Town and Country Planning Act 1971, section 245–Application to quash tree preservation order in respect of a small coppice–Applicant, a farmer, had made an unsuccessful attempt to obtain planning permission for a housing development on the land and he now challenged the tree preservation order–He submitted that as a matter of law it was not possible to make a tree preservation order in respect of a coppice and, alternatively, that it was in practice impossible to reconcile such an order with the normal good management of a coppice, which required regular felling and regeneration from the stools–Meaning of ‘trees’ and ‘coppice’ discussed–Held that trees in a coppice were subject to the power to make preservation orders and that, so far as good management was concerned, it was not impossible to devise a practical scheme–Application dismissed
This was an
application by John Bullock under section 245 of the Town and Country Planning
Act 1971 to quash the Brook Farm Drive Malvern Tree Preservation Order 1978 no
36, made by the Malvern Hills District Council and confirmed by the Secretary
of State for the Environment.
M A Hutt
(instructed by Hewitt, Woollacott & Chown) appeared on behalf of the
applicant; Simon Brown (instructed by the Treasury Solicitor) represented the
first respondent, the Secretary of State. The second respondents, Malvern Hills
District Council, were not represented and took no part in the proceedings.
Giving
judgment, PHILLIPS J said: This is an application under section 245 of the Town
and Country Planning Act 1971 and order 94 of the Rules of the Supreme Court,
by which the applicant, John Bullock, seeks to have quashed or suspended the
Brook Farm Drive Malvern Tree Preservation Order 1978 no 36.
The order
relates to a wood of about half an acre. It is the remains of a much larger
wood and on one side or one and a half sides, particularly to the north-west
and the north-east, it is now surrounded or approached by a fairly new estate,
and, as is often the case, it is much cherished by the people who live in the
estate as an amenity. The applicant has a farm which is off to the north-east
and this wood now, if not divorced from the farm, is only tenuously connected
to it; but he still uses it.
Among the
facts found at the inquiry is that the land ‘comprises a coppice, primarily of
stool grown ash over an area of about 1/4 hectare. The north and south-west
boundaries adjoin recent residential development while open farmland surrounds
the remainder of the wood. Public footpaths run along the north and south-east
boundaries. There are few other woods in the area.’ The land is throughout described as a
coppice, and it is found as a fact that: ‘The coppice was originally used for
hop poles and had been clear felled on a rotational basis over 20-25 years. It
is now used for farm fencing purposes and would be cut in the same manner.’
The applicant,
thinking that the land in question was suitable for housing, made an
application for planning permission. The application was for eight houses and
garages and vehicular access. That was refused on January 9 1978, the grounds
of refusal being, broadly speaking, that the land was not needed for
residential purposes because there was available other unused land. The grounds
also contained this: ‘It is considered that this coppice should remain in its
present form in order to provide both aesthetically and biologically a useful
oasis of natural vegetation on the periphery of an existing residential area.’
It being
discovered that the applicant had felled a number of trees in the centre of the
wood, the second respondents to this application, the Malvern Hills District
Council, made an interim tree preservation order. In due course that order was
confirmed by the Secretary of State.
The Secretary
of State accepts the inspector’s conclusions regarding the amenity value of
this coppice, and says that its removal would have a significant adverse impact
on the environment and its enjoyment by the public. The Secretary of State then
turns to consider matters relating to the continued management of the wood.
Various matters had been canvassed before the inspector, and the Secretary of
State goes on:
A condition
permitting the removal of ash poles more than 6 inches in diameter is not
however thought either appropriate or practical. Whether felling should be
selective by diameter of pole or on some rotational basis is a matter for
future decision under the procedures contained in the order and explained in
paragraph 58 of the department’s circular 36/78.
The Secretary
of State goes on to make some general observations as to the kind of basis upon
which the future management of the wood might be arranged. That is the
background of the application before me.
Mr Hutt, who
has argued the application persuasively and interestingly, makes two major
submissions. First of all, he submits that it is not possible as a matter of
powers to make what he calls a coppice preservation order. That is not a term
of art, and what is meant is that there is no power under the Act to make a
tree preservation order in respect of a coppice. Secondly, and alternatively,
he says that if there is power in theory there is not in practice, because
there is a total inconsistency between the purpose of such a tree preservation
order and what is necessary in the interests of continuing good management, and
without which, indeed, the objects of a tree preservation order cannot be
secured.
