Tree preservation order — Amendment from an area order to woodlands order — Whether local planning authority can extend scope by modification — Whether the woodlands order made in September 1994 was a modification of the area order made in April 1994 or whether it was a different order
The appellant
was the owner of land subject to a tree preservation order made in April 1994
pursuant to the Town and Country Planning Act 1990, sections 198, 199 and 201.
In September 1994 the council confirmed the order subject to modification, inter
alia, from an area order to a woodland order. The appellant challenged the
confirmed order on the grounds: (1) that it was beyond the powers granted by
section 199 of the 1990 Act to modify the order; and, (2) the council failed to
take into consideration the objections made, in accordance with Regulation 8(2)
of the Town and Country Planning (Tree Preservation Order) Regulations 1969.
The appellant appealed the decision of the court below dismissing his
application.
The change
from an area to a woodland order had the effect of producing ‘a different
animal’ by bringing within the scope of the TPO new trees and thus ensuring not
merely that existing trees should be preserved and allowed to regenerate, but
to restore the land to its original state. The judge was wrong to conclude
there had been no more than ‘a change of label over the same land and the same
trees’. The modification was outside the powers of section 199(1): see p93D.
The appellant was given no opportunity to persuade the local planning authority
that most of the area was not ‘woodland’ and that a ‘woodland’ order would be
inappropriate. The local planning authority have no power to convert to
‘woodland’ land which was not woodland by the making of a ‘woodland tree
preservation order’. To do so would be unwarranted interference with the rights
and powers of the land owner: see p94C. The power to modify should not be
construed narrowly or strictly. The woodland order was so different in its
operation and effect from an area order that it fell outside the wide ambit of
the power to modify: see p94G.
to in the judgments
Bernard
Wheatcroft Ltd v Secretary of State for the
Environment (1980) 43 P&CR 233; [1982] JPL 37, CA
Britnell v Secretary of State for Social Security [1991] 2 All ER 726
Bullock v Secretary of State for the Environment (1980) 40 P&CR
246; [1980] 1 EGLR 140; 254 EG 1097
McKiernon v Chief Adjudication Officer The Times November 1 1989
R v Secretary of State for the Environment, ex parte Lancashire
County Council [1994] 4 All ER 165
Stevens v General Steam Navigation Co Ltd [1903] 1 KB 890
Appeal against
order of Mr Nigel MacLeod QC, sitting as a deputy judge of the Queen’s Bench
Division
This was an
appeal against an order of Mr Nigel MacLeod QC, sitting as a deputy judge of
the Queen’s Bench Division, dismissing the appellant’s application pursuant to
section 288 of the Town and Country Planning Act 1990 to quash the decision of
the respondent council confirming a tree preservation order served on the
appellant.
and Keith Wylie (instructed by Metcalfe & Co, of Bordon) appeared for the
appellant, Glynn Evans.
Lieven (instructed by the solicitor to Waverley Borough Council) appeared for
the respondents.
following judgments were delivered.
HUTCHISON LJ: This is an appeal by Mr Glynn Evans from the order of Mr Nigel
MacLeod QC, sitting as a deputy High Court judge, whereby on March 23 1995 he
dismissed Mr Evans’s application pursuant to section 288 of the Town and
Country Planning Act 1990 to have quashed a tree preservation order dated
September 23 1994.
By his
original notice of motion Mr Evans raised a number of grounds, all of which
were rejected by the learned judge. On this appeal Mr Brian Ash QC for Mr Evans
has really taken only one point, which is that the judge was wrong to hold that
the respondent council had the power to modify the tree preservation order by
substituting, on confirmation, an order in terms of ‘woodlands’ for what had
been specified in the original order, namely :’Trees Specified by Reference to
an Area’.
The material
facts are fully and clearly rehearsed in Mr MacLeod’s judgment and for the
purpose of understanding the issues arising on this appeal the following
summary will suffice:
(1) Mr Evans
owns a property near Farnham called Bourne Mill. Over Easter 1994 expressions
of concern from residents in the area about work that he was doing on that land
led the local authority to make a tree preservation order (‘TPO’) in respect of
the site. It was dated April 8 1994 and specified as the ground for the order
that it was in the interests of the visual amenities of the area. The trees
affected were designated in the first schedule under the second of the four
headings ‘(Trees Specified by Reference to an Area)’ in the following words:
Area of mixed
broadleaved trees (including willow and alder) and conifer
The area was
delineated on a plan attached to the order.
