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
		12th June 2006

1. MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act) for an order quashing the Horsham District Council Llydwicke Farm (Llydwicke Farm Cottages, Hayes Lane Slinfold) Tree Preservation Order 2005, TPO No 1264 ("the TPO") which was confirmed by the defendant on 6th September 2005. The claimant is the freehold owner of the land on which the trees are situated.

Planning History

2. Mr Walton, who appeared on behalf of the claimant, produced a helpful chronology of the relevant planning permissions. For present purposes it is unnecessary to rehearse all of the detail. In summary, the two cottages referred to in the title to the order above have been unoccupied for many years and are semi-derelict. To the north of the cottages are the eight oak trees which are the subject of the order. Planning permission for two replacement dwellings was first obtained in 1991. Planning permission from an alternative scheme for one replacement dwelling was first obtained in 1996. Over the intervening years there have been numerous renewals of planning permission, with the end result being that, in January 2005 there were two full planning permissions in force, one for two replacement dwellings (SF/45/OO) and one for one replacement dwelling (SF/19/01).
3. The Parish Council had objected to the grant of SF/45/00:

"Parish council has objected on the grounds that the replacement houses are too large and not in keeping with the area. Concern was expressed regarding the proximity of the oak trees and possible harm caused to them by the development."

4. Mr Jones, the council's arboricultural officer, was consulted. He visited the site on 11th January 2000 and prepared a report. In that report he did not recommend the making of a Tree Preservation Order.
5. On 25th January 2005 application was made to "renew" permission SF/45/00, which had not been implemented. Again the Parish Council made representations. This time it did not object to renewal, but said:

"We would like to see a tree preservation order on the mature Oak trees in the garden of No 4 particularly as they are fairly close to the dwelling and could be at risk if the house is ever built and occupied.

We note that this is the third time this application has come forward for permission without it being implemented on approval on the first two occasions."

6. Mr Jones was again consulted and he revisited the site on 10th March 2005. Having noted that the position of the proposed replacement buildings had not been altered, so that the minimum requirements of BS 5837 would be met, he said:

"2. However, as the trees have grown, and will continue to grow, I am concerned as to the possibility of future resident pressure upon the trees, in particular the perceived desire to heavily crown lift them on the southern side, to allow more light into the area to the immediate north of the building. Some minor trimming works will be required in any case to allow the construction of the building; however, I would suggest that this is subject to supervision by an officer of this Authority to ensure that the works are undertaken correctly (suggest condition based on TR4). However, I am not of the view that this is so serious a concern as to warrant refusal of consent for the proposal, especially as the problem can be mitigated against by use of suitable conditions."

He considered the use of protective fencing for the trees on the site, and turned to consideration of the construction method suggested for a proposed turning head:

"I am also concerned as to the construction method suggested for the turning head, and its proximity to trees T1 and T2. This area is right under the canopies of these trees, and accordingly I would suggest that it should be a condition of any approval that a geogrid surfaces is installed, in accordance with Arboricultural Practice Note 'Driveways Close to Trees'..."

He made further suggestions as to the use of conditions and concluded:

"Although I have minor concerns in regard to this development proposal as indicated above, I am of the view that they can be successfully addressed by the use of selected conditions, and do not warrant the refusal of consent (on arboricultural grounds). I can therefore give this proposal my cautious approval."

7. The Tree Preservation Order was made on 1st March 2005 by the responsible planning officer acting under delegated powers, after having discussed the matter with Mr Jones. A notice to the claimant explained that the defendant had made the order and because "the selected trees are healthy specimens of high amenity value. They are assessed to be under threat for development proposals." The notice stated that the claimant had the right to make objections or representations which would then be considered by the defendant when it decided whether or not the order should be confirmed.
8. On 20th April 2005 the claimant submitted a 14-page statement of objections with a number of annexures. These included a report from Mr Yarrow, an arboricultural consultant. In January 2005 the claimant had also begun to submit details for approval pursuant to the conditions which had been imposed on the permission for one replacement dwelling (SF/19/01). The process of obtaining the necessary approvals took some time and it was not until January 2006 that the claimant's architect submitted a revised drawing indicating that (with the one replacement dwelling scheme) there would be "no works to existing trees" (the covering letter is erroneously dated 25th January 2005, but given the internal references in the letter it is clearly 25th January 2006).

