QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF EDWARD POOLE||Claimant|
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT|
|(2) CANNOCK CHASE DISTRICT COUNCIL||Defendants|
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Mr J Auburn (instructed by Treasury Solicitor) appeared on behalf of the Defendant
J U D G M E N T
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MR JUSTICE SULLIVAN:
"The proposal constitutes over-development of the site, which would have adverse impact on the character and appearance of the site and the locality contrary to policies B8 and H5 of the Adopted Local Plan."
"I conclude that, subject to conditions, the proposed development would be acceptable in terms of density, garden size, siting and design. Its layout, however, would jeopardise the long-term health and stability of the protected tree T7, which enhances the appearance of the appeal site and adjoining footpath. Consequently, I take the view that the proposed development would cause unacceptable harm to the character and appearance of the site and surrounding area, and the benefits of the scheme would neither outweigh nor justify that harm ..."
"10. It is proposed to retain a protected beech tree (T7) on the northern boundary of the site. I understand that the tree was originally part of a beech hedge, but it has been crowded by other plants and grown tall and prominent. It is not a veteran tree or a rare species but it is healthy and capable of further growth; in my view, it makes a positive contribution to the appearance of the appeal site and the public footpath. The submitted plans suggest that the tree is currently 10m high with a 8m crown diameter.
11. I estimate that the proposed dwelling in the northwest corner of the site (Plot 4) would lie approximately 3.3m from the centre of the tree - less from the edge of the trunk. The Council's Landscape Officer expressed concerns about the proximity of this dwelling to the tree in his memos of 25 February and 8 March 2005. In my view, the proposed house would be so close to the tree as to impede the growth of the roots and lower branches. The proposed dwelling would also lie to the south of the tree and deprive it of light. Upper branches would seek to grow over the proposed roof but with its roots curtailed there would be a clear potential, to my mind, for the tree to develop an unbalanced shape and die back or become unstable.
12. The proposed house at Plot 4 would include no habitable room windows near to T7 so harmful overshadowing would be unlikely to arise. However, trees growing over houses can create problems of leaf fall and storm damage and I heard that the canopies of beech trees can grow up to 40m in diameter. The appellant suggests that it is common for trees to grow over houses but, given its potential instability, T7 would be liable in my view to cause such a nuisance to future occupiers of Plot 4 that the Council would find it difficult to refuse requests for it to be felled. I consider that the proposed development would pose a clear threat to the long term health of this protected tree and, as a result, cause unacceptable harm to the character and appearance of the appeal site and surrounding area.
13. It is proposed to raise the crown of T7 to 4m. I heard that the Council's Landscape Officer would agree to this pruning and be content for the tree to be kept trimmed to the same size. I have no objections to T7 being pruned to enable construction, but the proposed dwelling would be approximately 7.8m high to the ridge, so crown lifting would neither ensure room for lower branches to grow nor (subject to root growth) prevent the spread of higher branches over the roof. I also consider that beech trees do not normally require frequent pruning, save to remove dead branches, and since pruning can encourage further growth, this would neither be desirable nor effective long-term means to protect T7.
14. The Statement of Common Ground suggests that a condition could be imposed on any permission granted requiring a scheme for tree protection to be submitted and approved to the Council before development commences. I accept that T7 could be protected by fencing during construction, as the condition would require and submitted plans suggest. However, paragraph 51 of Circular 11/95: Use of Conditions in Planning Permission suggests that conditions should not be imposed to secure the long-term protection of trees. In my view, the proposed house at Plot 4 would represent a continued threat to the protected tree and the suggested condition would not prevent such conflict.
15. In relation to other plants on the site, the existing hawthorn hedgerows (G1 and G3) are overcrowded, as are the beech trees at G2. I consider that replacing the hawthorn and removing five beech trees would improve arboricultural health and enhance the appearance of the site. I have no objections to the proposed felling of other protected trees, none of which have great merit and most of which are deformed. Replacement planting could be ensured by means of condition and I allow that the proposed development could provide for improved landscape management. Nevertheless, it would still cause a reduction in mature tree cover and as a result T7 would become more visually prominent. To my mind, the landscape benefits of the scheme would not justify the threat to T7."
