England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		22nd March 2005

1. MR JUSTICE RICHARDS: This is a challenge under section 288 of the Town and Country Planning Act 1990 to the making and confirmation of a tree preservation order by the defendant Council. The powers to make such an order are contained in sections 198, 201 and 203 of the 1990 Act. The procedural regulations are the Town and Country Planning (Trees) Regulations 1999.
2. The order in issue was made on 13th February 2004 in respect of a pine tree in the grounds of a property at 27 Penny Long Lane Derbyshire. The property forms part of the estate of the late Mr Smith, of which the claimant is the executor. The stated reasons for making the order were:

"The Council have made the order because the tree indicated in this order is proposed for protection in the interests of visual public amenity. The tree contributes materially to the community of the locality, playing an important part and providing a sense of scale, maturity and giving a green effect to the immediate vicinity."

The order was made by the defendant Council in the exercise of its powers under the 1990 Act. The Council directed that section 201 should apply, with the result that the order came into effect immediately but would lapse six months after it was made unless it was confirmed within that period.

3. By Regulations 3 to 5 the Council was required to invite and consider objections from interested parties prior to any confirmation of the order. It followed that course and the claimant submitted a detailed letter of objection dated 30th April 2004. In that letter, he submitted that there was no significant public amenity interest in the tree to justify the making of an order, and he addressed, in particular, the extent to which the tree could be seen from various locations around the property. He stated in terms in the introductory paragraph:

"It is imperative that this letter be read by Committee members with the colour photograph ... (attached appendix 3) and specifically not black and white copies of the photograph."

The photograph in question was an aerial photograph showing the property, including the tree that was subject to the order, together with the immediately adjoining properties. It had a number of annotations to it, in particular highlighting the tree itself. The text accompanying the photograph stated:

"This photograph of the whole property, 27 Penny Long Lane and immediate neighbours, demonstrates that the tree in question, the full canopy of which is outlined in white, does not have the prominence and public amenity attributed to it by the LPA. The TPO tree is substantially hidden from Broadway (top of picture) by the avenue trees in Broadway itself and the dense trees in the garden of number 27. From Penny Long Lane (bottom of picture) it is demonstrated that the canopy of the TPO tree is significantly obscured for the most part by other trees ..."

4. The claimant had provided the Council's planning department with 20 copies of the colour photograph. He had reached an agreement or understanding with the officials that the colour copies would be made available to members of the relevant committee.
5. On 1st July 2004 the Planning Control Committee met to consider confirmation of the order. It had before it an officer's report which attached the claimant's letter of objection and commented on the various matters raised in it. The report stated in terms that the claimant had requested that the colour photograph he had provided be considered by members, and the commentary referred to that photograph. Most unfortunately, owing to an administrative error, the colour photograph was not sent to members of the Committee or otherwise made available to them. What was sent with the officer's report was a black and white copy of poor quality. If the copy in the file before me is anything to go by, it was of very poor quality indeed. Moreover, it would seem that the accompanying text which I have quoted was also omitted. At the meeting on 1st July, none of the members or officers raised the point, and a decision was reached without looking at the colour photograph.
6. The officer's report that was before the Committee, in commenting on the claimant's argument that there was no significant public amenity interest in the tree, stated, amongst other things:

"The tree protected by this order is an attractive specimen of an unusual species not usually planted in Derby. The tree's form, texture of the foliage, and distinctive shape and cones all contribute to the amenity that the tree provides and on site, makes it visually prominent despite the fact that there are other trees locally. The photograph attached to the objection, in my opinion, does not show an accurate representation of the amenity that the tree provides. This is due to the fact that the photograph was taken from a raised perspective. Whilst the photograph does show the extent of tree cover in the vicinity at present, it does not show how the tree would normally be seen by a member of the public and how the tree contributes to the public visual amenities of the vicinity."

The report went on to state that the amenity value of the tree had been assessed on the basis of informed judgments by experienced Council officers, taking into account government guidance. It was stressed that the perceived amenity value was when the tree was viewed from the public highway, from Penny Long Lane to the north, not as it was viewed by Broadway to the south or from neighbouring properties.