The Planning Officer's Report

9. At their meeting on 6th September 2005 the Development Control Committee had before them a report written by Mr Jones, but signed off by the defendants' Head of Development. The report described the site and in the summary of the planning history, said:

"1.4 During the process of the determination of application SF/45/00, the line of trees was assessed for its suitability for protection by Tree Preservation Order by the then Arboricultural Officer. Although it was assessed the trees 'represented an important countryside amenity (which) should be retained', it was also assessed that the proposed dwellings could be accommodated on the plot without causing undue damage to the trees. Accordingly, no Tree Preservation Order was served.

1.5 As part of the determination of the most recent application (DC/05/O215) the trees were inspected again, and a different view was formed of the long term potential threat to the trees which the granting of planning permission for the two dwellings may result in. Accordingly it was resolved on the 15th March 2005 to make a new Tree Preservation Order (TPO) to provide the trees with formal protection. The statutory consultation period for the receipt of representations in regard to this Order expired on the 17th April 2005, enabling it to be confirmed."

10. Under the heading "PUBLIC CONSULTATIONS" the report said this:

"3.2. A Statement of Objections has been received from the owner of Lydwicke Farm Cottages, and the land on which the trees are growing. A full copy of this statement is available to members of the Committee. The key points of the statement may be summarised thus:

. That there are procedural deficiencies in the Order undermining its validity;

. That the trees selected for inclusion in the Order are incorrectly plotted on the map attached to the Order.

. That the process used in the Council's determination of whether to confirm the Order conflicts with the provisions of Article 6(1) of the European Convention on Human Rights ('ECHR').

. That the order being made at this time is inconsistent with the previous resolution of the Council not to protect the trees when this matter was given due consideration in 2000, and that there has been no material change of circumstances in the matter since that time;

. The making of the Order is unnecessary;

. That the reasons given for the making of the Order is inaccurate.

. That it is incorrect to say either that the trees are healthy specimens of hight amenity value, or that they are assessed to be under threat from development proposal;

. That the assertion that the trees are under threat for development proposals is irrational and unfair.

The Statement is supported by a report compiled by Broad Oak Tree consultants Limited, dated 12th April, 2005 (see annex 4 of Statement)."

11. Under the heading "PLANNING ASSESSMENT", the report said.

"6.1. The trees in question are a group of oak trees semi mature in age and size. They have not been managed in recent years and although individually varying in quality, are collectively in good order and condition. Although at the end of the track leading to open countryside, the trees are collectively of visual amenity merit, being visible from the closest occupied properties up the lane; from Upper Lydwicke Farm; and from the various public footpaths which cross the open countryside to the north. This evaluation has been undertaken in a structured way, by careful analysis of the size, form, health and visual collective impact of the trees and their degree of harmony in, and suitability to, the local surroundings. The assessment of 'high' amenity value reflects these issues when compared in a consistent manner against other large trees in the District. The responsibility to protect trees of high amenity value, where it is assessed to be in the public benefit, is laid down within Policies EDC 22 and EDC 28 of the Horsham District Local Plan.

6.2 It is acknowledged that there were some minor procedural inaccuracies in the making of the Order, principally concerning dates of notification and the Council's failure to remove brackets and to include certain paragraphs which were not relevant to the Order. However, the Council's Secretary and Solicitors has advised that these errors are minor, and have neither the objector, nor adversely affected the validity of the Order.

6.3 It is accepted that the trees protected by the Order may not be positioned on the map reflecting their exact positions on the ground. However, the publication Tree Preservation Orders - A guide to the Law and Good Practice (DETR, March 2000) makes it clear that there is no requirement on the Regulations to describe the trees and plot them on the map with pinpoint accuracy. Your Arboricultural Officer is of the view the trees are suitably marked on plans with sufficient accuracy that they cannot be mistaken.

6.4 The matter of the determination of the suitability of a Tree Preservation Order for confirmation is rightly undertaken by the Local Planning Authority in accordance with the provisions of regulation 5(1) of the Town & Country Planning (Trees) Regulations 1999. It is not accepted that to fulfil this statutory function is contrary to the Human Rights Act 1998. The objector retains the right of appeal to the Secretary of State in the event that any subsequent application to fell or undertake surgery works to live parts of the trees protected by the Order is refused. The Council's Secretary and Solicitor has confirmed that the Courts have held that such a procedure permits the objectors/appellant to have access to an independent and impartial tribunal therefore satisfying the requirements of Articles 6(1) of the Act.

