Tree preservation order – Whether order complying with statutory requirement – Whether inspector failing to take account of national advice – Judge finding non-compliance with statute not sufficient reason in circumstances of case to quash order
The applicant was the owner of land at Shiplake Bottom, Sonning Common. In 1996 the respondent council were concerned that the applicant was selling off part of the woodland to the owners of adjoining houses for incorpration into back gardens. It was considered that the woodland was being adversely affected. On February 10 1997 the respondent council received a letter from the Forestry Commission complaining, inter alia, that an area of Old Copse Wood was being sold to local residents. Apparent breaches of planning control were investigated by the council and a Tree Preservation Order (No 17) was made on June 11 1997. The applicant’s agent objected stating that the TPO was unnecessary since the land had been “planted with the aid of a Forestry Commission grant following the clear fell of the previous crop of trees 14 years ago”. On September 10 1997 the council’s planning committee considered the applicant’s objection and also, as consultees to the Forestry Authority, an application which the applicant had made for a woodland grant scheme (the grant) for its relevant land. The officer advising the committee recommended no objection to the grant because the proposals constituted sound silvicultural management and would certainly be accepted by the Forestry Commission. He also recommended that the TPO not be confirmed. Although accepting the advice in respect of the grant, the committee, who had made a site inspection on September 10 prior to their meeting, confirmed the TPO in order to secure continuing protection of the entire TPO area (the grant scheme covered about half the TPO order area) on account of development already carried out in the woodland.
The applicant challenged the order submitting, inter alia, that a TPO, made under section 198 of the Town and Country Planning Act 1990, could be made only if, in relation to land in which the Forestry commissioners had an interest, the commissioners consented to the making of the order: see section 200(1) of the 1990 Act. He also contended that the council had failed to take account of a relevant consideration, namely the advice contained in Circular 36/78 to the effect that it was unlikely to be expedient to make a TPO in respect of trees which were under good arboricultural management.
Held The application was dismissed.
Although there had been two errors in the decision making process, those errors did not justify quashing the TPO. The first error was the failure to have the consent of the Forestry Commissioners. The statutory requirement under section 200(1) was plain and unambiguous. Consent had not been given and the statute had not been complied with since the Commissioners had not consented to the making of the TPO when it was confirmed. However, there was clear evidence that consent would have been given if matters had so proceeded that consent was specifically sought.
The second error was the failure to take account of national government policy advice that it was unlikely to be expedient to make an order in respect of trees under good management. However, this advice did not replace the statutory requirement under section 198 of the 1990 Act, which placed the decision making clearly and widely upon the local authority. In all the circumstances there was no justification for concluding that had the omitted government advice been taken into account, a different decision would have been reached.
Neil King (instructed by Clarks, of Reading) appeared for the appellant; Richard Langham (instructed by the solicitor to South Oxfordshire District Council) appeared for the respondents.
