that the letter dated 26th March 1998 recorded that the Claimant had a right of appeal, not only against the refusal of consent, but also against "the issuing of the Article 5 certificate accompanying the decision notice". Thus there was both a decision to certify and an indication of the right of appeal. The only failure was the simple omission to enclose the certificate with the decision notice.
In those circumstances, he submits, the Claimant and the loss adjusters would have been aware that the Second Defendant had through its officer had decided to issue a certificate and of their right of appeal in that respect. There was no ground for issuing a certificate in the case of this tree, which did not form part of a woodland, other than under Article 5(b), that is as a tree of outstanding or special amenity value. No questions were raised at the time as to the issuing of the certificate. On the contrary, the loss adjusters applied for consent for pruning of the tree by 50%, pursuant to the advice in the same letter.
The certificate, issued and dated 10th August 1998, he submits, ensured that the Claimant's right of appeal was maintained. There was no prejudice. If there was any error, it was technical and could not render the certificate a nullity. In answer to the question what comprised the certification by the Second Defendant under Article 5, Mr Forsdick submitted that it was the planning officer's instruction to the landscape officer to issue the certificate together with the letter dated 26th March 1998. That was, he submitted, effectively what the First Defendant had decided in paragraph 13 of the decision letter.
Decision
While the power to make a tree preservation order was found in Section 60 of the 1971 (now the 1990 Act Section 189), the specific statutory requirements for the exercise of the power were for the purposes of the present case in the 1969 Regulations and, in effect, are reproduced in the TPO itself. In particular, the provision for compensation pursuant to Section 174 of the 1971 Act is required to be included by Regulation 4(1) of and Articles 5 and 9 of the Schedule (as amended in 1981) to the Regulations. I accept the submission of Mr Cosgrove that the substantive provisions for compensation there set out go to jurisdiction and are not merely procedural.
Article 9 is the principal provision giving the right to compensation. It is specific but conditional, and subject to a proviso. It provides a fundamental right to compensation, if a person has suffered loss and damage in consequence of any refusal or conditional consent. The right is, however, subject to the other provisions of the TPO and is conditional on a claim made within the time and in the manner provided by the Order. A claim made outside the 12 month period under Article 11 would be ineffective. The proviso is that no compensation is payable in the case of any tree, the subject of a certificate in accordance with Article 5 of the Order. While there is no formal requirement for a certificate other than it is to be made in accordance with Article 5, the normal use of that term would, in my judgment, contemplate something in writing that certifies or declares what is to be certified.
Article 5 provides that the authority can, when it refuses consent or grants it subject to conditions, certify in respect of any tree, the subject of that refusal or conditional consent, that it is satisfied as set out under sub-articles (a) or (b). The Article is , accordingly, dependent upon a decision made by the authority on an application for consent. For example, there is no power to grant a certificate in the case of an appeal in default of decision under Section 37, as modified under Schedule 3.
What then is the meaning of "certify" for the purposes of the Article? In my judgment it requires a formal and communicated act of attesting or declaring the authority's satisfaction in accordance with the Article. Thus one officer giving instructions to another officer to issue a certificate would generally not constitute certification for the purpose of Article 5. There must be at least a public or communicated act of certification. The question whether an actual certificate is required to be issued is more difficult. I have already referred to Article 9 above, which in my judgement plainly presupposes that a certificate would be issued. That is consistent with the provisions of Section 36, as modified by Schedule 3, which gives the right of appeal against "any certificate" (Sections 36(1) and (3)), and the 28 day period for appeal from the receipt of the certificate (Section 36(2)). In my judgment, reading Articles 5 and 9 together in the context of the TPO as a whole, the authority is required to certify by issuing a certificate, which would entail a written document to that effect. It does not seem to me that sense can be given to the TPO, unless that is the effect of the requirement to certify under Article 5 and the certificate under Article 9.
I then turn to consider the qualification that the authority may do so "when refusing or granting conditional consent". That again seems to me a condition that goes to jurisdiction rather than procedure. In other words, the authority cannot certify for the purposes of Article 5 other than when it is refusing or conditionally granting consent. I accept Mr Cosgrove's submission in this respect as to the underlying policy of the Article, that is that, if the authority is to take advantage of the exception, it must do so at the time of the decision and is required to do so in a form that is on the record and communicated.
