Tree preservation order – Woodland – Claimant objecting to TPO (TPO) – Report concluding TPO appropriate on amenity grounds – Woodland TPO confirmed – Whether defendant considering objection thoroughly, conscientiously and fairly – Claim dismissed
The claimants owned a property consisting of a house with a paddock and garden. The land was covered by an area tree preservation order (TPO) made by the defendant council. The effect of the TPO was to protect all trees that had been in existence at the date it was made, but not those growing on the land since that date. The claimants wished to use their land for grazing horses and sought planning permission to erect stables. The defendants refused permission and further decided to revise the TPO, pursuant to the Town and Country Planning (Trees) Regulations 1999, by imposing: (i) a woodland TPO on one-half of the land to protect all trees, whether in existence at the date it was made or thereafter, and (ii) a TPO in respect of five trees situated on the other half of the land. The claimants were not opposed to a TPO in principle, but they objected to the woodland TPO, which they considered inappropriate and damaging to the effective management of the land. The claimants’ solicitor was not informed of the date of the hearing to consider confirmation of the TPO; the order was confirmed without the claimants being heard. In order to remedy that situation, the defendants proposed to make a further TPO in the same terms in order to provide the claimants with a further opportunity to make representations, after which the previous TPOs would be revoked.
The claimants objected to the new TPO on the same grounds as before. The defendants’ arboriculturalist issued a report, which was forwarded to the claimants, indicating that a woodland TPO was justified owing to the amenity value of the trees. The defendants’ development control committee held a meeting at which they considered the report, government guidance and the claimants’ brief submissions before confirming the TPO.
The claimants challenged that decision, under section 288 of the Town and Country Planning Act 1990, on the ground that the defendants had failed to comply with their duty to deal with the matter thoroughly, conscientiously and fairly by, inter alia, failing to provide the committee with the full text of the claimants’ objection, which was instead summarised in the report, and by omitting the objection to the earlier woodland TPO.
Held: The claim was dismissed.
It was implicit in the obligation to consider objections under regulation 5(1) of the 1999 Regulations that such consideration would be thorough, conscientious and fair: Stirk v Bridgnorth District Council (1997) 73 P&CR 439 considered. In fulfilling that duty, it was acceptable for objections to be summarised in the report before the committee provided that it was done fairly and accurately. The claimants’ objection had been listed as one of the background papers available to the committee and the issues that it addressed had been squarely raised and answered in the report. Although the claimants were entitled to their view that the area in question was not suitable for a woodland TPO, that was a question of fact for the committee, whose conclusion was not unreasonable in the circumstances of the case. The committee had not been obliged to consider the claimants’ objection to the earlier TPO, given that it was to be revoked and that, in any event, it raised exactly the same points as the later objection. There had been no procedural unfairness. The claimants had been given a fair opportunity to raise their objections to the TPO, had received the report in sufficient time to enable them to make further comments and had raised no further matters of substance as a consequence of that report.
Peter Black (instructed by Hughmans Solicitors) appeared for the claimants; Simon Bird (instructed by Sharpe Pritchard) appeared for the defendant.
Sally Dobson, barrister
