England and Wales High Court (Administrative Court) Decisions

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

		Cardiff Civil Justice Centre 2 Park Street Cardiff
		20/07/2009

Mr Justice Wyn Williams :

1. By a Claim Form issued the 27^th April 2009 the Claimant seeks an order under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a Woodland Tree Preservation Order made by the Defendant in respect of an area of woodland known as Grove Wood, Blackberry Hill, Stapleton.
2. The procedural steps relevant to the making of the order were as follows. On 29^th October 2008 the Development Control (South and East) Committee of the Defendant ("the Planning Committee" resolved to make the Tree Preservation Order in respect of Grove Wood. By notice dated 12 November 2008 the Defendant indicated that the Order would take effect immediately and would continue in force provisionally until 12 May 2009 or until the Order was confirmed by the Defendant whichever occurred first. Objections to and representations in support of the Order were in invited by 17 December 2008. On 1 April 2009 the Planning Committee resolved to conform the making of the Order. Notice of the confirmation of making of the Order was given on 14 May 2009.
3. The Claimant's claim for an order under section 288 of the 1990 Act was heard by me on 3 July 2009. In advance of the hearing Counsel for the Defendant, Mrs Harriet Townsend, filed a Skeleton Argument in which she took a preliminary point – namely whether the Claimant had standing to bring these proceedings under section 288 of the 1990 Act. Shortly after the hearing before me commenced she invited me to determine that issue as a preliminary point.
4. With some initial hesitation, I acceded to that submission. I hesitated because I am conscious that the determination of the preliminary issue will leave unresolved the many and varied issues raised by the Claimant in relation to the merits of his claim. However I was conscious that the resolution of the merits of the claim might take considerably longer than the one day which had been allotted for the hearing. I asked the Claimant to identify for me, in headings only, the various points which he wished to take on the merits. He identified at least seven or eight headline points and, to repeat, it seemed to me that it was inevitable that a good deal of time and, therefore, expense would be incurred in resolving the points the Claimants wished to put before me. It also became clear to me that many of the points (although not all) were not strictly legal points at all and certainly not points upon which it would be proper to quash the Tree Preservation Order. As such I formed the strong provisional view that the Claimant could not succeed on those points. Against that background it seemed to me that the overriding objective of the Civil Procedure Rules and, the concept of proportionality generally demanded, that I should hear the preliminary issue first and in the event that I was minded to resolve that issue in favour of the Defendant to say so..
5. Accordingly the hearing before me, in the main, concentrated upon the issue of whether the Claimant was a person entitled to bring a claim under section 288 of the 1990 Act. At the end of the hearing I informed the parties that I was satisfied that the Claimant was not entitled to bring such a claim and that, therefore, I intended to dismiss the claim on that basis. This written judgment sets out my reasons for reaching that conclusion.
6. Section 288(1) of the 1990 Act permits a person to make an application to quash an order such as a Tree Preservation Order if he is a person who "is aggrieved" by the Order. The Act contains no further elucidation of the phrase "is aggrieved" but, not surprisingly, the phrase has been the subject of debate in the Courts. The most recent authoritative exposition of whether or not a person "is aggrieved" within section 288 of the 1990 Act is to be found in the decision of the Court of Appeal in Eco-Energy(GB) Limited v First Secretary of State and others [2004] EWCA Civ 1566. During the course of his judgment, with which the other members of the Court expressly agreed, Buxton LJ defined the persons having the right to bring a claim under section 288 of the 1990 Act in the following terms:-

"7. The First question that arises is: who indeed can apply to the court under section 288? The judge considered, and there is before us, the case of Times Investment Ltd v Secretary of State for the Environment [1991] PLR 67. In my judgment, the upshot of that authority (which of course is binding on us) is that persons aggrieved under section 288 are either (1) the appellant in the planning process, or (2) someone who took a sufficiently active role in the planning process – that is to say, probably a substantial objector, not just somebody who objected and did no more about it – or (3) someone who has a relevant interest in the land……….. "