What in the circumstances of a particular case would amount to certifying "when refusing or granting consent" would be for determination as a matter of fact and degree by the decision-maker. For example, if the decision is by committee, there would normally be a committee resolution for refusal and for the issue of a certificate. That would be followed by the actual issue of a notice of decision and the certificate itself. In those circumstances it would seem to me that the process of refusal and certification would embrace both the decision of the committee and the issue of the notice and the certificate. With a delegated decision a similar approach would be appropriate, in that the process would start with the officer's decision to refuse and issue a certificate and would be completed by the issue of the relevant notices. However, I would stress that each case would turn on its own facts as to whether the certificate was in that sense contemporaneous with the decision.
Turning then to the decision letter, the First Defendant's primary findings in this respect are found in paragraph 13. The First Defendant identified his "key issue" as whether the decision to certify was taken at the same time as the decision to refuse consent. The First Defendant specifically emphasised the phrase "the decision to certify" by underlining it. He went on to answer that issue by making three findings of fact, first that the decisions were taken at the same time, second that the omission of the Certificate was likely to have been an oversight and, third, that the Certificate was dated 10^th August 1998 to preserve the Claimant's opportunity to appeal. The First Defendant expressed his conclusion that the Certificate was in the circumstances valid following the first two findings. In a sense the first finding was sufficient to answer the identified key issue. The findings in respect of the Certificate seems to have been more by way of explanation how the finding as to the timing of the decision was consistent with the issue of the Certificate on and dated 10^th August 1998.
In the last sentence the First Defendant stated that he was satisfied as to the Certificate's validity for the reasons set out in the paragraph. I have no doubt that the First Defendant was there referring to the Certificate issued on 10^th August 1998. The basis for his conclusion was that the decisions were made at the same time, not that the certification was contemporaneous with the decision to refuse consent. Thus, at the critical part of the decision letter in this respect, the First Defendant in my judgement misdirected himself as to the appropriate test to be applied to answer the question as to the validity of the Certificate issued on 10^th August 1998. It does not seem to me that he considered at all whether, in the circumstances and as a question of fact and degree, the Certificate had been issued at the time of the decision to refuse. Indeed, on the evidence it is doubtful whether that conclusion would have been open to him at all. The process of refusal of consent was effectively concluded by the issue of the notice of refusal with a note as to the right of appeal. The issue of the certificate arose out of the realisation of the omission to issue the certificate with the decision notice at or following the meeting on 7^th August 1998.
Although in this Court the First Defendant has relied upon the instruction given by the officer to issue the certificate and the letter dated 26^th March 1998 rather than the Certificate itself, it does not seem to me that that was the approach of the First Defendant in his decision letter at all. For the reasons I have given I do not accept that uncommunicated instructions to another officer would be capable in law of amounting to certification for the purposes of Article 5. While the First Defendant accepted that the letter was not a standard letter, there was nothing on its face, accompanied as it was by both a notice of refusal and notes of the right to compensation and to appeal that were plainly based on a standard format, to indicate that the letter was not itself also based on a standard format. Both the letter and the notice of the right to appeal refer to the Article 5 Certificate accompanying or attached to the decision notice. The letter did not itself purport to be a certificate at all. The terms of the letter are in my view at best equivocal as to whether or not a certificate had in fact been issued, when none was attached to the decision notice. While I accept that, if this was simply a matter of procedure, the letter might be relevant to the question of prejudice, the failure to certify in accordance with the requirements of Article 5 and in particular at the time of refusing consent was in my judgement fatal to reliance by the Second Defendant on the Certificate subsequently issued on 10^th August 1998.
For completeness I should refer to paragraph 17 of the Decision Letter where the First Defendant states "... he is satisfied that the Council's issuing of the Certificate at the time of refusing consent for felling was justified". In this Court Mr Forsdick did not rely upon that statement, which was not made as part of the consideration of the validity of the Certificate, as adding to or altering what I find to be his reasons clearly set out in paragraph 13. In my judgment he was right not to do so.
In the circumstances, for the reasons set out earlier in this judgment, I am satisfied that the decision taken by the First Defendant, upholding this Article 5 certificate, was not within the powers of the Act and that the decision should be quashed on this ground. While in the circumstances it is unnecessary for me to consider the other grounds relied upon by Mr Cosgrove, as they were argued I will shortly set out my conclusions in respect of them.
REASONS
