England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
(BRISTOL HEARING CENTRE)

		Bristol Civil Justice Centre 2 Redcliff Street, Bristol, BS1 3TS
		22/11/2012

Mr Justice Beatson :

Introduction

1. In this statutory application under section 288 of the Town and Country Planning Act 1990, the applicant, EU Plants Ltd, challenges the decision of Wokingham Borough Council ("the Council") dated 31 July 2012 to confirm a Tree Preservation Order ("TPO") at Manor Farm, Lower Sandhurst Road, Finchampstead, Wokingham. Manor Farm is within a designated Area of Special Landscape Importance in the countryside. It is an area TPO protecting all trees on land within a 5 metre strip adjacent to the west side of a specified permissive path on Manor Farm. The applicant company produces soft fruit plants and supplies many large commercial fruit farms in the United Kingdom and Europe. It has its headquarters at Millets Farm, Abingdon, Oxfordshire. In July 2011 it purchased the land at Manor Farm in order to expand its activities. Since then, it has made a number of planning applications in relation to the land at Manor Farm, which are summarised at [8].
2. By section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") a person aggrieved by any order to which the section, which includes Tree Preservation Orders, who wishes to question the validity of the order on the ground that (i) it is not within the powers of the Act, or (ii) that any of the relevant requirements have not been complied with in relation to the order, that person may apply to the High Court within six weeks from the date on which the order is confirmed: section 288(1) and (3).
3. It is common ground that an application under section 288 is not an opportunity for a review of the planning merits of a local authority's decision (see Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759 at 780), that decision letters are not to be subjected to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute (Seddon Properties v Secretary of State for the Environment [1978] JPL 835), and (see R (New Smith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 at [7]) Wednesbury unreasonableness or irrationality is particularly difficult hurdle in challenges brought under section 288.
4. On behalf of the applicant, Mr Fletcher raised four grounds. Three contend that the TPO was not within the powers of the Act because it was not open to the Council, in the light of the evidence submitted on behalf of the applicant, to conclude, in the words of section 198(1), that it was "expedient in the interests of amenity" to confirm the TPO. It was submitted that the officer's report to the Planning Committee misrepresented and did not deal fairly with the contents of an arboricultural report by Crown Consultants submitted in support of the applicant's objections, and the Committee thus proceeded on false assumptions when confirming the TPO. It was also submitted that the TPO contravened relevant guidance by central government and the Council, and that there was no proper basis for concluding that the trees were under threat. The fourth ground is that the rules of natural justice were breached because Mr Weeks, a local Councillor and the Chairman of the Planning Committee at the material times, had a personal interest in the matter because he resides in close proximity to Manor Farm. Additionally, it was submitted that he demonstrated bias or apparent bias in remarks made to Mr Slavchev, the Managing Director of the applicant company, prior to the making of the Order. One remark was a veiled threat to use a Tree Preservation Order to stop development, and another was an expression by Mr Weeks of sympathetic support for local residents campaigning against development of Manor Farm.
5. The evidence on behalf of the applicant consists of the statement, dated 7 September 2012, of its solicitor, Alex Lloyd Madden, a partner at Thrings LLP, and two statements of Slavey Slavchev, dated respectively 18 October and 5 November 2012. The evidence on behalf of the Council consists of statements of Simon Weeks and Coralie Ramsey, both dated 25 October 2012. Ms Ramsey is a tree and landscape officer employed by the Council. She has a Royal Forestry Society Certificate in Arboriculture, and the Arboricultural Association Technicians Certificate in Arboriculture.
6. I shall first set out the background to the TPO, the objections made to its confirmation and the statutory and regulatory framework. I shall then turn to the factual basis for the allegation that Mr Weeks was biased or apparently biased, and the legal regime governing that issue. I shall then summarise the submissions and set out my conclusions.

The background to the TPO

7. When, in the middle of 2011, it became known that Manor Farm was to be sold, local concerns were expressed about the future use of the land. It was rumoured that the seller had considered the site suitable for, amongst other things, warehousing, a retail park and an open prison: Mr Weeks's statement, paragraph 2. Mr Weeks learned of this in July 2011. He considered that it was appropriate to request the Council to consider making a precautionary TPO until the land was sold and the new owner's intentions were known. The Council's tree officer, Jon Matthews, a senior arboriculturalist, did not consider that to be necessary, and Mr Weeks did not pursue the matter. Mr Weeks's evidence (paragraph 3) is that, after the sale, and after he had met Mr Slavchev on a few occasions, he considered that the established trees were not at risk.
8. I have referred to a number of planning applications made by the claimant. They included the proposed erection of an irrigation shed, a proposed farm track, and erection of polytunnels and associated access track, and formation of a ditch. These were all approved or approved as permitted development between 13 January and 22 May 2012. The 13 January 2012 application for a track was refused on 16 February, but accepted as permitted development on 25 April. An application for a certificate of proposed lawful development for erection of polytunnels was refused in April 2012, but a further application was approved in May 2012.
9. In December 2011, Coralie Ramsey was asked by Jon Matthews to assess trees at Manor Farm on land within a five metre strip adjacent to the west side of a permissive path on Manor Farm, in order to decide if they warranted the making of a TPO. Ms Ramsey inspected the relevant area on 16 December 2011. Her evidence (statement, paragraph 6) is that trees had been felled and trees had been pruned in a way which did not meet industry standards. That afternoon, she met Mr Matthews and they considered whether the statutory criteria had been fulfilled: Ms Ramsey's statement, paragraph 2. They decided they had and that a TPO should be made. The Council's Head of Development Management's report for the 25 July 2012 meeting of the Planning Committee stated:

"in January 2012 Council Officers were made aware of development proposals being considered for…Manor Farm. Following receipt of this information, Council Tree Officers considered that the trees were at significant risk from potential damage or removal".

No explanation for the difference in the dates was given by Mr Flanagan, who appeared on behalf of the Council. The claimant did not, however, challenge Ms Ramsey's evidence or rely on the difference. The January date may be the time at which the writer of the report, the Head of Development Management, became involved.