(2) Mr Evans,
who objected to the order (which by virtue of a section 201 direction took
immediate effect) notified his objection pursuant to
Regulations 1969 (SI 1969 No 17). His notice of objection was dated May 5 1994
and was supported by a very full report of April 28 1994 by Mr Allen, a tree
expert.
(3) On July 8
1994 there was a meeting at the council offices between Mr Evans and his
solicitor and various council officers, when his objections and the council’s
response to Mr Allen’s report were discussed. Before the judge it was contended
that at that meeting Mr Evans was led to believe that there would be further
negotiation before the order was confirmed, but the judge rejected that
contention and his rejection of it is not challenged. What is, however, undoubted,
is that neither at that meeting nor at any time prior to the service of the
confirmed order was Mr Evans told that the original order was to be modified in
the manner about to be described. It is clear that at the meeting Mr Evans said
that he did not object to there being a TPO of the appropriate kind, which he
contended was an order specifying individual trees or one specifying groups of
trees. The council, however, were contending that in the exceptional
circumstances of the case an area order was justified.
(4) On
September 12 the planning subcommittee considered the order and in doing so
discussed Mr Evans’s objections and the planning officer’s response to them.
The planning officer’s report concluded as follows:
In view of the
above reasoning, supported by DoE guidance, it is the view of the officers
that, notwithstanding the objection points raised, the area of trees as
referred to in the Order … warrants full protection provided by a Tree
Preservation Order.
Your officers
consider it prudent that Order should be modified to remove the area shown
hatched on the plan annexed to this report for the reason that this area
already contains individual trees covered by a previous Order.
It is also
considered to be more appropriate to change the Order from an ‘Area Order’ to a
‘Woodland Order’ since this is considered to be more relevant.
Nothing turns,
for the purposes of this appeal, on the point about the previous order referred
to in the second paragraph of the above quotation.
(5) So it was
that, when on September 23 the TPO was confirmed, the designation of the
affected trees in schedule 4 was altered by striking out what had appeared
under the heading ‘Trees Specified by Reference to an Area’ and substituting,
under the heading ‘Woodlands’ the words:
Woodland
comprising mixed broadleaved trees (including willow, alder, ash and sycamore)
and a Scots Pine
Statutory
and other relevant provisions
(a) Powers in relation to
TPOs
The material
sections of the Town and Country Planning Act 1990 are set out below:
198(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’.
(3) A tree
preservation order may, in particular, make provision —
(a) for prohibiting (subject to any exemptions
for which provision may be made by the order) the cutting down, topping,
lopping, uprooting, wilful damage, or wilful destruction of trees except with
the consent of the local planning authority, and for enabling that authority to
give their consent subject to conditions;
…
199(1) A tree preservation order shall not take effect until it is
confirmed by the local planning authority and the local authority may confirm
any such order either without modification or subject to such modifications as
they consider expedient.
(2) Provision
may be made by regulations under this Act with respect —
(a) to the
form of tree preservation orders, and
(b) to the
procedure to be followed in connection with the making and confirmation of such
orders.
(3) Without
prejudice to the generality of subsection (2), the regulations may make
provision —
(a) that, before a tree preservation order is
confirmed by the local planning authority, notice of the making of the order
shall be given to the owners and occupiers of land affected by the order and to
such other persons, if any, as may be specified in the regulations;
(b) that objections and representations with
respect to the order, if duly made in accordance with the regulations, shall be
considered before the order is confirmed by the local Planning authority; and
(c) that copies of the order, when confirmed by
the authority, shall be served on such persons as may be specified in the
regulations.
Section 201
permits a local planning authority to direct that a TPO shall take effect
immediately without previous confirmation. Section 210 contains provisions for
the imposition of penalties on persons who contravene a TPO.
(b) 1969 regulations
The following
are the material regulations for present purposes:
Form and
contents of order
4.(1) An
order shall be in the form (or substantially in the form) set out in the
Schedule hereto.
(2) The order
shall define the position of the trees, groups of trees, or woodlands to which
it relates, and for that purpose shall include a map.
Procedure
This
regulation which it is unnecessary to cite provides for the deposit of the
order and map for inspection, and their service on interested parties including
in particular the owners and occupiers of the land affected together with a
notice stating the grounds of the making of the order and the right to object.