As I have indicated above, no reasons were given for the refusal of consent in the present case. Mr Cosgrove accepts that there is no requirement to give reasons in the Regulations or the TPO. He referred me to de Smith, Judicial Review of Administrative Action, Fifth Edition, particularly at paragraph 9.058, that is that as a matter of fairness reasons may be required for administrative decisions. He relied upon the advice in the First Defendant's guide, that reasons should be given for decisions refusing consent or imposing conditions. He submitted that without reasons the Claimant could not properly judge whether and, if so, on what grounds to appeal. Without reasons the decision to refuse and the notice of refusal were bad in law and of no effect. Thus, he submits, in the absence of a lawful refusal the certificate, which is parasitic on the refusal, must also fail.
Mr Forsdick counters these submissions on the ground that there is no requirement for reasons. Insofar as the requirement for reasons rests on the question of fairness, he submits that in this case there was no injustice or prejudice in that the concern of the Second Defendant was plain. If there was any uncertainty, the Claimant or the loss adjusters could have asked for particulars. Their failure to do so demonstrated the absence of prejudice, particularly seeing that the loss adjusters did act on the letter dated 26th March 1998 by applying for consent for the 50% crown reduction. In any event, if the refusal was invalid, the appeal would have been against non-determination and the decision of the First Defendant would still be valid. In that respect he referred me to Brayhead (Ascot) Limited v Berkshire County Council [1964] 2 QB 303.
In my judgment, Mr Forsdick is correct in his submissions. There is no requirement under the TPO for reasons. If there is to be a requirement for reasons, it could only be as a matter of fairness. In this case I am not persuaded that there are any grounds to conclude that the absence of reasons created any unfairness which would warrant striking down the refusal. In my judgment, accordingly, this ground fails.
50% REDUCTION
Mr Cosgrove further challenges the decision of the First Defendant to uphold the certificate on the ground that the First Defendant failed to have regard or sufficient regard to the grant of consent for 50% reduction, as a result of which the First Defendant accepted in paragraph 17 of the decision letter that the tree "would no longer merit such status".
For the purposes of this ground Mr Cosgrove had to argue that the appropriate date for determining the merits of the Certificate was either the date of the First Defendant's decision or 10^th August 1998, when the Certificate was in fact issued. The original decision and the notice of refusal were both before the grant of consent for the crown reduction, which was on 8^th May 1998, and could not therefore have been taken into account at that time in any event. As the consent had not been implemented at either of the later dates, it was immaterial to Mr Cosgrove's argument which would be the appropriate date for the First Defendant's consideration. That question was, accordingly, not the subject of submissions before me and it is unnecessary for me to express any view on it.
Mr Cosgrove's point is a short one. He sought to support it on the basis that, where consent had been granted, any decision as to the special value of a tree should take into account the effect of an existing consent, as if it had been implemented.
I can also deal with the point shortly. I am firmly of the view that the relevant question for the authority and, on appeal, the First Defendant, is what is the value of the tree in question in its existing state, not what it might become if a consent were to be implemented. I recognise that, once issued, the certificate is effective to remove the right to compensation in respect of subsequent decisions in respect of the tree, the subject of the certificate. However, that seems to me consistent with the structure of the Regulations and the TPO. That is that the authority should not in the public interest be responsible for paying compensation in respect of decisions to refuse consent or impose conditions in respect of a tree which is of outstanding or special amenity value.
If no application to fell had been made in the present case, the Authority could in my judgement properly have issued an Article 5 certificate when it granted conditional consent for the 50% crown reduction, notwithstanding that it recognised that the effect would be to remove the tree's special amenity value. If no certificate was issued and the consent was issued and implemented so that the tree lost its special amenity value, it would no longer qualify for a certificate on any future application, whether to fell or otherwise. In the present case, for example, consent for a 30% crown reduction was given in respect of the tree in 1990 but without the issue of a certificate. It was implemented. Evaluation of the tree for the purposes of Article 5 thereafter necessarily took into account the crown reduction that had taken place. It is the tree's existing amenity value that is relevant, not what it might become in the future if one consent or another is in fact implemented.
In my judgment, the conclusion of the First Defendant in this respect that, notwithstanding the effect of the consent for 50% reduction if it was implemented, he was satisfied that the tree had special amenity value in its existing state accorded with the requirements of the TPO and cannot otherwise be criticised. Accordingly, I conclude that this ground is also not made out, but for the reasons I have given this application succeeds on the first ground relied upon by Mr Cosgrove.

