Local authority letter to appellant confirming provisional tree preservation order — Appellant felling trees in breach — Whether confirmatory order in breach of regulations 5 and 6 of Town and Country Planning (Trees) Regulations 1999 — Appeal dismissed
The appellant owned a property that he wished to develop into flats. He made known his intention to cut down a number of ash trees that grew in the front garden of the property, and the respondent council imposed a tree preservation order on the site. Since it was a matter of some urgency, the order was expressed to encompass the area in general. The council subsequently issued a detailed order, accompanied by a map and a schedule, that specified the trees to be protected. Notes attached to the order informed the appellant of the appeal procedure, but he did not avail himself of it at the time. Accordingly, the order was confirmed, and a letter of confirmation, but not a copy of the confirmed order, was sent to the appellant.
The council later discovered that a number of the trees had been destroyed and they duly commenced criminal proceedings against the appellant. The proceedings were adjourned to await the decision in this appeal.
The appellant appealed, under section 288 of the Town and Country Planning Act 1990, on the basis that the order was invalid in that it breached regulations 5 and 6 of the Town and Country Planning (Trees) Regulations 1999. He argued that: (i) the letter of confirmation sent to him was insufficient to confirm the order because regulation 6 required the service of the order, map and schedule; or, alternatively (ii) that the map and schedule annexed to the order had not been endorsed, as required by regulation 5.
Held: The appeal was dismissed.
The tree preservation order did not take effect until it had been confirmed by the local planning authority. The map and schedule had to be annexed, and the order was confirmed by dint of being endorsed. The map and the schedule formed part of the order. Thus, if the body of the order had been endorsed, that endorsement would also encompass the map and schedule. The appellant erred in believing that it was necessary for all the documents to be individually endorsed.
When confirming an order, the planning authority were under a duty to serve a copy, together with the annexed map and schedule, only if the order had been modified. The confirmatory order merely confirmed its provisional counterpart, and there was therefore no requirement to serve further copies of the papers.
Where an appellant brought an action based upon a technical defect in papers and requested the court to exercise its discretion, that appellant was obliged to demonstrate that he had been prejudiced as a result of the respondent’s failure to comply with the correct procedure. The papers served by the planning authority were not technically defective, and even if they had been, the court would not have exercised its discretion in favour of the appellant because he was unable to demonstrate that he had suffered prejudice.
Ramby de Mello (instructed by Michael Lee & Co, of Birmingham) appeared for the appellant; John Greaves (instructed by the solicitor to Bromsgrove District Council) appeared for the respondents.
Vivienne Lane, barrister