The provisional TPO

10. By a notice dated 3 February 2012, the Council made a provisional Tree Preservation Order over the specified area. The TPO was to continue in force for six months, or until confirmed by the Council, whichever occurred first. The notice stated that the TPO (1414/2012) was made "in response to recent tree-felling which has been undertaken" on specified land known as Manor Farm. It also stated:

"Following a change of ownership and the removal of trees in this location, the Borough Council considers that the site may be subject to development in the future. Specific development along the permissive pathway appears to be to install a roadway, which would potentially cause significant harm the roots and canopy of the trees (sic). This would reduce their amenity value to members of the public viewing from the pathway and from the Lower Sandhurst Road, the Ridges, and Jubilee Road. These trees are growing along a ditch, and their age implies a long association between trees and the ditch field boundary line. As such, this group is of additional historic importance.

Wokingham Borough Council therefore considers it expedient to include the trees to the west of the pathway in a Tree Preservation Order now. This is to ensure that they are adequately protected and will continue to make a long-term contribution to the visual amenity of the local area. It will also ensure that only appropriate works are undertaken to the trees."

11. The Council invited objections or representations to be received by 4 April 2012. It appears from the Officer's Report for the meeting of the Planning Committee on 25 July which confirmed the Tree Preservation Order that the Order and notice were served on the occupier of Manor Farm on 3 February 2012. However, when it came to light that the controllers of the applicant did not live at the address, the notice was sent to the applicant at its Abingdon address on 7 March 2012. The report stated that this was done "with an extension to 4 April 2012, giving 28 days to appeal". At one stage, it was submitted that this was a ground for challenging the Order, but that has not been pursued. Regulation 3 of the Town and Country Planning (Tree Preservation (England)) Regulations 2012 SI No 605 required the Council to give 28 days for any representations to be made. That period ended on 4 April 2012.

The applicant's objections

12. In a letter dated 13 March Thrings LLP served notice that the applicant objected to the Tree Preservation Order. In a further letter dated 3 April 2012, Thrings enclosed a copy of a letter by Crown Consultants to the Council's arboriculturalist setting out those objections in detail. These letters reached the Council on 11 April.

(i) Thrings' letter

13. Thrings' letter stated that the Order departed in a number of respects from the Council's guidance note for including trees in Tree Preservation Orders. It contended that, whereas the guidance required trees subject to an Order to be "highly significant when viewed from a public place", and that "trees that can only be viewed from a neighbouring property and are not significant in the wider landscape cannot be included", the trees subject to the Order were stated to be "virtually invisible when viewed from a public place". This was said to constitute misdirection by the Council's tree officer as to the criteria, which misdirection rendered the decision Wednesbury unreasonable.
14. Secondly, it was submitted in the letter that, because a certain number of trees included in the Order were not "safe and healthy" and "capable of reasonably long life", another of the requirements in the guidance was not satisfied. That was stated to render the decision to include such trees in the Order "therefore irrational".
15. Thirdly, the applicant relied on the statement in the Council's guidance that "it must be expedient to include the trees in the TPO. This usually means that they are under some form of threat such as proposed development." The letter stated that, as the reasons given for making the Order were "both the change of ownership of the above property and the proposed development, notwithstanding that the proposed development seeks to protect the roots of the trees…", the Council's tree officer misinterpreted the criteria in the guidance, and "the basis for making the TPO is self-evidently misconceived".

(ii) Crown Consultants' submission

16. Crown Consultants' letter dated 3 April, is a substantial document, and is effectively an expert report. It is signed by Mr Ivan Button, the company's director. For present purposes, it suffices to record that, in the section on history, it stated (paragraph 2.7) that "many of the trees within the Order were in a very poor condition at the time of purchase" by the applicant (see also paragraph 6.2). It also stated that (paragraph 2.8) willow trees "are included within the unconfirmed Order, and are growing from inside the drainage ditch". As to the path, it stated (paragraph 2.11) that the track has not been properly surfaced so the passage of pedestrians and vehicles has caused the soil to be compacted, and that this is widely recognised as a problem for trees. There is also a section on Mr Slavchev's experience, qualifications and method of land management. This recorded that he has a great respect for nature and mature trees, has taken great care to preserve mature trees, and has not felled any trees on Manor Farm: paragraph 3.3.
17. Section 4 described recent activity by the applicant on Manor Farm. This was said to include:- planting a total of over 7,000 native trees in the seven month period since the applicant purchased the property; lifting the lower canopies of the trees subject to the Order alongside the permissive footpath, so that they were not inadvertently damaged by farm vehicles; and clearing out many of the drainage ditches. Paragraph 4.4 stated that, before commencing hedging work, Mr Slavchev consulted Mr Simon Weeks, his neighbour and the chairman of Wokingham Planning Committee, and another resident, and that they believed that the proposed management of the hedges was necessary, beneficial and welcome, but that it was not possible to finish the entire stretch of hedge because of concerns raised by others.
18. Paragraph 4.10 recorded that Mr Slavchev intended, at the date of the letter, to submit a further prior notification application to install a porous surface over the track adjacent to the trees within the Order using a system recommended within BS 5827 (Trees in relation to Construction – Recommendations) and Arboricultural Practice Note 12 (Driveways close to trees, Arboriculture Advisory and Information Service). This, it was stated, would prevent further soil compaction and disturbance of the soil structure, and enable a healthy soil structure to develop along with healthy root growth. Finally, paragraph 4.11 stated that "Mr Slavchev has NOT felled any mature trees, nor has he pruned any trees except to enable access to the ditches, farm tracks, and adjacent roads which will prevent inadvertent damage to trees."
19. Section 5 dealt with the Council's stated reasons for making the Order. With respect to the first reason, it stated (paragraph 5.3) that "in point of fact there has been no tree felling on Manor Farm. Only tree pruning works have been undertaken", and (5.4) "because there has been no tree felling, we consider the local authority's stated reasons for making the Order to be misconceived". This section also made further reference to the porous load-spreading surface which Mr Slavchev wished to install to ensure that the tree roots under the pathway were protected and that steps to prevent the soil from drying out and compacting were put in place.
20. Section 7 dealt with government guidelines that needed to be considered when making or confirming a Tree Preservation Order, in particular those in the Guide to the Law and Good Practice also known as the "Blue Book". The letter particularly highlighted the following:

"3.2 …in the Secretary of State's view, it would be inappropriate to make a TPO in respect of a tree which is dead, dying or dangerous.