- - - - - - - - -

MR PURCHAS QC: For the reasons set out in the unrevised judgment, which I now hand down, this application succeeds.

MR COSGROVE: My Lord, I am grateful. My Lord, in those circumstances, I would make an application for the Applicant's costs to be paid by the Secretary of State in the normal way.
My Lord, there was a schedule in anticipation of a summary assessment served on the Secretary of State before the substantive hearing and it was served on 27th July. No doubt the Court will have a copy. That came to a total of £7,821.68. Since then, there has been an updated version which comes to a slightly larger total. My Lord, those instructing me, as I understand it, heard nothing, perhaps not surprisingly in relation to the more recent schedule, but certainly nothing in relation to the earlier schedule.

MR PURCHAS QC: Shall I hear from Mr Abrahams? You are also appearing in this case.

MR ABRAHAMS: That is right, my Lord. The Secretary of State opposes the order for costs, in principle, and there are a number of matters arising from the schedule of costs itself.

MR PURCHAS QC: Let us deal with principle first.

MR ABRAHAMS: My Lord, you will be aware that although the Applicant succeeded on the ground that the decision to issue the Article 5 certificate was unlawful, the complaint in relation to the refusal of consent for the felling of the tree was not successful and, in my submission, that was an important part of the overall application. There was significant relief being sought by the Applicant which, my Lord, you have refused to grant. Therefore, it is appropriate, in my submission, that a discount of 40% would be reasonable.

MR PURCHAS QC: Will you remind me? I am looking for the actual Notice of Motion. The claim was against both the refusal and the issuing of the Article 5 certificate, is that not right? In the skeleton, it was really reasons, which was the attack on the actual refusal, looking at paragraph 10. All the other points went to the certificate.

MR ABRAHAMS: Yes, my Lord. The question of reasons was the one issue which went to the refusal of consent. Of course, in opposing the application, the Secretary of State had to have in mind the practical consequences on the ground, and in that context, a decision to quash the refusal to fell the tree would have had very significant additional implications over and above the relief that has been granted.

MR PURCHAS QC: Insofar as the argument on issues 2 and 3, that is the reasons point, and the crown reduction point, you say that Mr Cosgrove failed and I should bear that in mind in making the award of costs.

MR ABRAHAMS: Absolutely, my Lord.

MR PURCHAS QC: Could I hear what Mr Cosgrove as to say on that?

MR COSGROVE: My Lord, can I respond to that specific point by simply saying this: in our submission, it was the principal point, on which the applicants proceeded, that for both - when one looks at the claim form, the majority of what was being suggested by way of argument in that. Also in the skeleton, my Lord will recall that my learned friend,
Mr Forsdick, who appeared for the Secretary of State at the hearing with myself, certainly, so far as the body of the skeletons were concerned, it was principally on that point. Moreover, so far as oral submission was concerned, you will remember that the majority of the time, the case took three-quarters of the day, was concerned as to the point. It is right that there were other points as well which were dealt with very shortly, orally by me and indeed by my learned friend. In those circumstances, the Applicant having succeeded and, of course, one only needs to succeed on one of these points, it being a principal point that was argued at length substantially by all parties. We would submit that the general rule as to costs should follow and we should be given our costs.
My Lord, that is my response to that. Can I raise one matter, which I was going to raise in opening, in relation to the Schedules. I do not want to----

MR PURCHAS QC: Can we leave the Schedules until we have dealt with the principle. Yes, is there anything else you want to say on that?

MR COSGROVE: Not on that point, no.

MR PURCHAS QC: If I am minded to make a discount on the award of costs to award 75% of the costs, would you wish to make any further submissions to me?

MR ABRAHAMS: No, my Lord.

MR PURCHAS QC: In this matter, application for costs is made on behalf of the claimant, in whose favour I have found. In the application, reliance was placed on three grounds, of which the claimant has only succeeded on one.
While I accept that the majority of the argument and the time of this Court was directed towards the first and principal ground, having regard to the overall time taken in court and the issues with which we were concerned, I consider it appropriate that an order should be made that the claimant recovers 75% of his costs, and I so order.
Mr Cosgrove, so far as the Schedule goes, in the normal course I would turn to Mr Abrahams to find out what his specific concerns are. This case lasted less than a day.

MR COSGROVE: My Lord, yes. We started about 11.30 a.m. and we may have sat half an hour later than normal, but it ended by 4.35 p.m., so less than a day.

MR PURCHAS QC: Yes. I will hear from Mr Abrahams.

MR COSGROVE: My Lord, can I indicate that there is an error on the schedule which----

MR PURCHAS QC: I received a revised schedule yesterday in the total sum of £8,112.94; is that right?