"Have concern re closeness of the new detached dwelling on the northern side of site, to the [existing] young beech tree. The latter has capacity to grow considerable and therefore impact on the proposed building. The usual quart into pint pot syndrome!
Concern re closeness of the new detached dwelling on the northern side of site, to the [existing] young beech tree. The latter has capacity to grow considerable and therefore impact on the proposed building. This has not been taken into account."
"Secondly the dwelling located on the northern side is located next to a young beech tree. This tree has the capacity to grow considerably and therefore would have an impact on the proposed dwelling and may in time result in the tree having to be felled. This has not been taken into account in the design and layout of the proposal. This is another indication of the cramped nature of the development."
"In my opinion this gives further weight to the Council's reason for refusal in relation to the cramped nature of the development and the conflict between the siting of the dwellings and existing trees and hedgerows which form an important characteristic of the site contributing to the visual amenity of the locality."
"There are a number of trees within the appeal site that are covered by a Tree Preservation Order ... The majority of the significant trees and hedgerows are to be retained. The trees that are to be retained will assist in assimilating the proposed development within its surroundings and ensure that it is not visually prominent within the street scene. Although the appeal site has a right of way along its northern boundary that adjoins Public Open Space to the west, the retention of existing trees and hedgerows will ensure that the proposed development is not unduly conspicuous when viewed from these Public Vantage Points."
"The appeal site will not require the removal of any trees that are protected by the Tree Preservation Order; all significant trees and hedgerows are to be retained. These trees and hedgerows will reduce the visual impact of the development and ensure that the character and appearance of the area is safeguarded."
"... T7 would be liable in my view to cause such a nuisance to future occupiers of Plot 4 that the Council would find it difficult to refuse requests for it to be felled. I consider that the proposed development would pose a clear threat to the long term health of this protected tree and, as a result, cause unacceptable harm to the character and appearance of the appeal site and surrounding area."
"15(1) The local planning authority and the appellant shall -
(a) together prepare an agreed statement of common ground; and
(b) ensure that the Secretary of State and any statutory party receives a copy of it, not less than 4 weeks before the date fixed for the holding of the inquiry."
"2. There are a number of trees within the appeal site. These trees are covered by a Tree Preservation Order.
23. The majority of the trees covered by the Tree Preservation Orders can be maintained and protected. The loss of any protected tree can be mitigated against through the planting of replacement trees that can be secured by condition."
"(2) At the start of the inquiry the inspector shall identify what are, in his opinion, the main issues to be considered at the inquiry and any matters on which he requires further explanation from the persons entitled or permitted to appear."
"I would also like to hear discussion of the importance, or otherwise, of trees and hedges on the site, and the impact of the proposed development upon them. I would like it to be confirmed whether any or which protected trees would be felled."
"... by suggesting that the site was in a prominent position and that the proposal to maximise development on the site, with trees and vegetation removed, would not comply with local plan policy B8, which requires development to be in sympathy with the character and appearance of the local area. Her emphasis was on the prominence of the site as much as the loss of trees."
"The plot position at the rear right of the site will be affected by a beech tree which is currently covered by a TPO. It is proposed to alter this tree to allow for the development but this does not take into account the future growth of the tree which will eventually grow and overshadow/overhang this dwelling. This will block out daylight to the dwelling and will result in the potential inhabitant continually complaining/applying to the Council to have the tree cut back."
"To the rear of the site plot 4 and a beech tree (TPO). Proposed to be trimmed not removed but over time tree would grow and overhang plot 4. Residents ask for tree trimmed."
Ms Antrobus also said:
"Main concern of landscape officer protection of features ... to be retained - hedge at front - TPO beech by plot 4. Proposed landscaping statement of common ground cover major concerns but still issues front hedge and TPO beech."
"17. The statement of case should contain the full particulars of the case which a party proposes to put forward at the inquiry; ie it should set out the arguments (planning and legal) that a party intends to put forward at inquiry and describe, but not contain, the evidence, and possibly cite the statutory provisions and case law, that a party intends to call in support of its arguments. It should also include a list of all the documents that a party will rely on when presenting their case at the inquiry and refer to in their proofs of evidence. This enables the parties to know as much as possible about each other's case at an early stage and will help the parties to focus on the matters which are in dispute. It can also help the parties assess whether there is scope for negotiation while there is still time for this to lead to a satisfactory outcome. Starting negotiations early can help avoid late cancellations of inquiries or requests for postponement."
