QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BRENNON||(CLAIMANT)|
|BROMSGROVE DISTRICT COUNCIL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR D GREAVES (instructed by Legal Department Bromsgrove District Council) appeared on behalf of the DEFENDANT
Crown Copyright ©
"The trees present a pleasant visual amenity on Rock Hill as a group. Although individually they would be generally insignificant, as a planted area their loss would significantly alter the visual aspect of the area. Thus the trees provide special amenity value and the [tree preservation order] is made in the interests of amenity."
" ..... would consent to allow our client to make representations out of time in respect of the second TPO and to do so to an independent and impartial tribunal constituted of members unconnected with the events surrounding the first TPO who therefore come to this dispute 'fresh' and without any preconceptions."
The council refused to extend time and rejected as impractical the suggestion that the decision should be taken by a differently constituted planning committee.
"Nevertheless [the claimant] accepted my view that the felling that had taken place left no room for doubt as to which two trees on the site are identified in the order."
"(1) If it appears to the 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.
(2) An order under sub-section (1) is in this Act referred to as a tree preservation order.
(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, cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees except with the consent of the local planning authority and enabling that authority to give their consent subject to conditions."
Section 198 (3) (c) and (4) have the effect of applying, in relation to applications for consent, the machinery of the 1990 Act applicable to planning applications. So that, for example, there is a right of appeal to an inspector appointed by the Secretary of State from a decision of the council refusing consent for work prohibited by the order.
"A tree preservation order shall not take effect until it is confirmed by the local planning authority and the local planning authority may confirm any such order either without modification or subject to such modifications as they consider expedient."
Although that sub-section provides that in the ordinary course an order does not take effect until confirmed, Section 201 deals with provisional orders:
"(1) If it appears to a local planning authority that a tree preservation order proposed to be made by the authority should take effect immediately without previous confirmation they may include in the order as made by them a direction that this section shall apply to the order.
(2) Notwithstanding Section 199 (1), an order which contains such direction -
(a) shall take effect provisionally on such date as may be specified in it; and
(b) will continue in force by virtue of this section until (1) the expiration of a period of six months beginning with the date on which the order was made, or (2) the date on which the order is confirmed whichever first occurs."
There is provision in Section 199 for the making of regulations with respect to the form of tree preservation orders and the procedure to be followed in connection with the making and confirmation of such orders. Amongst other matters, the power to make regulations includes a power to make provision that copies of the order, when confirmed by the authority, shall be served on such persons as may be specified in the regulations (see Section 199 (3) (c)).
"(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 a map referred to in paragraph 1 (c). Where a map is annexed to an order it shall be treated as part of the order.
(3) The map contained in, or annexed to, an order shall be prepared to a scale sufficient to give a clear indication of the position of the trees, groups of trees or woodlands to which the order relates."
"(1) As soon as practicable after making an order, and before confirming it, the authority which made it shall -
(a) serve on the persons interested in the land affected by the order (i) a copy of the order and (ii) a notice containing the particulars mentioned in paragraph 2, and
(b) make a copy of the order available for public inspection in accordance with paragraph (3).
(2) The particulars mentioned in this paragraph are -
(a) the reasons for making the order,
(b) a statement that objections or other representations with respect to any trees, groups of trees or woodlands specified in the order may be made to the authority in accordance with Regulation 4;
(c) the date, being at least 28 days after the date of the notice, by which any objection or representation must be received by the authority,
(d) a copy of Regulation 4, and
(e) where the order contains a direction under Section 201 (provisional tree preservation orders), a statement of the effect of that direction ... "
Regulation 4 deals with objections and representations. Regulation 5 concerns the procedure for confirmation of a tree preservation order and provides:
"(1) The authority shall not confirm an order which they have made unless they have first considered any objections and representations duly made in respect of it and not withdrawn.
(2) An authority may confirm an order with or without modification.
(3) Where an order is confirmed it shall be endorsed to that effect and the invoice should indicate -
(a) that the order was confirmed with modifications or without modification, as the case may be, and
(b) the date on which it was confirmed.
(4) Where an order is confirmed with modifications, the modifications should be indicated in the order by distinctive type or other means."
Of final relevance for present purposes is Regulation 6 which concerns action after confirmation of a tree preservation order and reads:
"As soon as practicable after confirming the order the authority which confirmed it shall -
(a) notify the persons interested in the land affected by the order (i) of the confirmation of the order, (ii) of the date on which the order was confirmed and (iii) of the time within which application may be made to the High Court under Section 284 ... and of the grounds on which such an application may be made,
(b) where the order was confirmed with modifications, send a copy of the order, as confirmed, to those persons, and
(c) make a copy of the order, as confirmed, available for public inspection in place of the copy made so available in the form of Regulation 3, but otherwise in accordance with paragraph 3 of that regulation."
"this order was confirmed by the district council of Bromsgrove on 10 June 2002 without modification."
It was signed by the district secretary. There is no equivalent endorsement to the schedule or map and it is said that they do not contain an appropriate title or date.
"The council's reasons for making the order are that the trees provide special amenity value and this order is made in the interests of amenity."
That statement of reasons is certainly brief but it does go beyond mere recitation of the statutory language. In any event, it was, in my judgment, an adequate statement. There can be no objection in principle to reflecting the statutory test in Section 198 ("expedient in the interests of amenity"). A view on the amenity value of these trees amounted to a planning judgment, which would probably be difficult to elaborate to any great extent. Such elaboration was, in any event, not necessary for these purposes. In particular, I reject the submission that it was necessary to give separate reasons in respect of each of the individual trees and the group of trees. The requirement is to state the reasons for making the order, not to give separate reasons for different parts of the schedule to the order.
"A claim that a survey has been perfunctory or inadequate, even if established, would not lead the court to the conclusion that the tree preservation order was invalid as a matter of law. The consequences of a perfunctory or inadequate survey may well be that trees will have been included in an order which should have been excluded, or vice versa. So far as the latter is concerned, it is difficult to see how the landowner could sensibly complain. So far as the former is concerned, that is precisely the kind of matter which can be raised, and indeed was raised, before the inspector at the public inquiry in May 2001. Alternatively, in the absence of a general power to appeal against a tree preservation order, the matter can be tested on the merits by making an application for consent to fell those trees which are said to have been wrongly included in the order in consequence of the survey being inadequate. If the council refuses such an application for consent to fell, then an appeal can be made to the Secretary of State and the matter can be examined by an independent inspector."
At paragraph 33 of the same judgment Mr Justice Sullivan said:
"In the present case both of the plans - that showing the woodland areas and that showing the area A1 - were to scale of 1:2500. But in my judgment the plan was perfectly adequate to specify the trees that were covered by this order. It is perfectly true that the plan appears to show a pecked line rather than a dotted line but Regulation 2 does not require slavish adherence to this final form. A form substantially to the same effect is permissible. The difference between a pecked and a dotted line is of no consequence whatsoever in the context of the present case. Looking at the plan, there can be no doubt whatsoever as to the extent of area A1. Indeed it was not submitted that there was any doubt about that matter."
"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."
"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 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."
That general statement of principle applies equally here notwithstanding the additional arguments advanced by Mr de Mello under the Convention.