MR COSGROVE: That is right, unfortunately it has the wrong total. I have mentioned this to my learned friend briefly, because I am afraid I only saw it this morning. Can I deal with it in this way: when one adds up the various categories, which I have sought to do -- I have spoken to those instructing me on the 'phone today. One fact arises that there is a substantially larger total than the £8,112.94.
The correct way that I am instructed to add up this schedule would be, if your Lordship goes to the second page, you will see the subtotal of £4,839, and that is the first figure. To that should then be added the fees laid down for counsel which are not totalled, but they come to £1,950, that is the second figure. Those instructing me apologise for this.

MR PURCHAS QC: What goes in under that figure?

MR COSGROVE: £1,950.

MR PURCHAS QC: That goes in under £1822.08?

MR COSGROVE: That goes under counsel's fees, it has not been added up, there should be a total there. This is to explain how one gets the correct total.

MR PURCHAS QC: Can you give me the total again?

MR COSGROVE: £1,950. To that you then add the next figure £1,822. Your Lordship will see the next bold box which is the fees for travel and expert's fees. Then to the fourth and final figure, one should then add, the two figures below the final total, the VAT figures.
The grand total, if one adds all of those, comes to £10,062.94. Now, my Lord, I have sought instructions and I have indicated those instructions, it is highly unsatisfactory that, firstly, this does not add up and those instructing me have indicated this: I say it is anticipated that there might be some suggestion by the Secretary of State that because there were two grounds that did not succeed, that there may be arguments for reductions, and indeed there have been.
My Lord, what I propose to do, and I have taken instructions on this, is to invite your Lordship to approach it by looking at the first schedule which is the total of £7,821.68 and ask for that amount, thereby avoiding the difficulties of what was added on subsequently and, in effect, not claiming for today's attendance and the work in the intervening period. If that goes someway to dealing with the 75% point, then so be it, but I am going to ask just for that amount for these two reasons: firstly, because I think it is unsatisfactory that the Schedule does not add up and has been given to the court and, secondly, because it may be more reasonable to meet the point like this.

MR PURCHAS QC: It may well be reasonable, I do not know at present. The contents, as it were, of the negotiations----

MR COSGROVE: No, they are not meant to be done.

MR PURCHAS QC: Are you saying, I do not think you are, that the actual figure for summary assessment should be £7,821.68. As I understand it, you are saying that should be the effect of an order for 75% of the amount.

MR COSGROVE: Indeed, the basis I put that on is that those instructing me are embarrassed that the up-to-date schedule does not add up, although the correct figures are right and, secondly, to meet my learned friend's point. Those are the points I would invite you to have in mind.

MR PURCHAS QC: It does not take advanced mathematics to see that it is rather more than 75%.

MR COSGROVE: Yes.

MR ABRAHAMS: My Lord, I cannot accept that the appropriate order would be £7,821.68, principally, on the point you have made that it was not 75% of the figure that should have been in the schedule, even on the Applicant's figures.
More importantly, in my submission, these figures are simply not reasonable and I would ask you to compare the sums claimed with the schedule of costs prepared by the First Respondent for this hearing, as a schedule of costs of 26th July 2000. The First Respondent's costs come to a total of----

MR PURCHAS QC: Do I have a schedule?

MR ABRAHAMS: I am not sure. It is £2,995. Admittedly, that would not have included fees that were incurred today but, in my submission, it does give an idea of what a reasonable figure would have been.
If I can turn to the detail of the schedule, there are a number of matters which cause concern in my submission. I am working from the schedule prepared today because I believe that the figures themselves are correct, even though the addition is wrong.
If I could draw your attention to the "attendance on Applicant".

MR PURCHAS QC: What would help me is to take it in the order it is set out, because the Practice Direction does give guidance as to the order. Is there any point made on the hourly rates claimed?

MR ABRAHAMS: No, my Lord.

MR PURCHAS QC: It brings us to "attendance".

MR ABRAHAMS: In our submission, the 20 hours for attendances on the Applicant at £85 and the 29 hours are obviously two different----

MR PURCHAS QC: Where is the 29 hours, is that adding the 8.2 and 20.7?

MR ABRAHAMS: My Lord, yes. In our submission it is accepted that there does not seem to be any particular reason why attendances on the Applicant should have been so extensive.

MR PURCHAS QC: Do you have a figure which you say would be reasonable?

MR ABRAHAMS: My Lord, by comparison the attendances of instructing solicitors on our client is 1.7 hours. Obviously, that is not strictly comparable, but I would say ten hours would be reasonable, my Lord.
Moving down to the section "other work, not covered above". This is a small matter with a total of £142.50. It is not clear from the schedule what work that covers. Moving on to work done on documents.