7. The report drew attention to the claimant's request that if the Committee were otherwise minded to confirm the order, it should delay this issue until a site visit could be arranged. The report stated that this was a matter for members, but recommended immediate confirmation of the order and pointed out that in the absence of confirmation the order would expire in August.
8. The Committee resolved to confirm the order as recommended. The formal confirmation, pursuant to the Committee's resolution, was dated 14th July 2004. Notice of it was served on the claimant by letter of the same date.
9. On 21st July the claimant sent a letter complaining that the Council had failed to give consideration to his letter of objection, in particular because his colour photograph had not been provided to the members of the Committee. He threatened legal proceedings. He was informed by the Council's planning solicitor, Mr Teasdale, that although the failure to bring the colour photograph to the attention of the members was not necessarily sufficient to warrant a setting aside of the order, the matter would be placed before the Committee at its next meeting on 26th August with a further report and a copy of the colour photograph.
10. Mr Teasdale has stated in his witness statement that he felt that it would be just and appropriate for the issue of whether the tree was worthy of protection to be reconsidered by the Committee with the benefit of the photograph. This was one way of addressing the claimant's concerns. Another option, he says, would be to make a new order to cover the tree and invite the claimant to resubmit his objections whilst promoting the existing order.
11. In any event, a further officer's report was duly prepared, drawing attention to the claimant's original request that the colour photograph, which the claimant considered to be an important piece of evidence in support of his objection, should be made available to every member, and drawing attention to the omission of that photograph from the previous report. The further report continued:

"In order to rectify that omission, members are asked to review their decision as to whether the tree is worthy of continued protection, having regard to the photograph and text as well as the previous information provided. The photograph with the text will be on display at the meeting and members are requested to have due regard to it. For ease of reference, I reproduce the text below although it must be read having regard to the colour photograph to be displayed at Committee . . . "

The report stated specifically that if the Committee decided that the tree did not warrant a tree preservation order they should revoke the order, but if they considered that the order was still justified then they should resolve to take no further action. The only comments made in the report concerning the photograph itself were by way of repetition of the comments in the original report, to the effect that the photograph was taken from a raised perspective and did not give a true representation of the amenity that the tree provided to the public. Whilst the photograph did show the extent of tree cover in the vicinity, it did not show how a member of the public would normally see the tree.

12. At the further meeting of the Committee on 26th August, steps were taken to ensure that the colour copy of the photograph, as provided by the claimant, was seen by all the members present. What had, in fact, happened was that the colour copies originally provided by the claimant had been returned to him. He then refused to send them back because he wanted them as evidence in legal proceedings. Discussions took place about the provision of further copies, but the Council was unwilling to meet the cost of such further copies, modest though that sum was. The claimant did release one file copy, together with a digital file of the photograph to enable the Council to make copies from that if it so chose. It appears in the event that no further copies were made. Certainly no copies were circulated in advance of the meeting on 26th August.
13. At the meeting itself, according to the claimant's witness statement, he saw the colour photograph mounted on a display board at the rear of the top table. A short time before the meeting he saw three persons whom he believed to be members of the Committee spend approximately 30 seconds looking at the photograph. The photograph was taken down by Mr Teasdale and handed to Committee members at the rear of the chamber. He appeared to stipulate that the photograph should be passed between the members. The claimant subsequently saw a number of the members give the photograph what he describes as a cursory glance.
14. Having looked at the photograph in this way, and having considered the matter, the members of the Committee resolved to confirm the earlier decision on 1st July, thereby leaving the order in place. By this date the claimant had already lodged his claim form in order to meet the six week time limit. It was originally lodged in the Nottingham District Registry of the High Court, but was subsequently transferred to this court where the proceedings should properly have been begun.
15. So much for the recitation of the factual background. I turn to the issues, of which there are two. The first concerns the failure to circulate the colour photograph at the time of the original decision to confirm the order. There are, as it seems to me, two aspects to the submissions made by the claimant; submissions made by him in person and presented to the court very clearly and sensibly. The first aspect is that Regulation 5(1) of the 1999 Regulations provides that:

"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."

It is submitted that the Committee could not consider the claimant's objections properly without looking at the colour photograph. The letter of objection itself had made that clear. Moreover, the fact that nobody picked up the absence of the colour photograph in itself shows that the members did not address their minds to the letter of objection. Therefore, it is said, there was a breach of the requirement to consider the objection.