6.5 It is not accepted that there has been no material change in circumstances at the site since the previous arboricultural inspection on the 11th July 2000; clearly the trees have grown in the intervening five years. Similarly, there has been a change in the perception of what factors result in large trees close to development sites becoming under threat. Previously it was accepted that as long as a proposed dwelling could physically be erected with minimal direct impact to nearby trees, this would be satisfactory. However, this has proved inadequate in recent times, and has resulted in inappropriate tree loss and a consequent loss of amenity. It is now clear that such trees can come under threat merely on account of the perception of proximity to the dwelling in the mind of the future resident. Action required to resist this is confirmed by the advice at paragraph 5.11(ii) of the publication Tree Preservation Orders - A guide to the Law and Good Practice (DETR, March 2000), which stresses the need to avoid layouts where trees cause unreasonable inconvenience, leading inevitably to requests to fell, anticipates that conflict with trees may arise, and aims to prevent it. In this case, it is clear that the proposed dwellings, when completed, will be in close proximity to the crowns of the trees in question, and indeed that surgery works will be required to physically erect them. When completed, the northern garden to the new dwellings will be affected by the trees. This could be eased by prudent selective surgery, but could, in your Officers view, lead to pressure to injudiciously heavily prune, or even remove, the trees. This would result in an inappropriate loss of amenity to the locality. The strength of feeling contained within the Statement of Objection to the confirming of the Order serves to confirm this fear and demonstrates the need for the Order.

6.6 It is not accepted that the confirming of this Order is in any way irrational or unfair, given the reasons outlined above. The Council has a duty to protect trees considered to be of high amenity value, where it is assessed to be in the public benefit, as stated within Policies EDC 22 and EDC 28 of Horsham District Council Local Plan."

The report recommended that the order should be confirmed and members accepted that recommendation after a brief discussion.

12. The claimant was offered an opportunity to address the committee in accordance with the council's normal procedures, but she declined. She did, however, submit a 6-page written response to the officer's report.
13. The agenda for the meeting, including the report was made available on 26th August and on 31st August the full copy of the claimant's statement of objection was made available in the members room. The claimant's response to the report was sent to (inter alia) all the members of the committee.

Grounds of challenge

14. Mr Walton advanced three grounds of challenge:

1. The council failed in its duty to consider the claimant's objections to the order before deciding whether to confirm the order.

2. The council took into account an irrelevant consideration in deciding to confirm the order namely the fact that the claimant had strongly objected to the order.

3. The council took into account an irrelevant consideration, namely its conclusion the trees were under threat from development proposals. I will deal with each of these grounds in turn.

Ground 1.

15. Mr Walton referred to Regulation 5(1) of the Town and Country Planning (Trees) Regulations 1999, ("the Regulations"), which 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 common ground that in order to comply with this requirement the committee had to grapple with the substance of the representations made by the claimant. In his skeleton argument Mr Walton placed considerable emphasise upon the decision of the Federal Court of Australia in Norvill v Chapman (1995) 133 ALR 226. In that case the Federal Court had to consider the obligations of the Minister for Aboriginal and Torres Strait Island Affairs under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to consider a report "and any representations attached to the report." On one reading of Mr Walton's skeleton argument it appeared to be suggested on behalf of the claimant that it was insufficient that her objections had been summarised in the officer's report and that each member of the Committee should have (but did not) read and considered the claimants letter of objection for themselves. Although the skeleton argument contained extensive citations from the judgments in the Norvill case, it is important to recognise that those judgments were given in response to a very different statutory context (where there was a personal non delegable obligation placed upon the Minister) and in response to a very different set of factual circumstances (where the Minister had given no personal consideration whatsoever, to the 400 representations that had been attached to the report but had merely discussed them briefly with one of his advisers.) Even in such a statutory context, where Parliament had expressly provided for "decision-making at the highest level" Black CJ said that he "would not rule out the possibility of some representations being quite capable of effective summary" (see page 240). Buchett J distinguished another case in which it had been conceded that the Minister did not have "to read for himself all the relevant papers", but could "rely on the summary of the relevant facts furnished by the officers of his department", provided that such a summary brought to the Minister's attention all material facts "which [could] not be dismissed as insufficient or insubstantial". He did so upon the basis that those observations were made in the context of legislation which had expressly empowered the Minister to delegate his functions (see page 252).