MR PURCHAS QC: Just give me a moment.

MR ABRAHAMS: Again, the total figure is 13.7 hours. It is not clear to us why such extensive work on documents was required, although I note in our schedule we have 14.7 hours. Perhaps that is not my strongest point on this schedule.
Moving on to "attendance at hearing", five and a half hours compared to our schedule which shows two and a half hours. Again, my instructions are that the hearing did not take five and a half hours, this is an important matter. Then there is the expert fees over the next page, my Lord.

MR PURCHAS QC: Where do I find expert fees?

MR ABRAHAMS: Halfway down the second page, my Lord. It is in the box along side "Travel; process server".

MR PURCHAS QC: That is interesting. What has happened is, in faxing this through to the court, the second page has not been copied for the court. I have a copy of the fax sent yesterday. The first page of the relevant schedule, which you have just taken me through, I have, but the next page begins, and I cannot read the top line, but it is the page that has council's fees. Is there a page before that?

MR ABRAHAMS: No, it is under "other expenses".

MR PURCHAS QC: I now have "expert fees" yes, thank you.

MR ABRAHAMS: My Lord, you will see that expert fees are charged at £770 plus VAT. My instructions are that that represents an arboriculturist's fee. In my submission, that is not an appropriate item on the costs schedule simply because the matter for you is whether the Secretary of State's decision was lawful in light of the evidence before the Inspector, and it was not appropriate for additional expert evidence to be put in for the purposes of this appeal.
Also, there is some confusion, but in the italicised description of "fees", it says Travel: Process Server fees and photo expert's fees, I think that may be photocopying and expert's fees.

MR PURCHAS QC: Is there another item of photocopying?

MR ABRAHAMS: I think that probably explains it, although perhaps Mr Cosgrove----

MR PURCHAS QC: Can I make sure I have the point. What are you disputing?

MR ABRAHAMS: It is as to the nature of the photo expert's fees.

MR COSGROVE: I can probably help with that. It was not a photo expert. I think what must have happened there, in the description boxes, is that the word copying had been left out, it should say, "photocopying, expert's fees".

MR PURCHAS QC: They are the items in the box?

MR COSGROVE: Yes, my Lord.

MR PURCHAS QC: That seems a reasonable explanation, Mr Abrahams.

MR ABRAHAMS: Yes, my Lord.

MR PURCHAS QC: Any other point?

MR ABRAHAMS: We are also puzzled by the charges in respect of the process server. You will see in that same box, £212.60, which seems to be "travel", and then "fees" £403.50. We are not aware that there is any reason why the Applicant has had trouble serving documents which required the services of a process server.

MR PURCHAS QC: It was served on yourselves and, I suppose, on the Second Respondents.

MR ABRAHAMS: Those are my submissions.

MR PURCHAS QC: Thank you. Mr Cosgrove, can we just go through these items. Attendances first, a total of 28.9 hours.

MR COSGROVE: My Lord, that is not unreasonable, in my submission. The Respondent has had this since 27th July, my learned friend has not, but we have heard nothing by way of----

MR PURCHAS QC: When was it served?

MR COSGROVE: 27th July. Forgive me, the schedule I make my application on, but what was served yesterday is just adding on (pause). My Lord, they have had the body of the fees that we are going through since 27th July. Of course, I will do my best to answer any queries. I have taken instructions on some of the matters, but when one is talking about particular hours, it is difficult without the partner here to justify them. My Lord, that is not an unreasonable amount in a case such as this. The conference was with me, preparation for that, research done. Obviously, it is a point without----

MR PURCHAS QC: I just what to know what it includes. "Attendances on opponents" means discussion with the other respondents, presumably.

MR COSGROVE: Yes.

MR PURCHAS QC: "Attendance on others", does that include you or not?

MR COSGROVE: Is my Lord looking at the third box now?

MR PURCHAS QC: Yes. "Attendance on applicant", would that include attending, if there was, a conference with yourself?

MR COSGROVE: It would certainly include that, I say that because the conference was certainly more than two hours. So far as the attendance in the other box is concerned, it would not cover that. My Lord, obviously the partner was involved for eight hours, that is not unreasonable, and then the solicitor, Mr Gilks, who did the principal amount of work with a lesser hourly rate, he has done 20 hours work on a significant appeal which required substantial preparation, research and speaking to clients. That is not unreasonable in my submission.