3.3 …visibility: the extent to which the trees or woodlands can be seen by the general public will inform the LPA's assessment of whether its impact on the local environment is significant. If they cannot be seen or are just barely visible from a public place a TPO might only be justified in exceptional circumstances.

3.4 [under the heading of expediency] …it is unlikely to be expedient to make a TPO in respect of trees which are under good arbicultural or sylvicultural management.

…

3.17 …the LPA may limit the TPO's protection to those species within the area which make a significant contribution to amenity…the area classification has its drawbacks. Firstly, it is possible that trees will be included in the TPO that do not merit protection. Secondly, unlike woodlands, the TPO protects only those trees standing at the time the TPO was made. Over time, as new trees are planted or grow within the area, it may become difficult to say with certainty which trees are actually protected.

3.18 In the Secretary of State's view the area classification should only be used in emergencies, and then only as a temporary measure until the trees in the area can be assessed properly and reclassified [and replaced] with individual or group classifications where appropriate."

Area Orders are Orders such as that in the present case, designating all trees within a defined area on a map. Group classifications are Orders which identify the protected trees by species type. Individual classification is a self-explanatory category.

21. Section 8 dealt with the implications of the policy guidance for the Tree Preservation Order in this case. The report-writer, Mr Button, stated that he did not consider that the trees have a high visual amenity value. This, he stated, was because during his site visit and tour of the public roads around the farm (paragraph 8.4.2), there were "very few locations with unobstructed views of the trees", that where they are visible, "views are significantly restricted by hedgerow trees which line the roads", and that, from other locations, views are prevented by the presence of occasional private residences and other groups of trees.
22. Mr Button also stated that he concluded that there was no threat to any of the quality trees owned by the applicant. I have referred (see [8]) to the improvements made since the applicant acquired the land. It is stated (paragraph 8.5.5) that Mr Slavchev "is practising good management techniques which will result in an improvement in the health of existing trees and hedgerows under his guardianship".
23. Paragraph 8.5.4 is important in these proceedings. This stated that "it is misleading and factually incorrect" of the Council to state that "tree felling has been undertaken". It then stated that "pruning works have recently been undertaken in order to restore the hedges along the southern boundary", and that "these works were necessary because of a lack of previous management, and all of the recent pruning works have been undertaken in accordance with sensitive landscape management and good arboricultural practice". Significantly, it is then stated: "No trees have been felled by Mr Slavchev other than small self-sown trees which interfere with the operation of the farm or which are in a state of collapse and considered to pose an unacceptable risk to the public".
24. Section 8.6 addressed the question whether the trees are of sufficient quality to be worthy of protection. It stated (paragraph 8.6.2 – 8.6.3) that the northern section of the area within the Order is made up from trees that have grown from an old hedge which has been allowed to lapse. It also stated that occasional oaks and a couple of the field maples were originally grown as standards, but that "the remaining survivors are all poor quality, as would be expected from trees that have sprouted from lapsed hedgerow stools". It stated, of the ashes, that some have grown into dominant trees, "but all are multi-stemmed with poor form and in poor condition, both physiologically and structurally". They were stated to be "in such poor condition that they are not considered to be of sufficient quality to be worthy of protection", and will require "a high degree of active management if they are to be maintained in a safe condition to protect users of the permissive footpath". There are similar judgments, and similar expressions; that is, "not considered to be of sufficient quality to be worthy of protection", in relation to a self-sown sycamore tree, several small field maples, birch trees, and holly trees in the northern section: see paragraph 8.6.5 – 8.6.8. It also stated of the birch trees that it is unlikely that they will grow into healthy mature specimens. As to goatwillows in the southern section, it stated these are considered a weed species and not of sufficient quality to be worthy of protection.
25. The summary stated (paragraph 9.1) that the reasons for making the Order were both misconceived since there has been no felling at the farm, and the proposed surfacing of the track will actually be beneficial for the trees. It also stated that there is "abundant evidence that the trees are now under good management following several years of neglect" (paragraph 9.2) and (paragraph 9.4) that many of the trees "are in very poor condition and will require ongoing maintenance works in order to improve their condition and reduce risks to farm stock and members of the public using the permissive footpath". Paragraph 9.4 also stated that it is not considered in the interest of the public to protect trees in such poor condition "since public resources shall have to be allocated to assessing each and every application throughout the entire lifespan of the trees present".

The report to the Planning Committee

26. The next stage was for the Council to consider this and other objections to the Tree Preservation Order, and supportive responses to the notice. The Head of Development Management prepared a report dated 17 July 2012 for the meeting of the Planning Committee on 25 July, which was to consider whether to confirm the Order. This summarised the representations made, in particular those on behalf of the applicant. It is, for example, stated that the letter of objection stated "a number of the trees are not safe and healthy, or capable of reasonably long life", birches, ash or sycamore should not be included as "they are small, self-sown trees in poor condition" and "the holly trees have low amenity value and will overpower adjacent trees". It is also stated that, under the sub-heading "felling", the letter of objection stated that "there has been no tree felling at Manor Farm, and therefore there is nothing to suggest that these trees will be felled". The summary in the report also stated the letter of objection referred to the proposed load-spreading surface and stated that "if the track is left without any kind of surfacing, it would be more detrimental to the trees".
27. A section on the relevant planning policy referred to WBE 5 of the Wokingham District Local Plan concerning trees and new developments. That stated that "it is important to protect trees and hedges in the plan area that make a fundamental contribution to its character and appearance". It also stated that, in considering proposals for new developments, the effect on existing trees and areas of woodland would be taken into account and, where appropriate, TPOs would be applied.
28. The material parts of the section of the report on planning issues stated:

"Visibility of the trees:

Having viewed the trees and the surrounding landscape, Council tree officers can confirm the trees are visible in views from Lower Sandhurst Road, Jubilee Road and the Ridges, and from Dell Road. The trees make an important contribution to the mature tree cover in the local area.