6. [Revoked.]
Objections
and Representations
7.(1) Every
objection or representation with respect to an order shall be made in writing
to [the authority, and shall state the grounds thereof] and specify the
particular trees, groups of trees, or woodlands in respect of which it is made.
(2) An
objection or representation shall be duly made if it complies with paragraph
(1) of this regulation and is received by [the authority] within 28 days from
the date of the service of the notice of the making of the order.
Consideration
by the Minister
8.(1)
[Revoked.]
(2) The
authority shall, before deciding whether to confirm the order, take into
consideration any objections and representations duly made in accordance with
regulation 7 hereof, and, if a local inquiry is held, the report of that
inquiry.
The
regulations also contain in a schedule a model form of TPO. That model form
itself contains a first schedule in which are said to be specified the trees
affected by the order. That first schedule contains the four specific heads
particularly germane to this case, which are the following:
Trees
Specified Individually
Trees
specified by Reference to an Area
Groups of
Trees
Woodlands
Under each
heading is a space for description: and the model form gives examples of
appropriate descriptions.
(c) Rights of challenge
Section 284 of
the Act provides that, save as may be provided in that part of the Act the
validity of, inter alia, a TPO shall not be questioned in any legal
proceedings whatsoever. The qualification is found in section 288 which
provides as follows:
288(1) If any person —
(a) is aggrieved by any order to which this
section applies and wishes to question the validity of that order, on the
grounds —
(i) that
the order is not within the powers of this Act, or
(ii)that any of the relevant
requirements have not been complied with in relation to that order; …
… he may make
an application to the High Court under this section.
(2) Without
prejudice to subsection (1), if the authority directly concerned with any order
to which this section applies, … wish to question the validity of that order or
action on any of the grounds mentioned in subsection (1), the authority may
make an application to the High Court under this section.
…
(4) This
section applies to any such order as is mentioned in subsection (2) of section
284 …
(5) On any
application under this section the High Court — …
(b) if satisfied that the order or action in
question is not within the powers of this Act, or that the interests of the
applicant have been substantially prejudiced by a failure to comply with any of
the relevant requirements in relation to it, may quash that order or action.
…
(7) In
relation to a tree preservation order … the powers conferred on the High Court
by subsection (5) shall be exercisable by way of quashing or (where applicable)
suspending the operation of the order either in whole or in part, as the court
may determine.
Ministerial
guidance
As is usual in
planning matters, the statutory provisions as to TPOs have been supplemented by
guidance in the form of circulars and a Best Practice Manual. The
learned judge considered Circular 36/78 — Trees and Forestry — from the
Secretary of State and both a draft Best Practice Manual issued for
consultation purposes and the final version which superseded it, entitled Tree
Preservation Orders, a Guide to the Law and Good Practice, issued in
October 1994. We were referred to a number of statements in these documents.
What they amount to can be stated quite shortly and with a minimum of
quotation.
In Circular
36/78 the Secretary of State deals with TPOs in sections VI and VII. In para 41
he makes clear that a woodland order may cause difficulties by interfering with
essential management. Para 43 records the Secretary of State’s view that
ordinarily orders should be made in respect of individual trees, groups of trees
or woodlands (that is to say the three categories mentioned in section 198(1))
and that an area order is intended only as an alternative way of specifying
scattered trees; that it has drawbacks and is to be used with the utmost
discrimination; and that it is something that it is, in his opinion, quite
inappropriate to make as a blanket order with a view to maintaining control
over an extensive area.
Para 57,
relating to modification, variation and revocation of orders, contains the
following advice:
The
Secretaries of State take the view that the scope for using their power to
modify orders for the correction of errors is very limited. Thus, if an order
mis-states the number of trees in a group, or wrongly identifies the species,
or where the map wrongly identifies the site of a tree, it is likely that the
error could only be corrected if it was decided not to confirm the order and a
fresh order was made … The Secretaries of State consider that they have no
power to extend the scope of an order by modification by including additional
trees or to reclassify the trees concerned, for example from a group to
individual trees.
I do not
consider it necessary or indeed appropriate to quote from the draft advisory
document. It contains statements which were modified in the final version, from
which however, I shall cite three short passages.