MR PURCHAS QC: What I am trying to understand you see, if I read the expression "attendance on applicant", I read that as sitting down with the applicant and discussing the case.
A figure of 28.9 hours might seem a lot on a case that had a relatively narrow compass. It has items, "work done on documents" and he has items for "other work, not covered above".

MR COSGROVE: I do not think it can, I think it must mean applicant in a broader sense because, the work that would be done normally on a case like this does not appear to be covered anywhere else in the Schedule. For example, there are just two hours on others. "Documents" well, that it paperwork and so forth, and "attendance at hearing". There is no other, my Lord (pause).
My Lord, I am instructed also that "attendance on applicant" would include, telephone calls, letters and such like.

MR PURCHAS QC: I follow. You are writing a letter of advice.

MR COSGROVE: Indeed. I am afraid that is as helpful as I can be at this stage. My Lord, was the next point "work done on documents"?

MR PURCHAS QC: The second point was "other work, not covered above", it was not clear what that covered.

MR COSGROVE: My Lord, I am instructed that it is likely to be matters such as research into the law and those kinds of matters. I know I was provided with some helpful research from those instructing me.

MR PURCHAS QC: Yes, thank you.

MR COSGROVE: My Lord, I think the next point is, "work done on documents".

MR PURCHAS QC: Yes. I think Mr Abrahams was not over enthusiastic on that, I do not think I need trouble you on that. You tell me it was actual work done on documents.

MR COSGROVE: Yes. So far as "attendance at hearing", in the normal way that would not just cover, as it were, when the hearing begins and when it stops, but even if it did, it was certainly more than two and a half hours. The fact was that those instructing me were here for -- I think it was either a 10.30 or 11.00 a.m start. We started a bit later and that includes lunchtime, waiting at court and so forth.

MR PURCHAS QC: Does it include travelling?

MR COSGROVE: No, travelling is in a separate box, 1.4 hours.
We were here for the day.
My Lord, the next point my learned friend raises is in the box "other expenses". I think, principally, it is in relation to Mr Lawson's fee, the arboriculturist, I think that was the next point.

MR PURCHAS QC: Why do you need an arboriculturist?

MR COSGROVE: As your Lordship will recall from the history, by which I mean the correspondence, the site visits as to the certificate, and when the certificate was sent, he was effectively dealing with -- the solicitors were not involved at that stage. He had been instructed as the man on the ground who dealt with all the matters. He provided the statement for the purposes of the application, and it was important to have him at that conference, so that one could take instructions as to what actually happened, in particular, when was the certificate purported to be sent; what was said to him on the site visit which happened three days before the certificate, as it was dated when it eventually came, those kinds of matters. He was not giving advice as a tree expert for the purposes of this appeal in terms of arboricultural matters, but he was giving advice, as the man on the ground who had been dealing with the local authority and with the correspondence and so forth, having been instructed, he was giving instructions on that basis. So yes, he is described as an expert. He was an expert, but he was used in this case for the reasons my Lord has seen in the statement as to the background. Mr Bairds (?), as it were, has nothing to do with the background on a day-to-day basis, the arboriculturist was instructed and he wrote the letters, and liaised with the Local Planning Authority.

MR PURCHAS QC: They are matters of record. You have a decision letter and you have the documents.

MR COSGROVE: It was important to take instructions from him as to exactly what happened when one is talking about what the certificate means, what was said on the site visit, when was this said to him, what was his understanding and what was the local authority's understanding of what had gone on.

MR PURCHAS QC: There is nothing in this case that turns on matters beyond what is recorded in the correspondence, is there?

MR COSGROVE: No, my Lord, it was important to get the background, not just for general interest, but a lot of the correspondence is rather delphic. My Lord, will recall that the Secretary of State's decision letter at one stage referred to issuing the certificate at a later date, but one wanted to make clear in one's mind what the chronology was.

MR PURCHAS QC: Why do you need a process server?

MR COSGROVE: The process server, I am instructed, relates -- and to that extent we rely on it -- to the service on the local authority who refused to accept service by fax and, in those circumstances, those instructing me had to instruct a process server. To the extent that that relates to the First Respondent, I do not proceed to claim it from the Secretary of State.

MR PURCHAS QC: Yes, thank you. Is there anything else?

MR COSGROVE: I just make the general point that a comparison with the Secretary of State's fee is not necessarily helpful when one is looking at the Schedule of costs.

