Town and country planning – Tree preservation order – Undertaking – Appellants operating caravan site with planning permission – Trees felled in breach of TPO – Appellants giving undertaking as to future compliance with TPO – Subsequent application for release from undertaking – Whether given on basis of false understanding of law – Whether felling of trees otherwise lawful under exemption in TPO for work immediately necessary for purpose of development authorised by planning permission – Appeal dismissed
The appellants operated a caravan site on land in Wrotham, Kent, which had been so used for many years. In 1983, the respondent council had granted a planning permission for the continuation of that use. In the same year, the respondents had made a tree preservation order (TPO) prohibiting the cutting down, topping, lopping, uprooting or wilful damaging or destruction of protected trees on the land without the respondents’ consent. The TPO was subject to an exemption where work to trees was immediately required for the purpose of carrying out development authorised by the planning permission. Various further planning permissions and site licences for the caravan site use were granted over the following years, as were consents for work to protected trees.
In February 2008, trees were felled in breach of the TPO, and in breach of an injunction granted by the court to the respondent council. The respondents brought proceedings against various persons, including the appellants and their father, for committal for contempt of court. In the course of those proceedings, the appellants gave an undertaking not to cut down, lop, top, damage, uproot or destroy any tree on their land.
The appellants complied with the undertaking until November 2014, after which the felling of trees recommenced. The appellants applied to the court for release from the undertaking on the ground that it had been given on the basis of a false understanding of the law.
The appellants argued that, but for the undertaking, they would be lawfully entitled to fell trees on the land without breaching the TPO. They relied on the terms of the planning permissions for the caravan site in combination with the exemption in the TPO. They argued that, under the planning permissions, they were free to station any number of caravans anywhere on the site and that they did not need to seek the respondents’ consent for work to protected trees so far as it was required to accommodate the caravans.
Dismissing the application, the judge held that a planning permission that permitted the continuation of use of the land as a caravan site, rather than authorising any operational development, did not exclude the subsequent imposition of a TPO and that the felling of trees was not necessary to implement the permission. The appellants appealed.
Held: The appeal was dismissed.
(1) The legislative regime for tree preservation orders did not stand apart from the comprehensive statutory scheme for land use planning, but was an integral and important part of that statutory scheme. There were two means by which a local planning authority could achieve formal protection for trees, and control over work to trees that have been given such protection, namely the imposition of conditions on the grant of planning permission and the making of TPOs. Those methods could be used either in combination with each other or separately, as a matter of the local planning authority’s discretion. The authority’s power to make a TPO, and the consequent statutory protections for the tree or trees included in that order, therefore complemented their functions in making decisions on proposals for development, including the power to impose conditions on grants of planning permission.
(2) Looking at the whole sequence of planning permissions and consents for work to protected trees granted between 1983 and 2014, there was nothing inconsistent between the respondents’ decision-making on applications for planning permission and their decisions directly affecting the trees protected under the TPO. The planning history showed that the respondents had exercised their development control powers entirely consistently with the use of their powers to maintain the protection of those trees.
The 1983 planning permission permitted a continuation of an existing use and none of the attached conditions specified or limited the number of caravans that could be stationed on the site at any one time. However, that did not mean that the TPO should be understood as prohibiting work to trees on the land only until the owner of the land chose to put a caravan or caravans in a location that would necessitate felling one or more of the protected trees or carrying out some other work short of felling.
Construed in context, and according to the ordinary meaning of the words used, the exemption in the TPO meant that it had to be necessary, as an immediate requirement, to undertake work to protected trees to make it possible to carry out development for which planning permission had been granted or deemed to be granted. If the felling of a protected tree was “immediately required”, because the landowner would otherwise be unable to carry out the development in question, then he would not need the respondents’ consent for the work. But if it were possible for the planning permission to be implemented without such work being undertaken, the work would not be “immediately required” for that purpose and it would not be lawful to do it without the necessary consent. In such circumstances, the development could still be carried out under the planning permission or deemed planning permission, but it could not lawfully be carried out in such a way as to negate the protection afforded to the trees by the TPO. The critical question was whether the development was capable of being carried out without destroying or injuring trees protected by the TPO. That was not a question of a developer’s preference; it was a question of fact.
In the instant case, the development approved by the 1983 planning permission could be carried out in various ways. By the time the TPO came into effect, the use of the site as a caravan site had existed for some time. It was capable of being carried out, and had been carried out, without the need for protected trees to be removed or cut back. The planning permissions and the TPO were perfectly compatible with one another. The development did not require the felling of protected trees and could be carried out without any trees having to be cut down. However, the felling of protected trees was still possible provided the respondents’ consent was obtained.
(3) In those circumstances, it was not appropriate to release the appellants from their undertaking. The undertaking remained both valid and necessary. It was freely given to the court and was not based on a false understanding of the planning permissions or of the TPO, or in ignorance of the law relating to the protection of trees. Moreover, the application for release was made very late, more than seven years after the undertaking was given. In such circumstances, the likelihood of prejudice to a respondent was obvious. There was likely to be real prejudice to good administration if landowners were permitted, long after the event, to avoid the consequences of orders made by the court or undertakings given to it. Local planning authorities, and the public, were entitled to expect such orders and undertakings to be complied with and, if need be, enforced.
Alan Masters (instructed by Stokes Solicitors LLP, of Portsmouth) appeared for the appellants; Richard Ground QC (instructed by the legal department of Tonbridge and Malling Borough Council) appeared for the respondents.
Sally Dobson, barrister
Click here to read a transcript of Barney-Smith and another v Tonbridge and Malling Borough Council