Safety and requests:

Trees that are considered as dead or dangerous are exempt from TPO legislation. All other applications for tree work can be made by using the application for works form and, once granted, consent will be valid for two years. In this way, the protected trees can still be appropriately managed within the Tree Preservation Order legislation and confirming the [TPO] will not prevent appropriate health and safety tree works being undertaken in future. …

Expediency:

[The terms of section 198(1) of the 1990 Act are summarised].

Change of land ownership is not usually a criterion to create TPOs, but in this case, the new owner was a business proposing and demonstrating a change in working practices on the site; hence inclusion of the trees in a TPO is justified.

Where trees are considered to be under sound arboricultural management and not subject to any known threat (such as from inappropriate pruning work, development proposals, or are being considered for removal) then a TPO is not usually considered to be either expedient or justified. However, Council tree officers are aware that trees have already been pruned prior to making the Order. The pruning cuts are evident as not being in accordance with the British Standard 3998/2010 (Tree Work Recommendations). Photographs attached with this report show evidence of pruning works undertaken to trees just prior to making of this order.

Felling:

Crown Consultants state that "no trees have been felled other than self-sown trees". It is rarely appropriate to give different values to trees based on whether they are considered to be planted or "self-sown". The means of establishment for many trees is often difficult to determine and has no weighting on the immediate visual significance of the mature tree. For the purposes of the TPO legislation, the High Court has determined that a "tree" is anything which ordinarily one would call a tree; this would include self-sown trees. The statement from Crown Consultants therefore confirms that trees have been removed, thus underlining the expediency of the Tree Preservation Order.

No surfacing on the track:

The purpose of the [TPO] is not to prevent any development in this area; but is to ensure that any road that may be constructed is built so as to minimise impact on the trees in accordance with industry best practice."

29. The conclusion of the report summarised its recommendation that the TPO be confirmed. It stated that the making of the Order "is considered expedient, as it is to ensure the retention and appropriate management of highly visible field boundary trees within the property of Manor Farm…". It also stated that "the expediency of this [TPO] has been demonstrated by prior works to the trees, which are not considered to be in accordance with best arboricultural practice. Confirming this [TPO] will ensure that only appropriate work is undertaken to the trees, and that their removal can only be undertaken with written permission from the [Council]. It will also enable replacement planting to be undertaken when appropriate for any trees that may be removed in the future". A one page members' update on the day of the meeting referred to 15 additional communications supporting the confirmation of the TPO.
30. At the meeting, Ms Ramsey gave a presentation on the recommendation that the Committee confirm the TPO. She summarised the objections and her responses using a PowerPoint presentation. She informed the Committee that Crown Consultants' letter had not been included with the documents circulated, but was available for view, and had been précised in the letter dated 3 April 2012 from Thrings, which had been circulated. She used slides to illustrate the contents of the officer's report on the visibility of the trees, and she stated in respect of the "expediency" representation that there had been work to trees on the farm which was not in accordance with best practice. She showed the Committee a slide to illustrate substandard pruning cuts. After responding to the "no felling" objection, she dealt with the "no surfacing" and "new road surface" points together. She stated that the new track was under permitted development, so no conditions could be used, as in a formal planning application, to protect trees, and that therefore a TPO was necessary for that protection.
31. The Planning Committee confirmed the Order without modification at its meeting on 25 July 2012. Eight of the nine members were present. Six voted to confirm the TPO. Two did not vote. One member had arrived late and had missed the presentation. The Chairman, Mr Weeks, did not vote for reasons set out at [61]. The order notice was sent out on 31 July 2012. These proceedings were lodged on 10 September 2012.

The legal framework

32. The legislative framework is contained in section 198 of the Town and Country Planning Act 1990 ("the 1990 Act") and the Town and Country Planning (Tree Preservation (England)) Regulations 2012 SI No 605 of 2012 ("the 2012 Regulations"). Additionally, the Department for Communities and Local Government has issued policy advice on the Tree Preservation Order system, and ways in which local planning authorities can run it appropriately. That advice is contained in "Tree Preservation Orders: A Guide to the Law and Good Practice". The Council has also issued guidance on this topic.
33. Section 198 of the 1990 Act (as amended) provides:

"(1) If it appears to a 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 subsection (1) is in this Act referred to as a 'tree preservation order'."

34. Prior to April 2012, when the 2012 Regulations came into force, section 198(6) provided that a Tree Preservation Order could not apply to trees which are "dying or dead, or have become dangerous". Since 6 April 2012, the prohibited activities and exceptions are dealt with in the 2012 Regulations.
35. Regulation 13 provides that, subject to the exceptions in Regulation 14, no person shall cut down, top, lop, uproot, wilfully damage or wilfully destroy any tree to which an Order relates, or cause or permit the carrying out of any of these activities to such a tree, except with the written consent of the authority which has made the Tree Preservation Order and in accordance with any conditions made by that authority when consenting. Regulation 14 deals with exceptions. Its material parts provide:

"(1) Nothing in Regulation 13 shall prevent –

(a) the cutting down, topping, lopping or uprooting of a tree -

(i) which is dead;

…

(b) the removal of dead branches from a living tree;

(c) the cutting down, uprooting, topping or lopping of tree, to the extent that such works are urgently necessary to remove an immediate risk of serious harm, or to such other extent as agreed in writing by the authority prior to the works being undertaken…"

36. The material parts of the Department for Communities' guidance are:

"Chapter 2

Scope of tree preservation orders

…

Trees and woodlands

2.1…The term 'tree' is not defined in the Act, nor does the Act limit the application of TPOs to trees of a minimum size…The dictionary defines a tree as a perennial plant with a self-supporting woody main stem, usually developing woody branches some distance from the ground and growing to a considerable height and size, but for the purposes of the TPO legislation, the High Court has held that a 'tree' is anything which ordinarily one would call a tree.^[1]

Chapter 3

Making and confirming tree preservation orders

…

Power to make a TPO

[3.1 sets out section 198(1) of the 1990 Act]

Amenity

3.2 The Act does not define 'amenity', nor does it prescribe the circumstances in which it is in the interests of amenity to make a TPO. In the Secretary of State's view, TPOs should be used to protect selected trees and woodlands if their removal would have a significant impact on the local environment and its enjoyment by the public. LPAs should be able to show that a reasonable degree of public benefit would accrue before TPOs are made or confirmed. The trees, or at least part of them, should therefore normally be visible from a public place, such as a road or footpath, although, exceptionally, the inclusion of other trees may be justified. … [T]rees may be worthy of preservation for their intrinsic beauty or for their contribution to the landscape or because they serve to screen an eyesore or future development…The value of a group of trees or woodland may be collective only. … In the Secretary of State's view, it would be inappropriate to make a TPO in respect of a tree which is dead, dying or dangerous.