MR PURCHAS QC: Mr Abrahams, I come back to you. It is highly undesirable, that I am not in a position to make a summary assessment today, if I can on these matters. I am not disposed to allow the item for Mr Lawson of £770.
So far as the other items are concerned, if we just go through them. You now have an explanation for your second point, that the hours were spent in researching into the law and matters of that kind. You recall that explanation. "Documents", I do not think you were pursuing very strongly, for obvious reasons. "Attendance at hearing", my memory is that it did take most of the day, you were not here and it is difficult to go behind that, I would have thought.
As to the process server, I think you envisaged and I hear what you said, that service by fax was refused and therefore it was necessary to get someone to go and serve it on the authority, so that was explained.
That leaves essentially this item of the hours.

MR ABRAHAMS: On the process server, if it was a matter between the Applicant and the Second Respondent, I am not sure that that is something that reasonably the First Respondent should be asked to pay.

MR PURCHAS QC: The order I have already made is that you pay 75% of the costs incurred by this Applicant, and part of his costs are going to have to be serving the relevant parties. Therefore, at this stage, I am concerned with what is reasonable and I am going to make a summary assessment.
That leaves us with this question of the 28.9 hours. I have very much in mind that this is an item that was included in the original schedule which was provided to you back in July. It includes, I do not know if you are able to help me on that? Indeed, I can see it is, because it is on the original Schedule. As I understand it, today is the first time the Respondents raised it. I would be reluctant to leave costs to be assessed on that basis. Would you wish to persuade me further if I disallowed Mr Lawson's fees and assessed it in the sum of the schedule?

MR ABRAHAMS: No, my Lord, I would not object to that.

MR PURCHAS QC: I am going to leave it to you to do the necessary maths, because I imagine it will not be as straightforward as they might seem to be.

MR COSGROVE: My Lord, I am grateful. It is just simply deducting Mr Lawson's fees from the original schedule.

MR PURCHAS QC: Yes, that may have implications.

MR COSGROVE: We will work on that basis.

MR PURCHAS QC: If that is acceptable, I will make an order assessing the costs in the schedule you have provided which totals £10,062.94, but to be reduced by the deduction of the item of £770 and any consequential amendments that have to be made thereon. Is that sufficiently clear for the parties?

MR ABRAHAMS: Also the reduction of 75%.

MR PURCHAS QC: That is an order I have already made. Are there any further applications?

MR ABRAHAMS: Yes, my Lord. The First Respondent seeks permission to appeal this matter on the basis that it is strongly arguable that the letter sent by the local authority, giving refusal for the consent of the felling of the tree and indicating that a certificate under Article 5 had been attached and should have been attached, was in fact a certificate for the purposes of the act.

MR PURCHAS QC: What is meant by "certified" under the order?

MR ABRAHAMS: We would say that where the documents did show a decision to certify, there is a written document to that effect and that is certification.

MR PURCHAS QC: You make the point that, although there is now the 1999 regulations, there are a wealth of other preservation orders which have been made under the previous regulations.

MR ABRAHAMS: Absolutely, my Lord.

MR PURCHAS QC: I do not need to trouble you further on this point. Is there anything you wish to say, Mr Cosgrove?

MR COSGROVE: My Lord, no. In our respectful submission, that argument, which is essentially the argument put before the substantive hearing, does not have a reasonable prospect of success. As a matter of law, there is no other compelling reason why further court time should be wasted on that point.

MR PURCHAS QC: What about (b), the point of general importance?

MR COSGROVE: My Lord, it has been heard by the High Court, by my Lord and fully argued for a day. In our submission, because it has been so erred, it is not of such importance that it should go any further. It is not as though it is a lesser court dealing with it on an ad hoc basis, there has been thorough argument, and my Lord has given a thorough judgment. In those circumstances, that should be the end of the matter.

MR PURCHAS QC: I am minded to give permission in this matter. My reason is that although my views on the matter are set out clearly in my judgment, and I have no reservation in that respect, this is a matter of general importance and, therefore, appropriate for permission to be given for appeal. Are there any other applications?
MR ABRAHAMS: My Lord, no.

MR PURCHAS QC: In that case, the application will be allowed. There will be an order for the costs of the claimant to be paid by the First Respondent as to 75% of the amount assessed, which I assess in the sum of £10,062.94 subject to the deduction of £770 on account of the expert Mr Lawson's fees and any consequential deduction that has to be made as a result.
I give permission to appeal in this matter for the reasons that I have stated. I hope that covers everything. Can I ask that the parties take the same course that I suggested in the last matter, that if there are typographical or other errors on the unrevised judgment, I would be extremely grateful if you would send a note to my Chambers. I have noticed a number of them myself.

MR COSGROVE: Thank you, my Lord.