16. By contrast with the statutory scheme in the Norvill case, the defendant may delegate, if it chooses to do so, most if not all of its planning functions including the power to make and confirm the Tree Preservation Orders to a committee, sub-committee or an officer (see section 101 of the Local Government Act 1972). The obligation to consider objections or representations before taking a decision is not peculiar to the confirmation of Tree Preservation Orders, it is to be found throughout the planning code (see for example, section 71 of the Act and Articles 6, 8, 10 and 19 of the Town and Country (General Development Procedure Order) 1995 as amended.
17. Mr Walton readily accepted that Norvill was distinguishable on these grounds and that a planning committee considering whether or not to confirm a tree preservation order could lawfully do so upon the basis of a report which summarised the representations or objections made pursuant to the Regulations. It follows that the only question under ground 1 is whether the report fairly summarised and then grappled with the points of substance in the objections made by the claimant. I emphasise "the points of substance", because the report was not required to grapple with each and every point, however "insignificant or insubstantial".
18. Mr Walton fairly accepted that the bullet point summary in paragraph 3.2 of the report did accurately summarise the points that had been made in the claimant's objections. However, he submitted that the response was inadequate because the report did not grapple with the procedural objections that had been raised. The procedural objections were not set out and then answered seriatim. In my judgment the report did sufficiently engage with the procedural objections in paragraphs 6.2 and 6.3 (see above).
19. In dealing with these issues the members were entitled to rely upon the advice of the council's Secretary and solicitor. If that advice was wrong as a matter of law, then it might found a ground for challenge under section 288. But it is not without significance that Mr Walton did not seek to challenge the correctness of the advice given by the council's Secretary and solicitor that the various procedural points that had been raised in the objection "have neither prejudiced the objector, nor adversely affected the validity of the order." Nor did he challenge the correctness of the advice that "the trees are suitably marked on the plans with sufficient accuracy that they cannot be mistaken." The complaint was not that the advice given was incorrect but that the full text of the objection was not set out. But as I have said, the obligation was to engage with points of substance, not with points that had no substance whatsoever in legal terms.

The same observations can be made in respect of the procedural points made in the claimant's objection. In summary it had been contended, at some length, that the process was not Convention compliant. That contention was answered, in my judgment entirely correctly, in paragraph 6.4 of the report. Mr Walton did not submit that the procedure when considered overall was not Convention compliant. It is plain that the process is compliant with the Convention: see for example R (Brennan) v Bromsgrove District Council [2003] EWCA High Court 752, Admin [2003] 2 P & CR 33). Given that it is no longer submitted that there is any breach of a Convention requirement it is unnecessary to dwell further on the matter, just as it was unnecessary for the report to dwell on the matter in any greater detail.

I turn therefore to the substantive criticisms of the report. They mainly centred upon the failure of the report to mention SF/19/01: the one replacement dwelling permission for which details began to be submitted in January 2005. Mr Jones explains in a witness statement that he did not refer to the one dwelling replacement scheme because he had not been made aware of it. It is perhaps not surprising that he had not been made aware of it because it does not appear that there was any representation or objection on arboricultural grounds to that proposal from the Parish Council.

On the material before the court the failure to mention the one replacement dwelling proposal was of no consequence whatsoever. The claimant had not finally decided as between the two dwelling or the one dwelling replacement scheme in September 2005. Both schemes have been kept alive for many years and both were still alive as at 13th September 2005. It was the two dwelling replacement scheme which had caused concern to the Parish Council and to which Mr Jones had been asked to respond. In that context the one dwelling replacement scheme was simply irrelevant. I accept that it would have been highly relevant if the claimant had said in terms, because of the concern expressed by the Parish Council about the implications for the trees of the two replacement dwelling proposal, "I do not intend to pursue that scheme and will instead pursue the one dwelling replacement scheme, which will have no impact upon the trees." But for whatever reason the claimant did not do so.

The only reference to SF/19/01 in the statement of objections was under the heading "inadequacy of reasons":

"Tree Preservation Order No 1264 was made in the context of Planning Application DC/05/O215 subsequently granted 23.03.05 and against the background of subsisting Planning Permissions SF/45/00/00 (10.07.00), SF/19/01 (09.04.01) and SF/1/03 (24.02.03). It was therefore made in circumstances covered by Section 197 of the 1990 Act. Under section 197(b) the making of a Tree Preservation Order is specifically subject to a requirement that it should appear 'to be necessary in connection with such permission'".

Since that was the sole reference to SF/1901, it is hardly surprising that it was not dealt with in the report.

20. In so far as other criticisms are made of the manner in which the report engaged with the merits of the case, in my judgment, these have no force, bearing in mind the content of paragraphs 6.1, 6.5 and 6.6 of the report which I have set out above.
21. I turn therefore to the remaining two grounds, which it is convenient to deal with together. Although it was submitted that the council took into account an irrelevant consideration, namely its conclusion that the trees were under threat from development proposals, it is not submitted that if the council was entitled to form the conclusion that the trees were under threat from development proposals that such a conclusion would be an irrelevant consideration. The challenge is rather to the conclusion itself: namely that the trees were under threat from development proposals, and it is submitted that there was no proper evidential basis for that conclusion. In the light of the reasoning in paragraph 6.5 of the report I am unable to accept that submission. I have set out the full text of the paragraph above. In brief it explains how a previous approaches to the protection of large trees which were close to development sites had proved inadequate, referred to guidance in Tree Preservation Orders a Guide to the Law and Good Practice, and continued:

"In this case it is clear that the proposed dwelling when completed in close proximity to the crowns of the trees in question and indeed that surgery works would be required to physically erect them when completed the northern garden will be affected by the trees, this could be eased by prudent selective surgery but could in the officer's view lead to pressure to injudicially prove or even remove the trees. This would result in an inappropriate loss of amenity to locality."