3.3 LPAs should be able to explain to landowners why their trees or woodlands have been protected by a TPO. They are advised to develop ways of assessing the 'amenity value' of trees in a structured and consistent way, taking into account the following key criteria:

…

(2) Individual impact: The mere fact that a tree is publicly visible will not itself be sufficient to warrant a TPO. The LPA should also assess the tree's particular importance by reference to its size and form, its future potential as an amenity…as noted in paragraph 3.2 above, in relation to a group of trees or woodland, an assessment should be made of its collective impact;

…

Expediency

3.4 Although a tree may merit protection on amenity grounds, it may not be expedient to make it subject to a TPO. For example, it is unlikely to be expedient to make a TPO in respect of trees under good arboricultural or sylvicultural management.

3.5 It may be expedient to make a TPO if the LPA believe there is a risk of the tree being cut down or pruned in ways which would have a significant impact on the amenity of the area. It is not necessary for the risk to be immediate. In some cases, the LPA may believe that certain trees are at risk generally from development pressures. The LPA may have some other reason to believe that trees are at risk; changes in property ownership and intentions to fell trees are not always known in advance, and so the protection of selected trees by a precautionary TPO might sometimes be considered expedient.

…

Chapter 6

Applications to carry out work on protected trees

…

Exemptions in the Act

Dead, dying and dangerous trees

6.2 The LPA's consent is not required for cutting down or carrying out work on trees which are dead or dying, or have become dangerous. …

…

6.4 Determining whether a tree is dead, dying or dangerous is not always a straightforward matter. Whether or not a tree has become dangerous for the purpose of the statutory exemption is a question of fact. In deciding whether trees have become dangerous, the courts adopt the sensible approach of a prudent citizen; there must be a present danger, which need not be limited to disease or damage to the trees themselves. The threatened danger does not actually have had to have occurred; it is sufficient to find that, by virtue of the state of the trees, their size, their position and such effect as any of those factors have, one can properly conclude that the trees have become dangerous. …"

37. The material parts of the Council's guidance note for including trees in TPOs states:

"

The tree(s) must be highly significant when viewed from a public place such as a road or footpath. Trees that can only be viewed from a neighbouring property and are not significant in the wider landscape cannot be included. …

The tree must be safe and healthy, capable of a reasonably long life and not be contributing to any known damage to buildings…

It must be expedient to include the trees in a TPO. This usually means that they are under some form of threat, such as from a proposed development. We will not normally protect trees at individual properties, which are perceived as being under threat from more general risks such as changes of ownership. …"

Factual background to the bias ground

38. I have stated that Mr Weeks is a local Councillor and the Chairman of the Council's Planning Committee. He lives at the Willows, Cricket Hill. It is common ground that Mr Slavchev and Mr Weeks discussed the various proposals for development of the land at Manor Farm on several occasions after the applicant bought the property, and that, on 8 December 2011, Mr Slavchev visited Mr Weeks's property. I have referred to Mr Weeks's evidence that, having met Mr Slavchev on several occasions, he considered that the established trees on Manor Farm were not at risk.
39. Mr Slavchev (first statement, paragraph 4, second statement, paragraph 2) stated that Mr Weeks's property is "opposite the land at Manor Farm" and, from the room in which Mr Slavchev sat when he visited Mr Weeks on 8 December 2011, it was possible to see the land at Manor Farm through the gaps in the hedge, and the willow trees were clearly visible from Mr Weeks's driveway. Mr Weeks's evidence (statement, paragraph 6) is that, at their closest point, the trees that are subject to the TPO are over 400 metres from his house, and screened by two intervening field boundaries consisting of tree lines and hedges. He stated that the TPO trees were not visible from his house, and "have no bearing on [his] well-being, amenity, outlook or property value". He observed that most of the houses in Finchhampstead Village lie within a 400 metre radius of his home, and that he could not undertake his role as an elected representative if he was precluded from considering items at that distance from his home.
40. In his first statement, Mr Slavchev stated that, after the Planning Committee's meeting on 25 July he recalled an occasion in December 2011 when he was sitting with Mr Weeks in his kitchen. Mr Weeks pointed to the paddock outside the kitchen window, which was about to change ownership, and said to him "in general terms, that he could stop anyone building a house on the paddock by getting a Tree Preservation Order on the oak tree which was situated in the paddock". It is clear from both Mr Weeks's statement and Mr Slavchev's second statement that he was mistaken in this, because the paddock and the oak tree Mr Slavchev referred to were visible from the front of Mr Weeks's property, but not from his kitchen windows. Mr Weeks's evidence is that they "briefly discussed the sale of the paddock and any potential development on the land". Mr Weeks stated that he "noted that, as there was a large oak tree on the land, WBC may restrict or limit certain development to protect the oak tree". He stated that he "discussed WBC's (not [his]) ability to frustrate or condition development through the TPO process. The conversation did not relate to the land or trees at Manor Farm." Mr Slavchev's second statement stated that on 8 December it became "very clear" to him that Mr Weeks was stating "that the Council could use a TPO to prevent development and that there was nothing any person could do to prevent the Council from making a TPO".
41. Mr Slavchev's evidence is also that he had been "warned on a few occasions" by Mr Weeks that he was acting in the interests of the local residents "because they are the ones that vote for him, and I am not on the voting register". He also stated (first statement, paragraph 8) that he knew from talking to neighbours that Mr Weeks had been advising them not to object to everything done on the land at Manor Farm because that would get them nowhere, and they should concentrate on things that they can achieve. In his second statement, Mr Slavchev stated (paragraph 7) that the exact words Mr Weeks used were "I have to warn you, I am acting on behalf of the local residents".
42. Mr Slavchev also referred to a campaign behind a small group of local residents to destroy his development of the land, and his belief that those individuals were given the advice to request a Tree Preservation Order "as they are easily imposed by a local authority". Mr Weeks stated that he had also received the anonymous and inaccurate circulars, and that he had repeatedly suggested to Mr Slavchev that he held a local meeting to explain his intended plan in order to allay the many local fears and rumours, but that Mr Slavchev did not do this. Two of these circulars were headed "the industrialisation of Manor Farm, Finchhampstead". The third was headed "stop the industrialisation of Manor Farm". One of them invited readers to look at the applicant's current operation in Abingdon on Google Earth.
43. On these issues, Mr Weeks's evidence is that he never "warned" Mr Slavchev, but that he had reminded him that he was elected to represent the views of local residents. He stated that more than 200 residents objected to the various planning applications at Manor Farm, and he had to "robustly but fairly represent their views and concerns to both WBC and the [applicant]." Mr Weeks agreed that he had repeatedly advised residents to concentrate on the important planning issues. His evidence referred to his being engaged in months of discussions, communications and meetings with residents and Mr Slavchev to try and achieve some compromise on the various planning matters.
44. It is significant that neither of Mr Slavchev's statements explicitly states that it was Mr Weeks who advised the residents behind the campaign to request a Tree Preservation Order. Mr Fletcher, however, submitted that this was the natural inference of Mr Slavchev's evidence. Mr Weeks's evidence (paragraph 4) is that he was emailed a copy of the provisional TPO on 3 February 2012, but that until he received that email, he was completely unaware that a TPO was being prepared.
45. Mr Slavchev's second statement (paragraph 8) stated that he recalled that in the days before the meeting of the Planning Committee on 25 July, he had a conversation with Mr Weeks on the telephone, and that Mr Weeks told him that it was likely the TPO would be confirmed, and he should not waste money on his solicitor attending the committee meeting because it would not make a difference.
46. Mr Weeks stated that eight of the nine members on the Planning Committee were present on 25 July 2012. One member abstained because she had arrived late and missed part of the presentation, and he (Mr Weeks) did not vote as he had concerns which had not been allayed by the officer's and planning chairman's briefing, which had been held on 23 July, or during the course of the Committee meeting. Mr Weeks stated (paragraph 7) that, since his property was not affected in any way whatsoever by the confirmation of this TPO, he did not consider that he should have declared an interest. He had declared an interest in another item on the agenda because it related to an education centre for people with special needs, and he was a non-executive director of the Council's wholly-owned care company, so that it could be said that there was a pecuniary interest.