"The inspector may allow any person to alter or add to a statement of case received by the Secretary of State or him under rule 6 so far as may be necessary for the purposes of the inquiry; but he shall (if necessary by adjourning the inquiry) give every other person entitled to appear who is appearing at the inquiry an adequate opportunity of considering any fresh matter or document."
"Trees (para 8.9!)
Not rely - condition."
"- the landscape officer withdraws objections excluding the beech tree.
- Mr Scholes (landscape officer) did not consider there should be a refusal.
The concerns do not amount to a reason for refusal - content to deal by condition.
The landscaping condition is in the statement of common ground.
Para 8.8 ... no reason for refusal relates to trees? Only concern is beech tree to back - no, landscaping = condition.
Para 8.9 - effect of beech, overhanging could be dealt with by condition.
LPA content beech tree should be trimmed to allow construction and be kept trimmed at approximate size."
Ms Antrobus was not re-examined on that issue.
"The Claimant's counsel ... questioned the authority's witness Miss Antrobus on this point. Miss Antrobus stated that T7 could be kept trimmed at approximately its existing size. I disagreed with her views on this. The matter was certainly canvassed."
"In cross-examination, it was put to Mr Timothy that the crown of a beech can grow up to 25m in diameter. He said that the matter could be dealt with by condition and that trees grow over houses all the time. I asked Mr Timothy how he would ensure the future survival of T7, if there was [to] be a physical conflict. He said the Council's landscape officer accepted that a condition could be imposed, the tree could be pruned to enable construction, to take account of roots/foundations, and it would not affect principal windows. I was entitled to disagree with Mr Timothy and my conclusion that the house could impede the growth of roots follows evidence canvassed at the inquiry."
Discussion and conclusions
"The relevant law ... is to be found in cases such as Fairmount ... and H. Sabey & Co. Ltd. v The Secretary of State for the Environment  1 All E.R. 586. Did the Claimant have a 'fair crack of the whip?' Was the Claimant deprived of an opportunity to present material by an approach on the part of the Inspector which he did not and could not reasonably have anticipated? Or is he trying to improve his case subsequently, having been substantially aware of, or alerted to, the key issues at the Inquiry? Did he simply fail to realise that he might lose on an aspect which was fairly and squarely at issue and hence fail to put forward his fall-back case? Those are the sort of questions which can be used to guide a conclusion as to whether the manner in which a particular issue was dealt with at an Inquiry involved a breach of natural justice and was unfair."
"2. The statement of common ground is a written statement prepared jointly by the local planning authority and the applicant (or appellant). The purpose of the statement of common ground is to set out the agreed factual information about the proposal. The inclusion of agreed material in the statement of common ground should result in shorter proofs of evidence and shorter inquiries.
3. The statement of common ground should complement the proofs of evidence and both should be received by the Secretary of State no later than 4 weeks before the inquiry. The main parties will therefore need to meet before that date to try to narrow the areas of dispute and agree on what should go in the statement. It is the responsibility of the applicant (or appellant) to send the statement to the Secretary of State.
5. In all cases agreement can be reached on some matters: the precise nature of the proposal before the inquiry, the description of the site, its planning history and the relevant policies can all be agreed.
6. Evidence on technical matters and topics that rely on basic statistical data can often be fruitful areas for pre-inquiry agreement.
7. The statement of common ground, by clearly identifying the matters which are not in real dispute, may save time and cost at the inquiry. It may also be useful for the statement to identify areas where agreement is not possible.
8. Time can also be saved at the inquiry by seeking to agree beforehand the conditions that any permission granted should contain and any planning obligations being considered. The Rules reinforce the established presumption against taking into account material submitted after the inquiry is closed ..."
"I also consider that beech trees do not normally require frequent pruning, save to remove dead branches, and since pruning can encourage further growth, this would neither be a desirable nor effective long-term means to protect [tree] T7."