16. The second aspect of the submission is that in a matter of this sort procedural fairness requires the application of the highest standards to treatment of the evidence. An objector has only one opportunity to put his case. There was a high degree of responsibility on the Council to ensure that the claimant's representations were presented to the members exactly as intended, and indeed as agreed between the claimant and the Council officials.
17. It is said that the Council's failures caused substantial prejudice to the claimant in that there was a possibility that if the members had had the colour photograph before them when they first considered the matter, they might have reached a different decision and in that case the order would have expired at the end of the six month period -- that is on 13th August -- and the claimant would have been able to have the tree felled, thereby clearing the way for a proposed development that lies behind all of this. The claimant submits that the court should now turn the clock back to 13th August 2004, when the order would have expired, and should quash the order so as to produce the same situation now.
18. I am inclined to accept that there was a relevant procedural failure here, given the importance that the claimant attached to consideration of the colour photograph as an integral part of his representations, and the fact that specific arrangements had been made and agreed for the purpose of making these colour photographs available to members. It matters not whether the failure is analysed as a failure to consider the objection or as a breach of the requirement of procedural fairness.
19. What I do not accept, however, is the claimant's submission that such a failure caused him substantial prejudice. To my mind the colour photograph does no more than illustrate more clearly the point that was made about it in the original officer's report, namely that it is an aerial photograph from a raised perspective, which does not show how the tree would appear from the public highway and therefore does not accurately represent the amenity value that the tree provides. Accordingly, even if the Committee had not met again to consider the matter in the light of the colour photograph, I would have been disinclined to treat the procedural failure as justifying the quashing of the decision.
20. In the event, of course the Committee did meet again and reconsidered the matter in the light of the colour photograph. The additional report prepared for that further consideration was perfectly fair and balanced. It was made clear to the members that they should review their decision in the light of the colour photograph, and that they had the option of revoking the order or of leaving it in place. The colour photograph itself was available to be looked at in the Committee room and was in fact looked at at the time of the consideration of the matter by members, albeit that the claimant says it was looked at only cursorily. No doubt it would have been better for the photograph to be circulated in advance, but the fact is that there was a proper opportunity for members to consider the colour photograph and it seems to me on the evidence that they availed themselves of that opportunity. There is no reason to consider that what occurred at the meeting of 26th August was anything other than a full and fair reconsideration, with the benefit of the colour photograph itself.
21. There are circumstances in which the court is cautious about the weight to be attached to a subsequent reconsideration by a decision-maker which leads to the confirmation of a flawed decision. I see no reason for such caution in this case. The fact that the Committee came to the same conclusion upon reconsideration fortifies me in my view that the omission of the colour photograph the first time round did not give rise to substantial prejudice. It is clear that the decision would have been exactly the same even if the photograph had been available to the Committee on that first occasion.
22. The alternative way of considering the point is in terms of the court's discretion. The Committee's further consideration of the matter can be seen as correcting the initial failure. It is true that the further decision was made after the expiry of the six month period for confirmation of the order, but in all the circumstances, having regard in particular to the fact that the Committee reached exactly the same view on reconsideration as had been reached at the original meeting, I would decline to exercise my discretion to quash the original decision confirming the order even if I thought that the claimant had got over the hurdle of showing that the original failure caused him substantial prejudice.
23. At the end of the day, the key point here is that the tree is one which the Council have decided does have sufficient amenity value to warrant protection. The reasonableness of that view is not the subject of challenge. I do not think that the procedural problem over the colour photograph is sufficient in the circumstances to justify the loss of protection for the tree, even if that loss would only be very temporary since it is always open to the Council to make another order and go through the process again, if it so chooses. I have little doubt that that is what would happen in this case were I to quash the decision under challenge.
24. I turn to the second issue which is a somewhat technical point relating to the making of the original order of 13th February 2004. The Council's constitution requires that its corporate seal be affixed in the presence of the Director of Corporate Services or some person authorised by him. There is an authorisation in existence which requires two witnessing signatures. In the present case, there were two signatories whose signatures appear on the order itself. They were both solicitors within the legal division of the Council and were both authorised for the purpose. Their signatures appear on the order next to the seal. The claimant's complaint, however, is that neither of them is able to give evidence that they did, in fact, witness the application of the seal on the particular order. One of the signatories, Mr Idowu, states this in his witness statement:

"To the best of my knowledge, my position remains that:

(1) I do not maintain a separate record of dates on which I have signed documentation on the defendant Council's behalf.