Analysis of the planning matters

47. There were, as I have stated, three limbs to the submission that it was not open to the Council, in the light of the material before it, to conclude that it was "expedient in the interests of amenity" to confirm the TPO. The first concerned whether there had been tree felling on Manor Farm recently. Mr Fletcher submitted that it was clear from Crown Consultants' report that there had been none, only a degree of pruning work in order to reinstate the hedges. His written submissions referred to paragraph 5.3 of the report, and in his oral submissions he also referred to paragraphs 4.11, 5.4, and the first two sentences of paragraph 8.5.4. These are quoted or summarised at [18], [19] and [23] above. Mr Fletcher contended that the officer's report distorted what Crown Consultants had stated. This was because, in the section of the officer's report on "planning issues" (set out at [28] above), the reference in the final sentence of paragraph 8.5.4 of Crown Consultants' report (quoted at [23] above) to the felling of small self-sown trees was cited. He maintained that this had been "taken out of context", was "not a distillation" of Crown Consultants' report, and that the use made of it was "sophistry". Read in context, it was in fact a reference to pruning.
48. I reject this submission. It is true that Crown Consultants' report contains many statements that there has been no tree felling but only pruning at Manor Farm. That was made clear in the section of the officer's report summarising the objections: see [26] above. Paragraph 8.5.4 of Crown Consultants' report addressed the issue in more detail than in other parts of the report, which simply contain blanket denials of felling. It contrasts "felling" and "pruning". The reference to "felling" in the last sentence cannot be understood as a reference to "pruning". There are other indications in Crown Consultants' report (see paragraphs 8.6.5 and 8.6.7) that self-sown trees are to be treated in a different category. In these circumstances, it was appropriate for the officers to draw the attention of the Committee to the inappropriateness in general of giving different values to trees based on whether they are considered to be planted or "self-sown", as they did in the paragraph reproduced at [28]. It is to be recalled that Ms Ramsey had visited Manor Farm in mid-December, and had found (statement, paragraph 6) that "trees had been felled from the site". In the light of this and the authorities, such as Bullock v Secretary of State for the Environment (1980) 40 P & C R 246 and paragraph 2.1 of the Departmental guidance, the conclusion that tree felling had taken place was well within the scope of conclusions open to the officers and the Council.
49. The second limb to this part of the challenge concerns the roadway and its proposed surface. It was submitted that it was misleading for the notice that accompanied the provisional TPO to state, as it did (see [10]), that the roadway would "potentially cause significant harm to the roots and canopy of trees" and for the officer's report to state (see [28]) that the purpose of the TPO is "to ensure that any road which may be constructed is built so as to minimise impact on the trees in accordance with industry best practice".
50. Mr Fletcher submitted that Crown Consultants disputed the assertion in the notice in detail, that the summary of objections (see [26] above) misrepresented the report, and that the beneficial effects of what the applicant intended to do were not referred to at all. He submitted that, given the nature of the roadway proposed, there was no evidence for the proposition that construction of the roadway would have a detrimental impact and that the officer and the Committee proceeded on a false assumption on an important question of fact. He also submitted that the motivating force behind the TPO was to stop the track, which was an improper purpose, and that there was no logic in this part of the case for a TPO. This is a submission that it was, in this respect, irrational. This submission proceeded on the premise that there was an existing use, as a track, with no protection, and that comparing the roadway proposed with the present position would result in an increase in amenity by protecting the roots, soil and thus the canopy.
51. Again, the officer's summary of the objection dealt with the position if the track was left without surfacing, and what had been proposed by the applicant in the planning application received on 19 April 2012. It is clear that the trees were at risk from the established use of the track by agricultural vehicles. It is also clear that it was common ground that the type of roadway the applicant stated it wished to install would minimise the harm.
52. The relevant circumstances about this site included the fact that Ms Ramsey had, on her visit, found examples of the applicant not following best practice in relation to pruning. This was not disputed by the applicant at the meeting of the Planning Committee. (Although not relevant to the legality of the Planning Committee's decision, I observe that it was also not disputed at the hearing before me). Given all these circumstances, it was open to the Committee to conclude that, notwithstanding the applicant's expression of intention, a TPO was needed to ensure the outcome that the applicant stated it was his intention to achieve. I accept Mr Flanagan's submission that, in the light of the background, the Council was entitled to be cautious about that expression of intention.
