Town and Country Planning Act 1971, section 245 — Application by development company seeking to quash a tree preservation order in respect of a single mature yew tree — Applicants relied on the principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, in particular that the planning authority had taken into account a matter which it ought not to have taken into account — The applicants had obtained outline planning permission for residential development and subsequently applied for approval in regard to the reserved matters — At that time the plan for development involved the removal of the yew tree — The respondent authority, after considering reports from the district planning officer and the county forestry officer, made a tree preservation order in respect of the tree in question, based on the contribution made by the tree to the visual amenities of the area — The developers had in the meantime amended their application for approval of the reserved matters in order to avoid the removal of the tree — They
The following
case is referred to in this report.
Associated
Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223; [1947] 2 All ER 680, (1947) 45 LGR 635, CA
This was an
application by Bellcross Co Ltd, a development company, to quash under section
245 of the Town and Country Planning Act 1971 a tree preservation order made by
the respondent authority, the Mid Bedfordshire District Council, in respect of
a single mature yew tree at Denel End Farm, Flitwick, in Bedfordshire. The tree
stood on the site of a proposed residential development for some 230 houses.
S Pickles
(instructed by Benning, Hoare & Drew, of Shefford, Beds) appeared on behalf
of the applicants; Christopher Lewsley (instructed by the district solicitor,
Mid Bedfordshire District Council) represented the respondent council.
Giving
judgment, SIMON BROWN J said: This is a section 245 application by a
development company seeking to quash a confirmed tree preservation order in
respect of a single mature yew tree at Denel End Farm, Flitwick, Bedfordshire,
on the site of an intended residential development for some 230 houses.
The challenge
is founded upon Wednesbury principles. In particular, for reasons to
which I shall come later, it is asserted that the respondent authority took
account of an immaterial consideration when they confirmed the order.
The factual
circumstances within which this challenge arises can best be related
chronologically. On December 19 1985 the Secretary of State on the developers’
appeal granted an outline planning permission for this residential development.
On March 27 1986 the developers applied for the approval of reserved matters,
the plan at that point involving the removal of the tree.
On June 10 the
respondents first considered making this TPO. The district planning officer’s
report to the relevant committee recommended making an order with immediate
effect. It said:
An application
has been submitted for approval of reserved matters for housing development at
Denel End Farm and involves removal of the existing farmhouse and buildings and
redevelopment of the site. A yew tree stands in the garden of the farmhouse and
is under threat from the development proposals.
The county
forestry officer has inspected the tree and advises that it is in very good
condition and is probably one of the oldest trees in Flitwick. The tree has
been inspected by a planning officer and it is considered to make an important
contribution to the visual amenities of the area.
On June 16
there was served upon the developers a notice of a tree preservation order in
regard to the yew tree, together with a direction under section 61 of the Town
and Country Planning Act 1971 indicating that it came into immediate effect.
The grounds for making the order were said to be:
The tree
makes an important contribution to the visual amenities of the area.
It is
convenient at this stage briefly to allude to the relevant statutory
provisions. By section 60(1) of the 1971 Act it is, so far as relevant,
provided:
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 . . . (a) for prohibiting . . . the
cutting down, topping, lopping . . . of trees.
Section 60(4)
provides that such an order shall not take effect until it is confirmed by the
local planning authority.
However, by
section 61 it is provided:
(1) If it appears to a local planning authority
that a tree preservation order proposed to be made by that authority should
take effect immediately without previous confirmation, they may include in the
order as made by them a direction that this section shall apply to the order.
(2) Notwithstanding section 60(4) of this Act, an
order which contains such a direction shall take effect provisionally on such
date as may be specified therein and shall continue in force by virtue of this
section until — (a) the expiration of a period of six months beginning with the
date on which the order was made; or (b) the date on which the order is
confirmed whichever first occurs.
I need not
refer to the TPO itself beyond saying that the second schedule, the terms of
which are governed by regulations, includes the following:
This order
shall not apply so as to require the consent of the authority to . . . (3) the
cutting down, uprooting, topping or lopping of a tree . . . (c) where
immediately required for the purpose of carrying out development authorised by
the planning permission granted on an application made under Part III of the
Act . . .