(2) I confirm that I signed the document dated 13th February 2004.

(3) I have no specific recollection of having signed the document, nor indeed of any of the other documents I signed on the day.

(4) I am unable to say with any certainty that I witnessed the affixing of the seal on the document.

(5) I can confirm that there have been occasions in the past when seals have been affixed without the presence of the signatories, although this is no longer the case."

It is apparent from the correspondence that Mr Idowu is speaking not only for himself but also for the second signatory, Miss Collins.

25. The claimant submits that it follows from what is said by Mr Idowu that, at the relevant time, authorised persons were in the habit of signing documents when they were not present at the time when the corporate seal was applied, and therefore when they were not properly witnessing signatories. If that had not been the case at the relevant time then it would be possible for Mr Idowu to say with absolute certainty, which he indicates he cannot say, that he did witness the affixing of the seal on the order of 13th February. Reference is made to certain exchanges by way of email in which Mr Idowu has indicated that internal procedures were tightened up so as to preclude the signing of documents otherwise than at the time when the seal was affixed, some approximately two to three months prior to August 2004 and therefore at some point after the making of the order of 13th February 2004.
26. The claimant submits that in all these circumstances, on the balance of probabilities, one or both of the witnessing signatories was not present. He goes so far as to suggest a lack of honesty on the part of the Council or its officers in relation to the evidence that is given to the court.
27. For my part, I am wholly unpersuaded that there was any failure to meet the requirements as to witnessing signatories. The order of 13th February 2004 is regular on its face. It bears both the seal and the signatures of two authorised persons. The presumption of regularity should apply. It seems to me that Mr Idowu's witness statement displayed a very proper degree of caution. He cannot recall the signing of the particular document and he is aware there were occasions in the past when seals had been fixed otherwise in the presence of the signatories. Accordingly he cannot, and quite properly does not, assert that the signing in the case of this particular document was done at the time of affixing the seal. Nevertheless, it seems to me that the witness statement is entirely consistent with the view that the requirements were complied with in this particular case. I see nothing in the evidence or the correspondence that can justify a contrary influence.
28. The claimant in his submissions has referred to the balance of probabilities. His problem is that the burden of proof is on him. The presumption of regularity applies, as I have said. The burden of proof has, in my judgment, not been discharged. I proceed, as I must, on the basis that the order of 13th February 2004 was properly made, that is to say that the relevant procedural requirements of the Council appeared to be met. The claimant's case on the second issue, as on the first, is therefore rejected. For the reasons I have given, this challenge must be dismissed.
29. Is there anything further?
30. MR MCNAMARA: Yes, my Lord. I seek an order that the claimant pay the defendant's costs in this matter. There is a statement. A summary assessment document has been prepared.
31. MR JUSTICE RICHARDS: Yes, I have seen that document.
32. MR MCNAMARA: Mr Aspdin had also generated a statement of costs on his own behalf which is not completely quantified. It makes reference to some disbursements and a total time estimate of 51 hours.
33. MR JUSTICE RICHARDS: Your total costs are in the sum of £3,237.38.
34. MR MCNAMARA: It is, my Lord, yes.
35. MR JUSTICE RICHARDS: You are asking for me to make an order summarily assessed in that sum?
36. MR MCNAMARA: My Lord, I am. I would also invite you to assess them on an indemnity basis, given this application was doomed to failure.
37. MR JUSTICE RICHARDS: Is this sum calculated on an indemnity basis or is it the same figure in respect of whichever basis is used?
38. MR MCNAMARA: Yes, it is. My submission, my Lord, is if there were to be a challenge, my submission is the principal is you should not be persuaded by the proposition that the concept of proportionality should apply. If you are with me in terms of indemnity costs in the first instance, you would be precluded from finding that effectively the figure was open to challenge. It does not make a difference to the calculation of the figure. I do seek the defendant's costs in the sum set out in the costs schedule.
39. MR JUSTICE RICHARDS: Thank you very much. Mr Aspdin, first of all is there any reason you should not be ordered to pay the Council's costs. You brought the case here, you lost. The normal rule is the loser does pay the costs. One looks to see whether there are any reasons why one should disapply that normal rule. It is a matter of discretion of the court. One looks at the way in which the case was conducted, one looks at whether the winning party has perhaps wasted the time of the court by pursuing issues which they had not succeeded on, matters of that sort. On the face of it, in this case, I cannot see any reason of that sort to depart from the normal rule.