53. There was a further strand to the challenge based on the roadway. Mr Fletcher submitted that what Mr Weeks had said to Mr Slavchev about the use of TPOs when they met on 8 December 2011, together with what happened subsequently, enables me to infer that the TPO was issued because of the Council's opposition to the proposed farm track rather than the quality of the trees and any risk to them. Although Mr Slavchev believes this (see second statement, paragraph 6), the material before me does not justify the inference of such a purpose. As far as Mr Weeks's position is concerned, the evidence points the other way. Mr Slavchev met Mr Weeks on several occasions to discuss planning issues relating to Manor Farm. Mr Weeks's evidence (see [7] above) is that the effect of his meetings with Mr Slavchev after the applicant bought Manor Farm was to allay concerns he had previously had that the established trees on Manor Farm were at risk. Moreover, he did not vote in favour of the confirmation of the TPO when the matter later came before the Planning Committee. The suggestion that I should discount this on the ground that the Order had by then been made and the damage done, is unsustainable.
54. The third limb of this part of the challenge concerns the condition of the trees. It was submitted on behalf of the applicant that the Council fell into error because a significant proportion of the trees within the specified area were unsafe or dangerous. It was submitted that it was not open to the Council to make the Order on the basis that the applicant would be able to claim an exemption for those trees which were not worth preserving, or which were dead or dangerous. It was also submitted that the TPO "contravened" and "flies in the face of" the Council's own guidance: as to which see [37] second bullet point. Mr Fletcher submitted that the officer's report did not fairly reflect the evidence, in particular the detailed species by species consideration of the condition of the trees in Crown Consultants' report.
55. I start with Crown Consultants' report. It is true that paragraphs 6.2 (in the section on the Council's guidance) and 9.4 (in the summary section) state respectively that "several of the trees that are the subject of the Order are unsafe, unhealthy and not capable of a reasonably long life" and "many of these trees are in very poor condition and will require ongoing maintenance works in order to improve their condition and reduce risks to farm staff and members of the public using the permissive footpath". However, non-compliance with the guidance is not made out in section 8.6 of the report, which considers the trees on a species by species basis. First, that section addresses the question of whether the trees are "of sufficient quality", rather than the questions of safety and health which are in the Council's guidance, and reflect both the statutory purposes and the Department's guidance. Secondly, with the exception of the ashes which, in paragraph 8.6.4, are stated to be in "poor condition", to be of "low vigour" and in a "state of decline", the report only addresses the question of quality. There are references to "poor quality" in 8.6.3 and 8.6.5 – 8.6.10, but "poor quality" is a different concept to "unhealthy". It is clear from Ms Ramsey's evidence (see paragraph 2) that her examination was for "health" as well as "amenity" and "expediency". The question whether the proportion of the trees which were unhealthy or in very poor condition meant that it was inappropriate for the Council to make an area TPO is one of planning judgment. The Officer's report stated that the trees were "highly visible field boundary trees". The Departmental guidance states (paragraph 3.2 set out at [36]) above) that "the value of a group of trees or woodland may be collective only". The Officer's report summarised the objection as stating that "a number of the trees are not safe and healthy, or capable or reasonably long life", and the Committee had before it the letter of objection from Thrings which set out the criterion in the Council's guidance note. The Committee neither failed to take into consideration the policy, nor, in concluding that the group of trees as a whole contributed to amenity because they appeared to be in good condition, stepped beyond the range of conclusions open to a reasonable Planning Committee.
56. The key concept in section 198 and the Departmental guidance is "expediency". Mr Fletcher's overall submission on "expediency" relied on his submissions on the three matters I have dealt with. My conclusions on those lead inexorably to the conclusion that the Committee's decision on "expediency" was not flawed in law or on a public law ground. The Committee was entitled to take into account the fact that the new owner of Manor Farm was proposing and demonstrating a change in working practices and the position in relation to a roadway over the permissive track (see [50] above). The sub-standard pruning cuts seen by Ms Ramsey on her inspection and identified to the Committee in photographs provided clear evidence of the trees not being under sound arboricultural management. For these reasons, the Committee did not err in concluding that it was expedient in the interests of amenity to make an area TPO on the specified area of land.