I should have
said that in the schedule to the tree preservation order the land in question
is described under the fourth possible category as ‘Woodlands,’ and after
identification is described as ‘Mixed hardwoods consisting mainly of Ash.’
I turn then to
the first submission. This submission is based on the fact, which seems to be
accepted in the various documents, that this wood or woodland is a coppice. I
wondered sometimes when listening to the case whether the applicant really
wants it as a coppice, because it is quite clear that he was trying to have it
cut down in the hope that houses could be built upon it. But I ignore that
feature of the matter for present purposes, and consider the submissions in a
more abstract form.
A coppice is
defined in the dictionary as ‘a small wood of underwood and small trees grown
for periodical cutting,’ and in Dashwood v Magniac [1891] 3 Ch
306 Kay LJ says this: ‘That definition’–he is talking about what is meant by
timber wood–‘would include coppice’–and then he goes on–‘which, properly
speaking, is oak, ash, or other wood cut at intervals of less than 20 years, so
that it springs again from the same stool or stub; and the cutting of this at
the proper periods by a limited owner is not waste.’ So the essential of a coppice is that it is
in the form of a crop and that when the trees are ripe, and are cut at the
proper height in the proper way, there will be regeneration from the stools,
and so it will go on from generation to generation.
Mr Hutt’s
argument is that the nature of a coppice and the form of silviculture involved
are inconsistent with the powers in relation to tree preservation orders. Those
powers derive from the re-enactment in the Town and Country Planning Act 1971
of earlier provisions, those relevant for present purposes being section 59 and
the following sections.
Section 60
provides:
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 (in this Act referred to as a ‘tree
preservation order’) with respect to such trees, groups of trees or woodlands
as may be specified in the order; and, in particular, provision may be made by
any such order–(a) for prohibiting . . . the cutting down, topping, lopping or
wilful destruction of trees. . . . (b) for securing the replanting. . . .
Section 59
provides:
It shall be
the duty of the local planning authority–(a) to ensure, whenever it is
appropriate, that in granting planning permission for any development adequate
provision is made, by the imposition of conditions, for the preservation or
planting of trees. . . .
and there is
provision in section 62 for the replacement of trees.
There is no
definition of what is meant by ‘trees.’
According to the dictionary a tree is ‘a perennial plant having a
self-supporting woody main stem, usually developing woody branches at some
distance from the ground and growing to a considerable height and size,’ and
the description in the book I have been shown is in similar terms.
There seems to
me nothing to prevent those things which grow in this woodland from being
‘trees’ as ordinarily understood; and indeed Mr Hutt does not, I think, contend
that this woodland is not a woodland within the meaning of section 60, and he
does not contend that, ordinarily speaking, what is in the woodland might not
be regarded as trees. But he says that they are not trees for the purpose of
this part of the Act when one looks more closely at the purpose of it and the
nature of a coppice. He relies on some observations of Lord Denning MR in Kent
County Council v Batchelor (1976) 33 P & CR 185. There a tree
preservation order had been made, an injunction had been granted restraining
the appellant from cutting down or uprooting any trees on the land which was
the subject of the tree preservation order, and Lord Denning says at p 189:
Furthermore,
I must say that there is an ambiguity in this Act and in the order. We are not
told what is a ‘tree.’ Many bushes and
saplings are certainly not ‘trees.’ In
woodland like this, it is often, from the agricultural point of view
(especially in a derelict area such as this) very important to get out the
bushes, scrub and saplings and to replant–as, indeed, Mr Batchelor was doing.
There is no definition of ‘tree.’ I
should have thought that in woodland it ought to be something over seven or
eight inches in diameter. I do not know that any of the trees referred to here
would be of that diameter.
That way of
looking at the matter does not appear in the judgments of Stephenson LJ or Shaw
LJ, nor is it the only ground upon which Lord Denning proceeded to quash the
committal order in respect of which the appeal was to the Court of Appeal.
Obviously
those observations, though obiter, are entitled to great respect, but I
have come to the conclusion that I ought not to follow them. In the first
place, it is plain upon the terms of the order that there is room and proper
provision for
not prevent, provided consent has been given, getting out bushes, scrub or
saplings. Bushes and scrub nobody I suppose would call ‘trees,’ nor indeed
shrubs, but it seems to me that anything which ordinarily one would call a tree
is a ‘tree’ within this group of sections in the 1971 Act. It seems to me that
if it were not so it would be difficult to apply section 59, which relates to
the imposition of conditions for the planting of trees, which in the nature of
things are quite likely to be saplings; or section 62 which makes provision for
the replacement of trees, and which again in the nature of things are likely to
be replaced by saplings.