40. MR ASPDIN: My Lord, I realise on the face of it that is the case. However, I brought this action in a situation where I had only a matter of days to make a decision because of this statutory six week limitation. Three weeks had already elapsed before I was told that the defendant did not produce the colour photograph, and on that day I wrote to the defendant the challenge process. Five weeks had elapsed before any substantial response was received. I was left with one week to seek legal advice and to issue proceedings. I was unable to find anyone in a position to offer coherent legal advice in such a small timescale. The fact that I started this action myself did not arise from some cavalier or irresponsible process, more from timing circumstances. As the case progressed, it became increasingly irrelevant not to continue the matter myself, there being little to be added by bringing advisors.
41. In my letter to Mr Teasdale of 21st July 2004 I sought to explore with him a process by which the six week timetable could be suspended and whilst we explored a resolution. However, I accept that his response on the 16th that it could not be extended was indeed correct. I ask for credit having made this initial effort to avoid litigation. As matters progressed, whilst not in any way acknowledging any weakness in my argument, in my letter of 30th November 2004 I made an open and unrestricted offer to the defendant to resolve the matter in one of three ways. The defendant rejected these out of hand by the letter of 1st December 2004, albeit it did make without prejudice proposals of its own which I am restricted from putting before the court. I have copies of my unrestricted letter before your Lordship.
42. MR JUSTICE RICHARDS: I cannot look at the correspondence at this stage. We are concerned now with the costs.
43. MR ASPDIN: My Lord, I actually have copies of their letter.
44. MR JUSTICE RICHARDS: Give me a copy of what you do want to show me.
45. MR ASPDIN: My own letter is dated 30th November. Their own letter simply said that they would not hold me responsible for costs if I withdrew my claim. My Lord, in view of these efforts to seek a resolution of this matter without a hearing, I would ask your Lordship for credit when considering the issue of costs.
46. One further point regarding costs. Because the solicitor work of the defendant has been done internally, which is no marginal costs, and because my own costs were inevitably modest as regards disbursements and not recoverable at professional solicitors rates for my time, the defendant was able to defend the action at all stages without any real regard to the costs of both parties, whether they win or lose. I think, my Lord, that is all I have to say. I ask for credit, having tried to keep this away from the court.
47. MR JUSTICE RICHARDS: Thank you very much.
48. MR MCNAMARA: Forgive me, my Lord, I do not know if you have all of the response.
49. MR JUSTICE RICHARDS: I do not think I need it. Had this claim been abandoned at an early stage, the court may have taken a different view about the question of costs but the position is that it has been pursued to the bitter end. The majority of costs in a matter of this sort have been incurred in the latter part of the proceedings in preparation for the hearing and in the actual conduct of the hearing. It seems to me the costs figure put forward by the defendant Council is a modest figure, perfectly reasonable and proportionate in a case of this sort. I take the view that there is no reason why I should depart from the normal rule where the claimant has lost on all grounds, and I order the claimant to pay the defendant Council's costs of the claim which I summarily assess in the sum of £3,237.38. I make clear that my understanding of that sum is that it is a sum that is calculated on and appropriate in relation to the standard basis and there is no reason why costs should be awarded on an indemnity basis in this case.
50. There is a question as to the period that I should allow for payment of those costs. How long do you ask?
51. MR ASPDIN: They can be paid, my Lord.
52. MR JUSTICE RICHARDS: I will give you 14 days. I should ask, Mr Aspdin, just to tie up any loose ends and make sure we do not all have to come back into court, do you wish to ask me for permission to appeal my decision? I think it is fair to indicate to you that the reasons I gave for deciding against you were, in my judgment, pretty strong reasons. But if you wanted to take it further, this is the moment where you can ask yourself whether you should be asking me for permission to appeal.
53. MR ASPDIN: My Lord, there was really nothing in what you said that I disagreed with except one point. That is, the reason that the colour photograph was in the pack was, for me, the main point and it seems some confusion has arisen that it did not illustrate the point that the tree was not prominent. I was not there to illustrate that point, it was for the Council. That is probably the only point I would appeal on but, frankly, the strain would be too great to appeal and I am not going to. Thank you.
54. MR JUSTICE RICHARDS: Very well. Thank you.