In the
preface, under the heading ‘The Law’ is this statement:
This guide
gives advice on the law as it currently stands in England. Anyone relying on it
should bear in mind that it is advice only and has no legal force.
It supplements existing guidance in Department of Environment Circular 36/78,
Trees and Forestry.
Section 3.16
contains advice in relation to areas very much along the lines of para 43 of
the circular, but section 3.17 says:
In the
Secretary of State’s view, the area classification should not be used except in
an emergency and then only as a temporary measure until the trees in the area
can be assessed properly and reclassified.
Under the
heading ‘Confirming the TPO Subject to Modifications’ appears para 3.36, which
reads as follows:
The Secretary
of State considers that the LPA’s scope for using their power to modify TPOs in
other ways is limited, though the legislation provides no express restrictions.
For example, LPAs should not add new trees to a TPO by modification. They
should also consider carefully whether they can reasonably modify a TPO to
correct errors, but they might use their powers, for example, where the number
of trees in a group had been overstated or the species incorrectly stated.
The
judge’s approach and conclusions
The learned
judge reminded himself that the guide had no legal force. He plainly and
rightly thought the same of Circular 36/78. However, he considered that it was
not necessary for him to decide whether para 3.36 of the guide was too narrowly
stated since he did not find any necessary conflict between the action taken in
this case and that paragraph. He then said:
The true
question for consideration is what the words of the statue itself allow. It
seems to me that the words of section 199(1) are very wide: ‘subject to such
modifications as they consider expedient’. The ordinary meaning of the word
‘modifications’ does include the making of changes. I can see no justification
in the words of the statue which require the limitation of that meaning to
‘restrictive changes’. I am unable to conclude that any modification which
involves an extension of the scope of the order, however modest an extension,
is outside the powers given under section 199(1). Although the cases of Stevens
v General Steam Navigation Co Ltd [1903] 1 KB 890 and Britnell v Secretary
of State for Social Security [1991] 2 All ER 726 are concerned with
different legislation I do find that they lend general support to my primary
interpretation of the legislation before me. I do, however, acknowledge that,
as was held in Britnell, the power to modify should be narrowly and
strictly construed. This is particularly important for the reasons which Mr
Wylie pointed out. The provisions of the 1990 Act give power to the local
authority which impose substantial restrictions on a landowner. The Act
provides a consultation process based upon the provisional order and for the
final order to take account of that consultation. So it is right that exercise
of the power to modify should be narrowly and strictly construed, but it should
not be so narrowly and strictly construed as to exclude every modification
which is properly described as an extension of the scope of the original order.
Whether it is sufficiently significant an extension to take it outside the
narrow and strict interpretation of the power
The learned
judge then proceeded to consider whether the change from an area order to a
woodland order was so extensive as to be outside the scope to modify. He
mentioned the submission on Mr Evans’s behalf that the important difference in
the impact of the two orders was that whereas an area order protects only trees
on the site at the date it is made, and therefore does not affect either new
trees or regenerated trees, a woodland order does affect those two categories
as well as existing trees, and is therefore much more restrictive. He referred
in this connection to the decision of Phillips J in Bullock v Secretary
of State for the Environment (1980) 40 P&CR 246 on the strength of
which he concluded that the word trees in the Act comprised anything that ordinarily
one would call a tree, including coppices and the stools of cut trees which can
regenerate, but not bushes or shrubs. He noted that there is a right to apply
for consent to cut trees affected by an order. He continued, in a passage which
embodies his decision on what is now the sole issue in the case, as follows:
The
circumstances of the present case are that, as a matter of emergency, the local
planning authority sought to protect an area which was a wooded area, and made
an emergency provisional order which described the trees by reference to an
area, but with the more detailed description which I have set out. After the
emergency was over that authority took the view that a more accurate
description of that wooded area would have been ‘woodlands’ rather than an
‘area’, but with the slightly changed detailed description which I have also
set out. The land in question includes a large number of individual trees,
including stools or felled trees, and covers for all relevant purposes the same
area. In my judgment, these circumstances indicate that the modification is one
which should not be regarded as so significant as to take it outside the powers
of section 199. Moreover there would be nothing to prevent the landowner
removing the scrub and shrubs to prevent the ‘land running wild’ (see Bullock).
