Tree preservation order–No force in complaints about council’s procedure–Criticism of ‘classification’ of trees, even if established, no ground for quashing order–Trees to be preserved adequately identified by description, and in particular by reference to numbers marked on each tree
This was an
application by Mr Edgar Bates, of 2 Seymer Road, Romford, Essex, to quash Tree
Preservation Order No 8/69 (Dudbrook-Navestock), made by the second
respondents, Essex County Council, in May 1969 and confirmed, subject to
modifications, by the Minister of Housing and Local Government, predecessor of
the first respondent, the Secretary of State for the Environment, on October 31
1969.
The applicant
appeared in person. Mr J M Sullivan (instructed by the Treasury Solicitor)
appeared for the Secretary of State, and Mr D R P Mole (instructed by the
council solicitors) represented Essex County Council.
Giving
judgment, MILMO J said that on April 28 1969 the applicant entered into a
contract with the owners of Dudbrook Hall, Navestock, Essex, for the felling of
60 trees covered by a Forestry Commission licence, dated April 24 1969,
permitting felling. These trees constituted the total subject matter of the
tree preservation order which it was now sought to quash. On April 25 1969 the
chairman of the landscape and conservation subcommittee of Essex County Council
had received from an officer of the county planning department a request for a
tree preservation order to be made in respect of the 60 trees. On April 29 the
chairman gave written authorisation for the making of a tree preservation order
in respect of the trees, and the order was made under the seal of the council
on May 20 1969. At a meeting of the landscape and conservation subcommittee on
the following day the action taken by the chairman was recorded and confirmed,
and the relevant resolution was entered in minute 53 of the subcommittee for
that date. The minutes of the meeting were duly signed by the chairman of the
subcommittee at its next meeting on June 18 1969. By letter dated May 23 1969
notice was given to the applicant of the making of the tree preservation order,
and the notice complied with all the statutory requirements and regulations. By
letter dated May 26 1969 to the Minister of Housing and Local Government the
applicant appealed for a public inquiry so that his objections to the order
might be heard. The Minister, as he was fully entitled to do, decided not to
hold a public inquiry, and by letter dated July 11 1969 he notified the
applicant that he could take his decision on the basis of written
representations and on inspection of the trees and their surroundings by one of
his officers in company with a representative of the council and the applicant
or his representative. On October 7 1969 the Minister’s representative visited
the site and made an inspection of the trees. He did so in the presence and
company of the applicant and duly made his report to the Minister. On October
31 the Minister confirmed the order subject to modifications, the effect of which
was to reduce the number of trees covered by the order from 60 to 20. The
applicant sought to quash the order so confirmed.
The
applicant’s first ground of appeal was an unparticularised allegation that the
confirmation by the Minister was not within the powers of the Town and Country
Planning Act 1962. The applicant said he did not rely in support of that ground
upon any matters going beyond the allegations in his fourth ground, which
amounted to the statement that the council’s order was not authorised in the
prescribed manner and not recorded in the council’s minutes as required by the
relevant provisions of the Local Government Act 1933. He (his Lordship) would
deal with that point in a moment. He found no evidence whatsoever to support
the charge made in ground 2, that while the Minister accepted that over 40 of
the 60 trees concerned should be cut down, he failed to take into consideration
the resulting effect on amenity, and further failed to consider the correctness
of the classification of the trees in the schedule to the order. On the amenity
point, all the evidence pointed the opposite way. The reference to the
‘correctness of the classification of the trees’ appeared to be a criticism of
the species of trees listed in the schedule of the order. He (his Lordship) was
not satisfied that there was any misdescription, and even if there had been a
wrong identification of the species of tree, he did not consider that it would
have invalidated the order in any way, as the trees to be preserved were adequately
identified by the rest of the description given, and in particular by the
number marked upon each tree. Further, the applicant was present when the
inspector examined the trees and raised no objection to the inspector’s opinion
as to the species. Besides, of the six trees alleged to have been wrongly
described, five were eventually excluded from the order. The third ground of
appeal was the submission that the schedule to the Minister’s decision letter
contained material errors in the specification of six of the trees forming the
subject of the order, and that turned out to be no more than a repetition,
equally
As for ground 4, he (Milmo J) found as a fact that, as already stated, the
making of the order was properly and adequately recorded in minute 53 of the
meeting of the council’s landscape and conservation subcommittee on May 21
1969, which minutes were duly signed at the next meeting of the subcommittee on
June 18 1969. For the reasons appearing in the affidavit of the clerk to the
council, he (his Lordship) was satisfied that the order was made in the
prescribed manner and that the subcommittee’s chairman was duly authorised by
the council to make the order on its behalf.
Plainly, the
applicant was under the impression that the hearing before the High Court would
be a rehearing of the matters in respect of which the legislature had given to
the Minister the duty of decision. Basically the applicant’s complaint was that
the Minister had based his decision on the report of the inspector and that the
applicant’s expert disagreed with the inspector’s opinions. This was not a
ground upon which the High Court would be entitled to quash the Minister’s
order. In the result, there were no grounds for quashing the order, and the
application had to be dismissed with an order that the applicant pay the costs
of both respondents.