Application — Landowner applying to fell woodland and trees on estate — Refusal of clear felling in interest of good forestry management — Public inquiry — Inspector reporting adversely to applicant — Allegation of bias against assessor — Whether failure of inspector to treat application on alternative basis of partial felling — High Court holding that no ground for suspecting bias — No basis on which to criticise inspector’s decision
The applicant was the owner of the Howe Court Estate, Hollingbourne. Soon after he purchased the estate in 1983, Maidstone Borough Council imposed a blanket provisional tree preservation order on all trees and woodland on the land. The area involved some thousands of trees. The applicant then appealed to the council and to the Forestry Commission to fell all the woodland and trees on the estate. The council confirmed all the provisional tree preservation orders so the applicant again sought permission for consent to fell. In December 1986 the council issued notices refusing felling permission and certifying that the refusal was in the interests of good forestry management. The applicant then appealed to the Department of the Environment against the council’s refusal.
In February 1987 the council issued enforcement notices requiring replanting of trees which had been felled in breach of the orders. The applicant lodged a notice of appeal. In September 1989 there was a public inquiry. In the notice of appeal giving rise to the inquiry under “Details of Application” it was stated: “1. To appeal against refusal by the authority of permission to fell the trees subject to the orders wholly or in part”.
The applicant contended that was sufficient to enable the inspector to deal with the case put forward in documents by the applicant’s expert that at any rate part of the site should be cleared of trees. The applicant did not appear at the inquiry and was not represented nor were any witnesses present on his behalf. However a statement was read on his behalf. On February 9 1990 the inspector reported adversely to the applicant. On July 30 1991, the Secretary of State gave a decision against the applicant, who appealed.
As the application and the appeal raised the same point they were dealt with together. The applicant contended that the inspector: (1) should not have been assisted in his inquiry by the particular assessor appointed by the Secretary of State because she had been a tree officer employed by Hillingdon London Borough Council at some time and therefore there was an appearance of bias at the inquiry; (2) failed to have regard to the documentary material provided by the applicant which he should have treated as evidence at the inquiry; and (3) that the inspector treated the application as an application to clear fell all the trees and did not consider the alternative basis of granting partial consent.
Held The application and appeal were dismissed.
1. Although there was no statutory requirement for the local planning authority to consult with interested parties in tree preservation order cases it was a matter of practice in relation to a large area to do so. The area in this case was one of outstanding natural beauty and it was unthinkable that the local authority would not consult with the local council and with any preservation society.
2. The proper test in relation to a complaint of bias was that if right-minded people would think that, in the circumstances there was a real likelihood of bias on his part, the assessor should not sit: see Metropolitan Properties Companies (FGC) Ltd v Lannon [1969] 1 QB 577. Applying that test in this case the allegation of bias was wholly unfounded and the inspector was right to reject it. No reasonably objective person could have had the slightest suspicion that the assessor might favour the council at the expense of the applicant.
3. It was clear that the council went to the inquiry to deal with the applicant’s application in relation to tree felling on the basis that it was an application for clear felling. It was particularly important in a case such as the present one, where a very large number of trees were concerned, that everybody should know precisely what trees were involved because it affected not only the application to fell but also the certificate which was also the subject of the appeal. It would have been possible for the inspector to adjourn the matter to allow time for consideration of a scheme put forward by the applicant’s expert for 20% felling, but he was not bound to do so. It was entirely a matter for his discretion. The inspector was entirely entitled within his discretion in the absence of evidence by the applicant as to the precise nature and extent of the tree felling proposal to treat the application as one for clear felling. The fact that the statement of the case and the expert’s report supported partial felling did not of itself require the inspector to consider it. He could not be criticised for not dealing with a claim for partial clearance in the absence of a clear application as to the precise nature of the case in evidence before him.
4. An inspector had wide powers and discretion as to how to conduct an inquiry under the Town and Country Planning Inquiry Procedure Rules 1988. It was clear from those rules that in the absence of oral evidence given by a witness an inspector was not required to take any account of written representations or documents; it was a matter for his discretion. In this case, having regard to his decision to treat the application as one for clear felling, having regard to the evidence given on behalf of the respondents and to the written representations by the applicant’s experts that clear felling was not a viable proposition, it was not surprising that the inspector came to the conclusion that clear felling was not a practical proposition.
5. There was nothing wrong in the inspector choosing not to treat the documentary material before him as evidence in the case. The proper approach was that in assessing the strength of the case for each side it was necessary to take account of the weight which should be given to evidence from all sources. As a general principle where there was doubt or conflict the greater weight should be accorded to evidence heard first hand at the inquiry which the inspector was able to test by questioning rather than to written representations.
6. There was nothing to prevent the applicant from now making an application for partial felling.
Camden Pratt QC (instructed by Hallet & Co, of Ashford) appeared for the applicant; David Holgate (instructed by the Treasury Solicitor) appeared for the Secretary of State of the Environment.