Pausing there, it is difficult to see how there could be any sensible criticism of this reasoning. The defendant was not concerned that the building works themselves would threaten the trees, although some surgery works would be required to physically erect the replacement dwellings, it was concerned that the close proximity of the new dwellings to the trees might lead to pressure for injudicious heavy pruning or even removal. That was a view which, on any basis, was reasonably open to the defendant.

22. Turning to the criticisms in ground 2, that the defendant took into account and irrelevant consideration, namely the fact that the claimant had strongly objected to the order, it was submitted that in so doing the council had made an error which was directly comparable to the error that had led to the quashing of the Tree Preservation Order which was challenged in R v (On the application of Gilman) v Ruckland County Council [2005] JPL 970. That was a case which turned very much upon its own facts, namely the precise terms of the officer's report. It is interesting to note that on the broader issues raised in that case, Collins J concluded that the TPO system as a whole was clearly Convention compliant. In that case the officer's report wrongly gave the impression that if the order was not made then the trees would be felled in order to make way for the proposed redevelopment of the site, when there was no such proposal and on the evidence no such intention. As can be seen from paragraph 6.5 of the officer's report the primary basis for the defendant's concern in the present case was the close proximity of the trees to the replacement dwellings. The strength of feeling contained within the statement of objection merely served to confirm that preexisting fear. Was that an unreasonable approach on the facts of this case? It will be recalled that there was a 14-page statement of objections with a number of annexures objections. Those objections raised a farrago of procedural and other criticisms which the council's secretary and solicitor rightly advised were of no consequence in legal terms. But the one thing they did not do was to give any reassurance that if a Tree Preservation Order was not made, then the trees would be safe, because there was no intention of felling them. What was being argued was that the order was unnecessary because if one looked at the earlier decisions made by the defendant to grant planning permissions and renew them without imposing a Tree Reservation Order, there had been no material change of circumstances. That was the argument which was being addressed in the report and that that is why paragraph 6.5 begins by explaining why it was not accepted that there was no material change in circumstances. The principal point being made was that earlier attitudes towards large trees close to development sites had proved to be inadequate. It will also be recalled that the claimant had taken the opportunity to put in a written response to the officer's report. Thus, there was another opportunity for her to say, in terms: "You need not have any fear. There is no wish/intention to fell any of these trees because...." But that was not done. It is unnecessary to rehearse the detail of the response but the tenor mirrors that of the original objection. In short, there is a great deal of argument, but for whatever reason absolutely no reassurance was being offered to the defendant.
23. Absent any explanation as to why the claimant was opposing the confirmation of the order so vigorously, the claimant cannot complain if her attitude in lengthy and argumentative representations failed to say the two things that might have been of consequence, namely, that there was no intention to implement the two dwelling replacement scheme, the intention now was to implement the one dwelling replacement scheme, and that under that scheme there would be no impact on the trees and there was no intention to affect them in any way.
24. For whatever reason the claimant did not choose to make this clear. In these circumstances the defendant was entitled to form the view that is set out in the final sentence of paragraph 6.5. That is not to say that in every case the mere fact that there is an objection will add weight to the perceived need to make a tree preservation order, it is simply a conclusion that on the facts of this case, bearing in mind the content and tenor of these objections, the final sentence in paragraph 6.5 was not an unreasonable response on the part of the defendant.
25. For all of these reasons, I am satisfied that there is no force in any of the criticisms of the report and it follows that the challenge must be dismissed.
26. MR COSGROVE: There is an application for costs. May I pass up to you a schedule. I do not understand there to be any objection to the principle or to the amount. I would like you to make a summary assessment in those terms.
27. MR JUSTICE SULLIVAN: Is that right, Mr Walton?
28. MR WALTON: It is.
29. MR JUSTICE SULLIVAN: The formal order is that the application is dismissed. The claimant is to pay the defendant's costs. Those costs are to be summarily assessed and I will assess them in the sum claimed which is a grand total including VAT of £8,146.25p.