In substance what has happened in this case is that there has been a change of
label over the same land and the same trees, and I am satisfied that the change
did fall within the powers of modification under section 199. It is therefore
unnecessary for me to determine the second point upon which this first ground
depends, that is whether the change should or should not be classified as an
extension.
Submissions
in the Court of Appeal
Mr Ash’s
primary submission was that the Act did not give the respondents power to
reclassify the trees affected from area to woodland. That submission was in
turn based on broader and narrower alternative propositions, namely:
(i) that it
was not permissible to make any change at all in classification; or
(ii) that it
was not permissible to make a change where the change was detrimental, as it
was where the landowner had had no opportunity for consultation.
Mr Ash
asserted that the judge was right to have adopted from
modification should be narrowly and strictly construed. Since this is disputed
by Miss Nathalie Lieven for the respondents, it is necessary to consider that
authority. The facts of the case are somewhat complicated and for present
purposes it is sufficient to say that the outcome depended on whether a power
given by section 89 (1) of the Social Security Act 1986 by regulation to modify
that and other Acts had been validly exercised by the making of regulations
which were said to have a retrospective effect. Lord Keith, citing the other
case on which in this context the learned judge relied, Stevens v General
Steam Navigation Co Ltd, and also the case of McKiernon v Chief
Adjudication Officer The Times November 1 1989 said:
The judgments
[in the latter case] contain passages to the effect that a power to modify the
provisions of a statute should be narrowly and strictly construed, and that
view is indeed a correct one.
As the context
suggests, McKiernon was another case involving a power to modify a
statute by regulations. Stevens v General Steam Navigation Co Ltd,
however, was not such a case and it is significant that the judgment of Collins
MR contains no such restrictive words. The point at issue in that case appears
sufficiently from the passage in the judgment of Collins MR which Lord Keith
cited in his speech in Britnell:
Unless it can
be said that the provisions of s104 of the Act of 1901, the effect of which is
to include in the word ‘factory’ all machinery or plant used in the process of
loading or unloading or coaling any ship in any dock, harbour, or canal, cannot
be described as a modification of the repealed s23 of the Factory and Workshop
Act 1895, it must be conceded that by reason of the Interpretation Act the
provisions of the Act of 1901 have been incorporated in the definition of a
factory in the Workmen’s Compensation Act. Is then the introduction of the word
‘harbour’ so radical an alteration of the previously existing section as not to
fall within the term ‘modification’? Modification implies an alteration, and it
seems to me to be as much a modification of that which previously existed that
the word harbour should be added as if a limitation had been imposed by the
removal of a word from the definition. The ship in this case was unloading in a
river and not in a dock, and on the legislation as it existed before the
Workmen’s Compensation Act it would not have fallen within the scope of that
Act. Then came the change introduced by the Act of 1901, and, having regard to
the terms of that Act, I cannot doubt that it was introduced for the purpose of
amending the Workmen’s Compensation Act. The Legislature must be taken to have
been fully acquainted with the provisions of that Act which have reference to
the Factory Acts and with the decisions thereon, and the Act of 1901 seems to
me to have been passed with the intention of altering the existing state of
things by a modification of the Factory Act of 1895. This intention the
Interpretation Act, 1889, enabled the Legislature to carry out in the way in
which it has been carried out, for in my opinion there is no reason to limit
the word ‘modification,’ which is equally applicable whether the effect of the
alteration is to narrow or to enlarge the provisions of the former Act.
It seems to me
that Miss Lieven is correct when she argues that these cases are not authority
for the proposition that any provision in a statute giving powers of
modification is to be construed narrowly and strictly. What they show is: (i)
that a power to modify confers a right to enlarge as well as to restrict the
ambit of that which is modified; and (ii) that a power to modify a statute
should be narrowly and strictly construed. I do not think it would be right to
treat the provision contained in section 199(1) as one which must be narrowly
and strictly construed and in this I differ from the learned judge.
Mr Ash also
drew out attention to R v Secretary of State for the Environment, ex
parte Lancashire County Council [1994] 4 All ER 165, where the court had to
consider the provisions of section 17(1) of the Local Government Act 1992,
which provides:
Where the
Local Government Commission submit to the Secretary of State a report on a
review together with its recommendations, he may, if he thinks fit, by order
give effect to all or any of the recommendations, with or without modifications.
By section
28(1) of that Act, the word modifications included additions, alterations and
omissions.