On June 20 the
developers by letter submitted a robust objection to the making of the TPO,
contending that it was too late in the day for such an order. The company
having overcome the planning authority’s earlier objections to development on
the appeal to the Secretary of State, the council’s attitude was trenchantly
described as, among other things, devious, undemocratic, mischievous and
involving a misuse of power.
The respondent
authority replied on July 4 1986. It is unnecessary to relate the terms of that
letter beyond observing that it noted that the developers had amended their
outstanding application for the approval of reserved matters in order to avoid
the removal of the tree.
That amendment
had in fact been made by redrawing the development plan on May 19 1986, the
amended plan being received by the authority on June 23 1986.
On July 9 the
developers wrote again in terms as emphatic as those of their earlier letter.
They observed that they had amended the current application specifically so
that the tree preservation order could not be used as a basis for further delay
in the development but added:
This does not
mean in any way to be intended to lose that plot as the infrastructure of this
development is costing a fortune and this plot with roads and services would
cost this Company £25,000 to £30,000.
They further
enclosed a copy of a tree surgeon’s report and suggested that it would be
dangerous to retain that tree. On that basis they were objecting to the order.
The tree
surgeon’s report, itself dated July 8, described problems affecting the health
of the tree and said that although it could be safely left in its present environment:
However, as
there are to be houses built on this land and obviously children living in the
immediate vicinity, we can only, with reluctance, recommend that this tree be
felled, for the safety of all concerned.
On July 11 the
developers’ solicitors wrote essentially to confirm the gist of the developers’
objection based on the expert’s report regarding the danger the tree would
constitute within the proposed development.
On July 15 the
respondent authority approved the reserved matters pursuant to the amended
application. The only relevant condition is no 16, which states:
The
permission shall extend only to the application as amended by plans received
23.6.86.
These, as I
have indicated, left the yew tree standing.
It was some
four months later that the question of the confirmation or otherwise of the TPO
came before the respondent council’s planning and development committee. The
committee had before them a report of the council officers. That said that the
district planning officer and the county forestry officer had been consulted
upon the objections to the confirmation of the relevant tree preservation order
and their comments were as follows:
District
Planning Officer: The main point made by Bellcross
is that we should have acted at the outline stage. In fact, the outline
proposal suggested in no way that the part of the farm where the tree is
situated would be affected by the development.
I observe
parenthetically that it was of course always a possibility at
nothing turns on that in respect of the motion presently before the court. The
quotation continues:
When the
details were submitted the original farm buildings were included in the
redevelopment proposals and it was only at this stage that any threat to the
tree was recognised. I see no reason why we should not proceed with the
confirmation of the Order. Incidentally the application has been amended to
avoid the tree.
County
Forestry Officer: The tree is an old specimen with
some decay in the main trunk. The crown of the tree was removed many years ago
and extensive regrowth has occurred to form a new crown. If the site has been
redrawn to retain the tree and there are no proposals for any development
closer than 10 metres, then I see no reason why the tree should not be
retained. It is probable that regular pruning work will be required to maintain
the tree’s safety but this would only be good management.
In the light
of those comments it was recommended to the committee that the TPO be confirmed
without modification.
The committee
considered that report on November 18 1986 and, having duly considered the
objections to the order in the light of those comments, they recommended to the
council that the TPO be confirmed without modification.
There then
occurred what Mr Pickles for the applicant company describes as an unfortunate
episode, which consisted of the respondent authority treating that committee
recommendation as itself the confirmation of the order and on November 28 1986
serving notice of confirmation upon the company.
On December 16
1986 the provisional TPO expired by effluxion of time pursuant to section
61(2). That, however, was not appreciated by the company, who believed that the
notice had duly been confirmed. There is an affidavit before the court which
deposes to the fact that but for their misapprehension in this regard they
would in fact have felled the tree upon the expiry of the order.
On January 6
1987 the council itself duly accepted the committee’s recommendation and
adopted it. Thus, finally, the order came to be confirmed. Service of the
notice of the confirmed TPO was then effected on January 9 1987. In an
accompanying letter the authority apologised for their error in serving a
purported notice in November. These proceedings were issued on February 17
1987.