Furthermore,
contrary to Mr Hutt’s submission, I think that way of looking at it is
supported by another Act which is not directly in point, but is in pari
materia; that is the Forestry Act 1967. Section 9(1) provides:
A felling
licence granted by the Commissioners shall be required for the felling of
growing trees, except in a case where by or under the following provisions of
this Part of this Act this subsection is expressed not to apply. (2) Subsection
(1) above does not apply–(a) to the felling of trees with a diameter not
exceeding 3 inches or, in the case of coppice or underwood, with a diameter not
exceeding 6 inches. . . .
So subsection
(1) contains a general prohibition. It follows from subsection (2) that it is
assumed that but for subsection (2) that prohibition would extend to those
things growing in a coppice, in other words it is assumed–it must be–that what
grows in a coppice generally speaking would be trees, because otherwise there
would be no need to have an exception in relation to those trees in a coppice
with a diameter not exceeding six inches.
So I reach the
conclusion that ‘trees,’ for the purpose of the relevant sections, has the
ordinary meaning that the word does have, and I see no reason, as a matter of
principle, subject to remaining points, why the trees in a coppice should not
be within the powers under which tree preservation orders can be made.
Next it is
said–and this overlaps, I think, to some extent, with the second
submission–that the proper management of a coppice is impossible if there is a
tree preservation order. And that what would otherwise pass as trees cannot
pass if they are to be found in a coppice, because the Act will not work, and
it is not the policy of the law to try to compel the impossible. I do not
accept that. No doubt there are some practical problems, but there is ample
provision for consents and for schemes of management, and I see no reason why a
practical scheme of management could not be produced in the case of a coppice
as in the case of any other group of trees or of a woodland. It may be
inconvenient, and I can see that it perhaps is, but that does not mean that it
is impossible. Nor am I satisfied that it leads to an absurdity in that every
time consent is refused to cut a bean pole the applicant would have to apply
(separately on each occasion) for compensation. I would have thought that
consents could be dealt with in categories and that what is generally refused
could be the subject of an application for compensation.
As to the
second way of putting it (and, as I say, to some extent it overlaps with the
first), it has two separate limbs. First, that there was no material here on
which the order could have been made in the interests of amenity because no
reasonable Secretary of State could possibly have taken the view that the
interests of amenity would be served by the order. With respect, I regard that
as a virtually unarguable proposition. It seems to me that there was plenty of
evidence, and that the facts are far short of those which would entitle me to
interfere with what is the exercise of the Secretary of State’s discretion.
Secondly, the
matter is put like this. It is said, in effect, that the Secretary of State in
making no provision for management, abdicated all responsibility in the matter,
and made the order regardless of the possibility of future management, with the
result that nobody knows whether it would be possible to manage the coppice,
and that the interests of amenity cannot be served because the coppice will
decay and deteriorate. There is a contradiction in terms, it is said, between
making a tree preservation order in relation to this woodland and its
maintenance and management in proper heart.
I do not
accept that. Again I can see it may be inconvenient, but it does not seem to me
that it is more than that. I do not see why the Secretary of State should not
do what he did, which was to postpone this, hoping that the parties could get
together and make a sensible arrangement for the future management of the
coppice on the lines of paragraph 58 of the circular 36 of 1978.
Then it is
said in reply to that: it appears from paragraph 41 of the same circular that
while a tree preservation order may be appropriate to secure the protection of
a tree or groups of trees or perhaps a small woodland, in the case of anything
larger it is dangerous because the consent procedures and the management under
particular consents may be so difficult and cumbersome that owners may be
induced by an order to allow their woodland to run derelict. ‘It is better
therefore,’ paragraph 41 says, ‘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
schemes and to use orders as a last resort.’
That is a
useful point, but the answer to it seems to me to be twofold. First, that this
was an emergency, because the applicant appears to have been bent on cutting
the coppice down. And, secondly, to some extent which procedure to adopt must
be a question of degree and discretion and of judgment, and that is a matter
for the Secretary of State and not for the court, unless, following the Wednesbury
principle, in Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223, I can say that the result which he has adopted
is so absurd that it cannot be one that a reasonable Secretary of State might
have arrived at. In other words, put less politely, that it is perverse. I
cannot say that.
In those
circumstances I reject the second, as the first, submission and it follows
accordingly that the application must be refused.
The
application was dismissed with costs in favour of the first respondent.