7. In her Skeleton Argument Mrs Townsend referred to a number of other cases in support of her contention that the Claimant could not be regarded as person aggrieved but no useful purpose would be served in setting out those cases in this judgment. I am obviously bound by the decision in Eco-Energy and my task is to apply that decision to the facts of this case.
8. The relevant facts are as follows: At all material times Grove Wood has been within the Stapleton and Frome Valley Conservation Area. In about January 2008 it came to the Defendant's notice that the owner of Grove Wood, by his servants or agents, had been involved in felling some trees. The Defendant decided to investigate whether any illegal activity had taken place. At the material time the Claimant was employed by the Defendant as an Arboricultural Officer. He was appointed as the case officer to investigate what had occurred and whether any illegal activity had taken place. He inspected the trees allegedly felled and decided that no illegal activity had taken place. Further, as I understand it, in or about July 2008 and acting under delegated powers, the Claimant decided that the Defendant should not impose a Tree Preservation Order in respect of some 27 trees along the boundary of Grove Wood and the adjoining road.
9. There seems little doubt that substantial local interest was generated by the alleged tree felling activities and whether or not any Tree Preservation Order was justified in respect of some or all of the trees in Grove Wood. At a meeting of the Planning Committee on 17 September 2008 a discussion took place about whether or not a Tree Preservation Order should be made. The Claimant attended that meeting since, at that stage, he was the case officer dealing with the issue. At the meeting on 17 September 2008 the Planning Committee resolved that a full report should be brought to its next meeting setting out the merits and disadvantages of imposing a Tree Preservation Order over Grove Wood. Following that meeting the Claimant's Line Manager, Mr Richard Charles Ennion, took over as the officer providing advice to the Committee.
10. As is clear from the documentation which the Claimant has submitted in this case he feels passionately that a Woodland Tree Preservation Order over the whole of the wood was completely unjustified. As I understand it he has made that view known with vigour to his employers, the Defendant. It does not seem to me to be necessary to recite in this judgment the steps which the Claimant has taken internally to make his view known about (a) the merits, in planning terms, of the making of a Tree Preservation Order and (b) the legality of the Defendant's actions.
11. The Claimant accepts that he did not register an objection, as a private individual, to the making of the Tree Preservation Order when notice was given that objections should be made on 12 November 2008. He has not registered an objection in a private capacity at any stage prior to the resolution passed by the sub-committee on 1 April 2009. As a matter of fact, of course, it is correct to record he began these proceedings before notification had been given giving effect to the resolution of 1 April 2009.
12. The Claimant has no conceivable interest (legal or equitable) in the land upon which the wood lies. He does not live in the immediate vicinity of the wood.
13. On the basis of these facts I simply do not see how the Claimant can bring himself within the category of persons identified by Buxton LJ in Eco-Energy. He is not the Appellant in a planning process. He has no relevant interest in the land in question. He is someone who took an active role in the planning process in the sense that he was an employee of the decision maker and, in the course of his employment, he exercised delegated powers and provided advice to his employers. In my judgment, however, he was not a person who took a sufficiently active role in the planning process in the sense that Buxton LJ used in Eco-Energy. It seems clear to me as the Learned Lord Justice had in mind a person who had been a substantial objector to the proposed and actual decision but who was unconnected with the actual decision-making process. In my judgment he did not intend that his phrase "someone who took a sufficiently active role in the planning process" should extend to an employee of the decision maker who has participated in the decision making process and disagrees with the decision ultimately reached. In my judgment that is so even when that employee wishes to allege illegality against his employers (as he must do for a claim to succeed under section 288 of the 1990 Act). In my judgment to interpret section 288 of the 1990 Act so as to permit challenges by persons in the Claimant's position would be to widen the category of persons permitted to make such challenges far beyond that which was intended by the legislature as interpreted by the Higher Courts. Mrs. Townsend submits that where a Claimant wishes to question the validity of a Tree Preservation Order he requires an interest in the outcome which can objectively be recognised as such. I am satisfied that the Claimant has no such interest in this case. Accordingly, I conclude that that the Claimant is not a person who is entitled to bring a claim under section 288 of 1990 Act so as to seek to quash the Woodland Tree Preservation Order made in respect of Grove Wood.
14. At the conclusion of the hearing before me the Defendant indicated that it sought an order for costs against the Claimant but that it was limited to a sum of £5,000. I indicated that such a sum was likely to be far less than the Defendant's actual cost but I informed the Claimant that I was prepared for him to submit written representations about whether I should make an order for costs in favour of the Defendant and if so, in what amount. I took that course since the Claimant informed me that he was unprepared to deal with the issue.
15. I propose to hand down this judgment at 10.30 am on 20^th July 2009 at the Birmingham Civil Justice Centre. No party need attend. I propose to make an order dismissing the claim and I will also make an appropriate order for costs after I have considered any written representations which are made to me by the Claimant.
16. If the Claimant wishes to appeal against my decision to dismiss his claim or, for that matter, in respect of any order for costs I make (if it is adverse to him) he should seek permission to appeal from the Court of Appeal. He must do so in an appellant's notice within 21 days of 20^th July 2009. I make this direction simply to clarify for the Claimant what steps he would need to take in the event he wishes to appeal.