I return to
the basis of this challenge. In an admirably clear and succinct argument, Mr
Pickles contends that an immaterial consideration was introduced into the
decision to confirm this TPO. He refers particularly to passages in the
respective comments made by the district planning officer and county forestry
officer, notably where the former said: ‘Incidentally the application has been
amended to avoid the tree’, and where the latter said: ‘If the site has been
redrawn to retain the tree and there are no proposals for any development
closer than 10 metres, then I see no reason why the tree should not be
retained.’
He relies also
upon the following passage in an affidavit sworn by Mr Adamson, the
respondent’s district solicitor, on March 27 1987:
The order
does not apply so as to require the consent of the Council to the cutting down,
uprooting, topping or lopping of a tree where immediately required for the
purpose of carrying out development authorised by a planning permission (Sch 2
para 3(c) of the Order). Accordingly there would be no point in confirming the
order in those circumstances. The fact that the proposed development avoided
direct damage to the tree was therefore relevant and supported confirmation of
the Order. Further, the report to committee . . . makes it clear that this was
no more than an incidental matter.
The essence of
Mr Pickles’ submission is that the point that the proposed development would
avoid direct damage to the tree was accordingly being invoked and deployed as a
positive point in favour and support of the confirmation of the order, whereas
it ought more properly to have been regarded either as a point militating
against confirmation or at worst a neutral point. The fact that the tree was
not to be felled pursuant to the amended plan did no more, contends Mr Pickles,
than leave wholly open for the council’s consideration the expedience or
otherwise (in the language of section 60(1)) ‘in the interests of amenity’ of
making this preservation order.
Attractively
though the argument has been put, in my judgment it fails. It seems to me
critically important to place the officers’ report submitted to the committee
on November 18 1986 in its context. That context involves these considerations.
First, the original recommendation for the making of the order had already
specified the vital factors in the officers’ minds for the making of such an order.
That was in the report of June 10 1986 which I have already recited in full.
Second, by November 1986 it was necessary to acquaint the committee with the
changed situation. The committee, and in turn the council, would need to know
whether or not the detailed approval by then already given would require the
removal of the tree. If it did, then that would clearly be a factor against
confirmation, having regard to the provisions of Schedule 2, para 3(c), to the
order. As it was, of course, and as the district planning officer noted, the
application had in fact been amended to avoid the tree. This comment, as it
seems to me, is thus to be regarded as no more than an anticipatory response by
officers to the committee’s likely question whether or not it was expedient to
confirm the order having regard to the actual development proposals for the
site.
The real
ground of objection that had been canvassed by the company was that, if there
were to be development in the immediate vicinity of this tree, safety required
its felling. That was the essential threat posed by the developer in the light
of that objection. The passage in the county forestry officer’s comments upon
which Mr Pickles lays great stress is to my mind to be read merely as an answer
to that point. He is there saying that, given that development will not come
closer than 10 metres (and I interpolate that, although the scaling off from
the plans suggests, according to the information before me, that in fact such
development comes to within 7.5 metres at one point, that cannot assist the
challenge on the grounds in fact advanced), there was no reason in the
interests of safety for the tree to be lost. The introductory words to that
comment, namely: ‘If the site has been redrawn to retain the tree’, again to my
mind do no more than pre-empt any suggestion such as might have been canvassed
on behalf of the developers or raised by the council that this was in fact a
case where, because of para 3(c) of Schedule 2 to the order, it was
inappropriate to confirm the order. That of course is the essence of what Mr
Adamson was saying in the paragraph I have quoted from his affidavit.
I recognise
the force of Mr Pickles’ comment — in the light of the amended legislation
governing the exercise of control over tree preservation whereby there is no
appeal to the Secretary of State at the initial stage but only upon a refusal
of the authority to consent to work being done to protected trees — that it is
particularly important that the council give proper consideration to the making
of the order in the first place. I am satisfied, however, that in this instance
they did. I reject the contention that they took account of immaterial
considerations. In particular, I am wholly unsatisfied that the committee or
council here improperly put into the balance as a positive factor in favour of
confirmation the mere fact that the tree was not directly to be damaged by the
then proposed development.
In these
circumstances the application fails and must be dismissed.
The
application was dismissed with costs.