Tree preservation order — Alleged irregularities in order — Whether order confirmed for genuine reasons — Whether council required to perform tree survey — Whether plan forming part of order invalid — Whether planning committee failing to consider claimant’s representations when confirming order — Sections 197 and 288 of Town and Country Planning Act 1990 — Town and Country Planning (Trees) Regulations 1999
The claimant owned a listed building, the grounds of which contained a large number of trees. A tree preservation order (TPO) was made in June 1988, but, due to an oversight, was never confirmed. In 2000, the claimant applied for permission to use part of the grounds for touring caravans. This required the removal of some of the trees. The second defendant council refused permission and the claimant appealed. An inquiry was held in May 2000.
While preparing for the appeal, the council realised that the 1988 TPO had not been confirmed and, accordingly, a planning officer carried out a survey to decide whether this should occur. In November 2000 a provisional TPO was made on the ground that the trees: (i) contributed to the character and appearance of the locality; (ii) contributed to the landscape; and (iii) were a public amenity.
The claimant objected to the TPO on the grounds that it was excessive, oppressive and unnecessary, and that the council’s actions were not impartial. The claimant sought judicial review of the Town and Country Planning (Trees) Regulations 1999 (SI 1999/1892), as he believed that he had discovered a discrepancy between the regulations and the advice given in the Department of the Environment, Transport and the Regions’ (DETR) publication Tree Preservation Order: A Guide to the Law and Good Practice. He also challenged the TPO under section 288 of the 1990 Act, arguing that the council had: (i) failed to undertake a comprehensive tree survey; (ii) used an incorrect ordinance survey map; (iii) failed to take into account the claimant’s representations; and (iv) confirmed the order only to justify their position in an appeal, following two refusals of planning permission and a public inquiry.
Held: The claim was dismissed.
1. The alleged inconsistency between the regulations and the guidance arose from the claimant obtaining an incomplete copy of the regulations. Section 197 of the Town and Country Planning Act 1990 imposed a duty upon the council to ensure that they made adequate provision for the preservation and planting of trees when granting planning permission by, inter alia, making TPOs. Any order had to specify the trees to which it related and the number of trees in a group, and had to indicate the position of the trees on a map. There was nothing to prevent trees from being specified by reference to an area where, for example, a number of individual trees were situated, and there was an imminent threat of removal, and insufficient time in which to perform a survey.
2. The claimant was not concerned with the validity of the regulations in the abstract, but with the effect of the order upon his property. There had been ample opportunity at the inquiry to challenge the merits of the TPO and to argue that specific trees had been inappropriately included. It could not be said that the claimant had not been allowed to make his objections to the order, or that they had not been taken into account.
3. There was no statutory requirement to perform a survey, but, as a matter of common sense, a survey would be carried out in practice. Under section 288 of the 1990 Act, the court was not concerned with the merits of a TPO but with whether it fell within the Act and whether it complied with procedural requirements. A claim that a survey was inadequate would not lead to the conclusion that a TPO was legally invalid. The result of an inadequate survey was that trees might be wrongly included in the order, but this was a matter that could be raised before the inspector on an application for consent to fell specific trees. The regulations did not require a TPO to incorporate an up-to-date map, so long as the map used correctly indicated the position of the trees; it did not matter if the map was out of date in other respects.
4. There was no evidence that the TPO had been drafted in order to bolster the council’s case at a future planning appeal. When a planning application was received, the officer had to consider whether there were adequate mechanisms to protect important trees on the site. He did this without knowing whether planning permission might ultimately be granted. It was not unusual for TPOs to be made after applications for planning permission.
The claimant appeared in person; Paul Brown (instructed by the Treasury Solicitor) appeared for the first defendant; Megan Thomas (instructed by the solicitor to East Riding of Yorkshire Council) appeared for the second defendants.
Eileen O’Grady, barrister