Jowitt J in
the course of his judgment, said (at p173):
It is clear
that although the Secretary of State has wide powers to modify the commission’s
recommendations, he cannot transform them so that they become a different
animal. It is a question of degree. Although, therefore, he might modify a
recommendation of no change by, for example, altering a boundary, it is
difficult to see how he could lawfully modify a recommendation for no charge so
that it became a recommendation for change from a two-tier to a unitary
structure for local government.
I consider
that this is a helpful and practical way of stating the test in those cases
where the power to modify is expressed in terms which are unrestricted either
by express language or considerations such as applied in Britnell, and I
adopt it.
Mr Ash
submitted that the change from designation by area to designation as woodland
produced ‘a different animal’. This was because of the factor already
mentioned, namely that whereas an area order affected only trees existing at
the time of the order was made, a woodland order caught all trees, including
those first appearing after the date of the order. It was therefore very much
more onerous in that it prevented the landowner — unless he first obtained
consent — from the ordinary management of his land. Even if — which Mr Ash did
not concede — a variation from a group designation to a designation by
reference to individual trees within that group would be permissible, the
change in the present case was far more fundamental, because of this added
burden in relation to new trees. It was, submitted Mr Ash certainly more than a
mere change of label.
In support of
these arguments Mr Ash drew our attention to the
referred, and which I should now cite:
While orders
are appropriate to secure the protection of individual trees or small groups,
an order on a woodland can render essential management work — which may include
regular felling or thinning — difficult and cumbersome so that owners may be
induced by an order to allow their woodland to run derelict. It is better,
therefore, for authorities to seek agreements with landowners for the proper
management of their woodlands using grants available from the Countryside
Commission or the Forestry Commission’s small woods scheme (see Section II),
and to use orders as a last resort.
Mr Ash also
emphasised the distinction drawn between the three groups — ‘tree, groups of
trees or woodlands’– in section 198(1), and the fact that that distinction was
perpetuated in the regulations (see regulations 4 and 7) and in the model form
of order.
Developing his
submissions as to the onerous consequences of designation as woodlands, Mr Ash
relied on an authority already mentioned, that of Bullock where Phillips
J said:
… anything
that ordinarily one would call a tree is a ‘tree’ within this group of sections
in the Act …
He argued
that, however small or young a tree, provided it was undoubtedly a species of
tree and not a shrub or bush, it would be caught by the woodlands order.
Implicity he submitted that even if, on the basis of the de minimis
principle, one could disregard the smallest seedlings, a sapling of a year or
two’s growth would certainly be a tree.
Mr Ash placed
particular reliance on the consideration that there is no requirement that the
planning authority should consult in relation to those modifications which it
makes. While he accepted that, in many cases, the discussions that would follow
an objection would in practice include discussion of proposed modifications, he
emphasised that it will not always do so — as indeed is exemplified by the
present case. In this connection he referred us to the observations of Forbes J
in Bernard Wheatcroft Ltd v Secretary of State for Environment
(1980) 43 P&CR 233. That was a case involving the extent to which the
Secretary of State might without the necessity for a fresh inquiry allow an
appeal against a refusal of permission to develop by granting permission in
respect of a part of the site and a lesser number of houses. It will be seen,
therefore, that the decision is not directly in point in the present case but
Mr Ash invited us to be guided by the following statement of principle at p241:
I conclude,
for my part, that there is no principle of law that prevents the Secretary of
State from imposing conditions that have the effect of reducing the permitted
development below the development applied for except where the application is
severable. The Secretary of State clearly directed himself that there was such
a principle and thus fell into error, and his decision must be quashed.
I should add
a rider. The true test is, I feel sure, that accepted by both counsel: is the
effect of the conditional planning permission to allow development that is in
substance not that which was applied for? Of course, in deciding whether or not
there is a substantial difference the local planning authority or the Secretary
of State will be exercising a judgment, and a judgment with which the courts
will not ordinarily interfere unless it is manifestly unreasonably exercised.
The main, but not the only, criterion on which that judgement should be
exercised is whether the development is so changed that to grant it would be to
deprive those who should have been consulted on the changed development of the
opportunity of such consultation, and I use these words to cover all the
matters of this kind with which Part III of the Act of 1971 deals.