The bias ground

57. I turn to the allegation of bias or appearance of bias. I have set out the material factual background to this allegation at [38] – [46]. Mr Fletcher relied on the following matters. The first was that Mr Weeks, the Chairman of the Planning Committee, lives in close proximity to Manor Farm. The second was the conversation between Mr Slavchev and Mr Weeks on 8 December. He submitted this indicated that Mr Weeks regarded TPOs as an unchallengeable way of stopping development, and that it constituted a veiled threat to use a TPO to stop the applicant's development. Thirdly, Mr Fletcher relied on what he described as expressions of support by Mr Weeks for local residents campaigning against the developments proposed at Manor Farm. Those campaigners were responsible for the anonymous circular letters. Mr Fletcher characterised the statements made by Mr Weeks about his position as a Councillor and his advice to the residents' group as an explicit threat to use the making of a TPO to stop development at Manor Farm. He invited me to conclude that Mr Weeks was the eminence grise behind the making of the TPO, or that he gave the appearance of being such. For that reason, he invited me to disregard the fact that Mr Weeks did not vote at the meeting.
58. On behalf of the Council, Mr Flanagan submitted that there was no bias or appearance of bias. First, the location of Councillor Weeks's residence did not give rise to any bias because his property does not border Manor Farm, the trees are not, or not directly, visible from his property, and neither the value nor the amenity of his property is affected by the TPO. He was, as a local councillor, a local resident. Planning matters are determined by local councillors precisely because of their appreciation of the local area and the issues relevant to it. Secondly, the discussion on 8 December did not give rise to any bias or appearance of bias. It was a general discussion about TPOs. Mr Slavchev had consulted Mr Weeks about a number of matters relevant to planning issues in the area. Mr Weeks was the local councillor representing the area in which Manor Farm was situated. Whether or not Mr Slavchev had a vote in the local area, it was entirely appropriate for such conversations to take place in general terms. Mr Flanagan submitted that there is no foundation for considering that this conversation gave rise to an appearance of bias. He also relied on the fact that Mr Weeks did not vote for the confirmation of the TPO. This, he submitted, clearly negated any risk of an appearance of bias. Finally, he submitted that the applicant, through Mr Slavchev and Mr Madden, the applicant's solicitor, had full knowledge of all the facts relevant to the alleged bias before the Committee meeting on 25 July. They were present and neither objected to Mr Weeks's participation. Accordingly, if, contrary to his primary submission, there was an appearance of bias, it had been waived.
59. The starting point in any consideration of bias in this context is the test stated by Lord Hope in the decision of the House of Lords in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 at [103], namely whether "the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility" of bias. So, what is at issue is whether, viewed objectively by a person with knowledge of all the facts, the circumstances would have led such an observer to conclude there was a real possibility that the Planning Committee was biased.
60. Ever since the decision of the House of Lords in Franklin v Ministry of Town and Country Planning [1948] AC 87, the courts have recognised that those subject to democratic accountability are not to be treated in relation to the requirements of independence and impartiality as if they were judges or persons whose primary function is adjudicatory. However, it is also clear from, for example, R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746, that the test remains that set out in Porter v Magill [2001] UKHL 67 and Condron v National Assembly for Wales [2006] EWCA Civ 1573. What is to be considered is whether the fair-minded and informed observer would consider that there was a real possibility that the individual or body concerned was biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant issues. In short, democratically accountable decision-makers who have been elected to provide and pursue policies are entitled to be predisposed to determine applications in accordance with their political views and policies, provided they have regard to all material considerations and give fair consideration to relevant points raised with them. Similarly, they are (see R (Island Farm Development Ltd) v Bridgend County Borough Council [2006] EWHC 2189 (Admin) at [30], per Collins J, and R (Lewis) v Redcar and Cleveland Borough Council at [62]) entitled to take into account the views of their constituents, and to communicate with their constituents.
61. Mr Fletcher invited me to infer from the evidence before me that Mr Weeks was the eminence grise behind the TPO. For the reasons I have given, I cannot conclude, on the evidence before me, that he was. The inference that I am invited to make by Mr Fletcher is directly contrary to Mr Weeks's evidence that he first heard of the TPO when he received the notice in February. Secondly, Mr Weeks was entitled to take into account the views of his constituents and members of the residents' group, provided he took into account and had regard to all material considerations and gave fair consideration to the application. Thirdly, there is evidence that Mr Weeks's earlier inclination to seek a protective TPO was allayed by his contact with Mr Slavchev after the applicant had bought Manor Farm. He also stated that he did not vote for the TPO "as I had concerns which had not been allayed by the officers and the Planning Chairman's briefing…or during the course of the Committee meeting": see statement, paragraph 5.
62. I have concluded that the submission that a reasonable observer in full knowledge of these facts would consider that there was a real possibility of bias is unsustainable. In R (Island Farm Development Ltd) v Bridgend County Borough Council, in a passage approved by Pill and Rix LJJ in R (Lewis) v Redcar and Cleveland Borough Council, Collins J stated that, in the case of Councillors, "unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision". In this case, there is, in fact, positive evidence to show that there was an open mind. I reject the challenge based on bias or apparent bias.
63. I add, by way of a footnote that, in the light of the evidence of Mr Weeks and the absence of any attempt to cross-examine him, it was (see Carnwath LJ in R (Berky) v Newport City Council [2012] 2 P & C R 12 at [30]) probably not open to the applicant to allege actual bias. Additionally, both that case and R (Lewis) v Redcar and Cleveland Borough Council establish that the appearance of bias by one member of a Planning Committee will not, in itself, suffice.
64. In these circumstances, it is not necessary to consider Mr Flanagan's submissions based on section 25 of the Localism Act 2011, waiver, and R (Berky) v Newport City Council [2002] EWCA Civ 378 at [30], [46] and [58]. It suffices to say that section 25 is of relevance because (see section 25(1)(a)) in this case as a result of an allegation of bias, "there is an issue about the validity of a decision of a relevant authority". Although the ground of challenge is not pre-determination, the issue in the bias cases considered in R (Lewis) v Redcar and Cleveland BC is whether previous expressions of view mean that there is a closed mind. Mr Fletcher invited me to say that here the issue is different – it is whether, taking all the circumstances together, there is an appearance of bias. Section 25(2), which provides that a decision-maker is not to be taken to have appeared to have a closed mind just because of a prior indication of what view he or she took, or would or might take, in relation to a matter, is relevant. While that provision will not preclude a court from looking at conduct in the round, as I have stated, in this case, the evidence, far from supporting the inference that Mr Fletcher invited me to make, points the other way.
65. I would also have rejected the bias allegation on the ground of waiver. Mr Fletcher's written submissions relied on the fact that Mr Slavchev was no more than a member of the public attending a Planning Committee, and was not in a position to intervene to raise points of procedure. He was, however, accompanied by the solicitor representing the company of which he is the Managing Director, and who did address the meeting. All the facts relied on in these proceedings were known to Mr Slavchev, and presumably to his solicitor, at that time. No request that Mr Weeks should recuse himself was made. No complaint about the interest which is alleged to be improper was made. Mr Fletcher submitted that, while it would have been open to the applicant to get Mr Weeks to recuse himself in July, by then the damage was done because the temporary TPO had been made. This submission, however, depends on accepting the inference which I have rejected: that it was Mr Weeks who instigated the making of the TPO.
66. For these reasons, this application is dismissed.

Note 1   The guidance cites Bullock v Secretary of State for the Environment [1980] 4 P & C R 246, where recently coppiced trees were held to be “trees” under the Act, and Phillips J stated that “anything which ordinarily one would call a tree is a ‘tree’ within…the Act”.    [Back]