Woodland site subject to planning permission – Planning authority revoking permission and making tree preservation order to cover entire site – Owner serving purchase notice – Inspector concluding site capable of reasonably beneficial use as commercial woodland – Owner seeking judicial review of Secretary of State’s refusal to confirm purchase notice
C owned a site at Marley Wood, Pean Hill, Whitstable. The area of the entire site was 2.2 ha and was divided by a track into two parts, the larger site and the smaller site. In 1961 C’s predecessor in title obtained outline planning permission (the 1961 permission), subject to the usual condition reserving matters for subsequent approval, for the “demolition of house and erection of new dwelling” on the entire site. In 1963 an application for the approval of the reserved matters was approved. The application and the approval showed the house sited in a position wholly within the smaller site. In 1987 the local planning authority, having concluded that it would not be in the public interest that the 1961 permission be implemented, made a tree preservation order (the TPO) in respect of Marley Wood, which covered the entire site and some adjoining land, and revoked the 1961 permission. C objected and an inquiry (the revocation inquiry) was held. However, the revocation order was confirmed by the Secretary of State in 1989. C claimed and received compensation for diminution in the value of her land. C then served a purchase notice on the planning authority, which was not accepted. The Secretary of State appointed an inspector to hold an inquiry (the purchase notice inquiry) at which C argued, inter alia, that the entire site was “incapable of reasonably beneficial use in its existing state”. The planning authority contended to the contrary that the land had amenity value or a capacity for producing income from forestry operations. The inspector concluded that ” the purchase notice land is capable of reasonably beneficial use as commercial woodland”. The Secretary of State refused to confirm the purchase notice. C unsuccessfully challenged the legality of that refusal and appealed: (1) contending that the purchase notice inquiry inspector and the Secretary of State, when considering whether or not to confirm the purchase notice, had applied their minds to the entire site whereas they should have applied their minds to the smaller site; and (2) seeking to show that the entire site was not capable of reasonably beneficial use in its existing state and that the purchase notice should therefore have been confirmed.
Held The appeal was dismissed.
1. The revocation order which was made referred to the 1961 permission. No revocation could be made or was made in respect of the approval of details reserved by the 1961 permission. The 1961 permission related to the entire site, so did the revocation and so did the purchase notice served on C’s behalf. The inspector and the Secretary of State had been entitled to look at the entire site.
2. The appellant submitted that the Secretary of State had failed to appreciate the significance of theTPO and of section 138 of the Town and Country Planning Act 1990. The fact that under the TPO the planning authority’s consent had to be sought for any forestry works did not as a matter of law prevent the use of the land for forestry purposes from being treated as capable of reasonably beneficial use in its existing state: see Gavaghan v Secretary of State for the Environment [1989] 1 PLR 88. Nor could it be said that the inspector’s conclusion that the land was capable of such use in its existing state was so surprising in the light of even the council’s evidence that it could be regarded as perverse. The inspector had clearly had the relevant guidance, Circular 13/83, in mind and it was open to him to conclude that the land was capable of reasonably beneficial use as commercial woodland.
3. The local planning authority’s position at the purchase notice inquiry was not inconsistent with their position at the revocation inquiry. It was not irrational or in any other way illegal for the inspector at the purchase notice inquiry to conclude as he did that the entire site was capable of reasonably beneficial use.
The appellant appeared in person; David Elvin (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment; Alice Robinson (instructed by the solicitor to Canterbury City Council) appeared for the second respondents, Canterbury City Council.
Carolyn Toulmin, barrister