Miss Lieven,
in response to these arguments, began by emphasising that TPOs often have to be
imposed as a matter of great urgency because vulnerable trees are in immediate
danger. This means that the planning authority may have little opportunity for
consideration before making the initial order — hence , she submits, the power
to modify. In this case a large number of trees had been cut down, over a
holiday weekend. Mr Evans was not prohibited from doing that but his conduct
provoked necessarily urgent action, and the council understandably had recourse
to an area order covering the whole site. There could be no challenge to the
appropriateness of that order, which protected every extant tree on the site.
Its whole purpose, she submitted, was to ensure that the area would be
protected from further clearing and that the trees that had been cut but the
stumps of which remained viable could regenerate. She drew our attention to
passages in the affidavit of Mr Taplin, the council’s development control and
policy manager, in which he deposed to the serious devastation that had been
inflicted, and the planning considerations that had dictated the need to make
the original order on amenity grounds.
When it came
to confirmation, Miss Lieven submitted, the planning authority were entitled to
modify the order by changing to the woodland designation. Such a modification,
she conceded, could involve important changes in some cases, but did not do so
in the present case, because it covered the same area, on which there was
already a very large number of trees, and so the difference in effect was
small. The question as to what modifications are permissible must, she argued,
be looked at with the facts of the particular case in mind: and the authority
were entitled as a matter of judgment to conclude that on this site it made
little difference; so also was the judge.
I have already
mentioned and indicated my acceptance of Miss Lieven’s submissions as to the
authorities bearing on the approach to powers to modify; and I add simply that,
while not disputing the ‘different animal’ test, she argued that the case of ex
parte Lancashire County Council was not of great assistance because there
the court was in fact concerned with the Secretary of State’s power to require
a further review rather than with his power to modify. She also distinguished
the case of Wheatcroft on the basis of its different subject-matter.
Miss Lieven’s
argument can really be compressed into the following propositions:
(1) There is
an undoubted power to modify on confirmation and, as Mr Ash accepts, no duty to
consult at that stage.
(2) While the
power to modify is not to be strictly and narrowly construed, it is limited by
the requirement that is must not be used so as to produce an order entirely
different in scope or impact — ‘a different animal’.
(3) It was not
so used here, because the only difference between the area and the woodland
orders was that the latter affected trees coming into existence after it was
made. This was a difference of little consequence on this particular site;
would not significantly inhibit proper management of the property; and was in
any event mitigated by the right to seek consent to fell trees in the course of
management.
(4) In so far
as the ministerial guidance contradicted these submissions, it was wrong; and
in any event should not affect our interpretation of the relevant statutory
provisions. In fact, a modification from an area order (appropriate in
emergencies) to a woodland order affecting the same land was, so far from being
objectionable, appropriate and logical, given the particular circumstances of
this case.
(5) Finally,
Miss Lieven invited us, if we were against her on her main submissions, to
refuse relief as a matter of discretion. She submitted that it was significant
that the difference in effect between the two orders so much relied on in
argument — the inclusion in a woodland order of new trees — was not even mentioned
in Mr Evans’s affidavit, in para 2 of which he voices objections to the making
of ‘blanket’ orders, whether area or woodland, asserting that they are
oppressive; his argument is directed to the proposition that one of the other
forms of order should have been specified. Thus, it is said, there would in
truth have been no ground for objecting to the woodland order.
Conclusion
I remind
myself that, while there was a time when, before the learned judge and, indeed,
in the notice of appeal, it was contended as a distinct ground that there was a
duty on the respondent to consult further with Mr Evans as to the proposed
modification, that is not the way in which Mr Ash has put the case before us.
He has, on the contrary, accepted that there is no such duty; and relies on
that fact in support of his submission that the change from area to woodland
designation was unlawful — outside the powers of the Act — because, in this
particular statutory context, it cannot have been envisaged that the power to
modify unaccompanied by a duty to consult would involve a right to make such
important changes. A corollary of that contention is, it seems to me, that even
had there been consultation this would not have rendered lawful such a change.
The second
observation I make is that we are not on this appeal concerned to determine
broad questions such as, for example, whether any change of designation is, as
para 57 of Circular 36/78 suggests, outside the powers of the Act or otherwise
objectionable. If and when such
designation of individual trees within precisely the same area — arise, they
will have to be decided. What we are concerned with is whether, on the facts of
this case, the change from an area order to a woodland order was a modification
permitted by the Act, or was a change outside the scope of the power to modify,
producing a different animal.
An aspect of
this case that particularly weighs with me is the difficulty I have had in
understanding what it was that led the planning authority to take the decision
to make the change: the laconic statement in the report of September 12 that a
woodland order ‘is considered to be more relevant’ is unilluminating. What
seems to me inescapable is that the fact that a woodland order would affect new
trees which would not have been covered by the area order must have been a
factor in the minds of the authority — it is, after all, the only significant
difference that has been identified, in this particular case, between the two.
From the authority’s standpoint this change, and this underlying motive for it,
make sense against the background of the alleged serious devastation that had
provoked the original order. It must be remembered, however, that that ‘devastation’
was not unlawful.
The conclusion
I have reached on the facts of this particular case is that the change from
area to woodland orders did have the effect of producing ‘a different animal’
by bringing within the scope of the TPO new trees and thus ensuring not merely
that existing trees should be preserved and allowed to regenerate, but that the
character of and the tree cover on the site should be restored to what it had
been before the events of Easter weekend. As Neill LJ observed during Miss Lieven’s
submissions, the more she emphasised the number of trees cut down before the
order, the more concerned he became that what was being produced by the change
was a different animal. In this connection, it seems to me that in the passage
embodying his conclusion, where the learned judge speaks of there being no more
than a change of label, he does not really deal with the significance of the
important difference, identified above, between the two orders. He had noted
the argument earlier, but when speaking of ‘a change of label over the same
land and the same trees’ seems to me to disregard it.
For these
reasons I consider that this appeal must succeed, on the ground that the
modification produced by the change to a woodland order was outside the powers
to modify contained in section 199(1) and therefore outside the powers of the
Act.
As to Miss
Lieven’s argument on the discretion, I reject it essentially for the reasons
already foreshadowed — that even if it might be an answer to a simple
allegation of failure to consult, it cannot be a ground for refusing relief
where the order made was outside the powers of the Act. In any event, it is
clear that Mr Evans would have been entitled to urge, in support of an argument
against the modification, the significantly more onerous consequence that it
produces.
Having regard
to the provisions of subsections (5) (6) and (7) of section 288 of the Act it
appears to me that the appellant is entitled to the relief
ROCH LJ: I agree. The appellant, in his affidavit, at para 6 states:
A good deal
of the area covered by the border is not ‘woodland’, nor could it sensibly be
described as such. It is former meadow which has just not been used for a few
years. Designated as ‘woodland’ would impose on me a requirement to use the
land in a way in which, as far as I know, it has never been used before — at
least not since the war.
At p36 of the
appeal bundle there is a copy of an extract from the ordnance survey plan circa
1940 which confirms that at that time a good deal of the area covered by the
order was not woodland.
Mr Evans had
no opportunity to try to persuade the local planning authority that most of
this area was not ‘woodland’ and that a ‘woodland’ order would be
inappropriate. There is no evidence that the local planning authority or their
officers have considered this point. In my view, the local planning authority
would have no power to convert to ‘woodland’ land which was not woodland by the
making of a ‘woodland tree preservation order’. To do so would be an
unwarranted interference with the rights and powers of the land owner.
These matters,
in my judgment, make the case for the appellant clearer, namely that what the
local planning authority did, on the facts of this case, went beyond
‘modification’ of the unconfirmed tree preservation order.
NEILL LJ: Section 199(1) of the Town and Country Planning Act 1990 provides
as follows:
A tree
preservation order shall not take effect until it is confirmed by the local
planning authority and the local authority may confirm any such order either
without modification or subject to such modifications as they consider
expedient.
I agree with
Hutchison LJ that in this context the power to modify should not be construed
narrowly or strictly. The words ‘subject to such modifications as they consider
expedient’ should be given their full effect.
The question
for determination is whether the woodlands order made in September 1994 was a
modification of the area order made in April 1994 or whether in the
circumstances it was a quite different order.
I accept that
in the first instance it is for the authority rather than for the court to form
a judgment as to the degree of difference between the first order and the
confirmed order, but on the facts of this case for the reasons explained by
Hutchison and Roch LJJ I am satisfied that the woodland order was so different
in its operation and effect from the area order that it fell outside the wide
ambit of the power to modify.
I agree that
the appeal should be allowed.
Appeal
allowed.
