Tree preservation order — Permission refused to fell trees — Claim for compensation — Land value higher for alternative agricultural purposes — Lands Tribunal awarded sum to include loss of value of land — Whether decision of Lands Tribunal correct in law
The claimant
was the owner of farmland and some woodlands containing scrub and coppice. The
claimant intended to grub out and clear the trees and convert the land to
agricultural purposes. The woodland was made the subject of a tree preservation
order in 1982 in the form prescribed by the Town and Country Planning (Tree
Preservation Order) Regulations 1969. The order prohibited, inter alia,
the felling of the trees and contained a right to claim compensation. In 1983
the claimant was refused permission to clear some 39 acres of the woodlands and
his appeal against that refusal was dismissed by the Secretary of State for the
Environment in 1984. In May 1985 the claimant referred his claim for
compensation to the Lands Tribunal. In November 1985, and just before the
tribunal hearing, the local planning authority passed a resolution to the
effect that had they consented to the proposed felling they would have imposed
a replanting direction under article 6 of the tree preservation order. The
award of the Lands Tribunal was primarily based on the difference between the capital
value of the land in its present state, and subject to the order, of £ 450 per
acre, and its value as agricultural land of £ 1,900 per acre less the costs of
reclamation (see [1986] 2 EGLR 209). The local planning authority appealed by
way of a case stated, contending that the compensation should be limited to the
loss of the value of the timber alone and that article 6 of the tree
preservation order, which provided that if consent were granted to fell any
part of the woodland, then a replanting direction would be issued, had to be
taken into account, as a replanting direction would have had the effect of
diminishing the value of the land. It was also argued that the measure of
compensation as defined in section 174 of the Town and Country Planning Act 1971
of ‘loss or damage’ did not include any depreciation in the value of land.
appeal was dismissed.
1. Article 6
of the tree preservation order derived its authority from section 60(1)(b)
of the Town and Country Planning Act 1971, and the power to impose a replanting
direction under the article was limited to cases where consent was given to
felling for forestry operations. In any event, as forestry operations were not
intended by the claimant in the present case, the passing of the resolution by
the local planning authority in November 1985, with the intention of defeating
any compensation claim based on a depreciation of the land value, was
unreasonable under the Wednesbury principle; it was unreasonable to
grant a felling consent and at the same time deny its value by imposing a
replanting direction, see pp 72F-73A and p 74G.
2. Section 174
of the 1971 Act is an enabling provision regarding compensation and does itself
give a right to compensation. The terms and measure of compensation are set out
in the tree preservation order itself: ‘loss or damage in consequence of any
refusal . . . of consent’. The diminution in the value of the land was a
natural and probable consequence of the refusal of consent, it was not too
remote and was recoverable, see pp 73E-74C.
3. Quaere,
whether grubbing out trees was development permitted under Class VI of the Town
and Country Planning General Development Order 1977, see p 74D.
to in the judgments
Amalgamated
Investment & Property Co Ltd v John Walker
& Sons Ltd [1977] 1 WLR 164; [1976] 3 All ER 509; (1976) 32 P&CR
278; [1976] EGD 166; 239 EG 277, [1976] 2 EGLR 63, CA.
Associated
Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223; [1947] 2 All ER 680; (1947) 45 LGR 635, CA.
Hoveringham
Gravels Ltd v Secretary of State for the
Environment [1975] 1 QB 754; [1975] 2 WLR 897; [1975] 2 All ER 931; (1975)
73 LGR 238; 30 P&CR 151; [1975] EGD 496; 235 EG 217, [1975] 2 EGLR 123, CA.
Appeal from
the Lands Tribunal
This was an
appeal by way of a case stated from a decision of the Lands Tribunal
determining a reference of a claim for compensation following the refusal of
permission to fell trees protected by a tree preservation order made in the
form prescribed by the Town and Country Planning (Tree Preservation Order)
Regulations 1969.
Carnwath QC and Edward Cohen (instructed by the solicitor to Canterbury City
Council) appeared for the appellant local planning authority.
Milner (instructed by Kingsford, Flower & Pain, of Ashford, Kent) appeared
for the respondent claimant.
first judgment was given at the invitation of Slade J.
RUSSELL LJ: This case is concerned with the level of compensation to be awarded
to a landowner who is refused permission by a local authority to fell trees on
his land when such land is subject to a tree preservation order. The
appellants, the Canterbury City Council, contend that compensation is basically
limited to the commercial value of the timber which the landowner cannot
realise because of the refusal of permission. The respondent, a farmer,
contends that if the value of the land itself is diminished as a result of the
refusal of permission, such diminution in value of his interest in the land is
a proper head of claim. The matter comes before this court on appeal by way of
case stated from the Lands Tribunal, the member of the tribunal, C R Mallett
Esq FRICS, having found in favour of the respondent’s submissions as to the
basis of compensation and having rejected the narrower approach of the local
authority. Other supplementary matters were originally in dispute between the
parties, but it is now agreed that if the basic approach of the Lands Tribunal
were appropriate, the award of compensation should be £ 38,851.27. If the
appeal succeeds, then the value of the timber involved is such that, after
making the appropriate deductions for its acquisition and sale, no compensation
is due to the claimant.
The facts fall
within a comparatively small compass and are, for the most part, contained in
the written decision of the tribunal. Mr P J Bell, the claimant, purchased
Great Palmstead Farm, Upper Hardres, in 1970. It comprised a stock and arable
farm of some 114 acres including a dilapidated farm house and derelict farm
buildings. Mr Bell sought to improve the holding and grant approval was sought
and obtained from the Ministry of Agriculture, Fisheries and Food to a six-year
development plan dated July 31 1980, under the Agriculture and Horticulture
Development Scheme.
In 1981 Mr
Bell purchased some 88 acres of adjoining woodland. After consulting with his
professional advisers, he applied to the ministry for a variation in the
development plan involving clearing scrub and coppice from 50 acres of the
woodland and converting it to grazing land. He purchased a bulldozer and
proceeded to clear two acres of woodland, whereupon the Canterbury City Council
served on him the Canterbury City Council (Quilters Wood, Middle Wood,
Featherley Wood, part of Mill Bank Wood and part of Atchester Wood,
Kingston/Upper Hardres) Tree Preservation Order No 3,
by the city council, but there is a provision in the Town and Country Planning
Act 1971 (as amended) for this to be done in cases of urgency. The order was in
the form prescribed by the Town and Country Planning (Tree Preservation Order)
Regulations 1969 and, in general terms, it provided that, except with the
consent of the authority and in accordance with conditions (if any) imposed on
such consent, no person could cut down any tree specified in the First Schedule
to the order or comprised in a woodland therein specified. The First Schedule
included what ultimately became the area involved in this appeal, namely
Quilters Wood and Featherley Wood. Together they amounted to 39.1 acres of
woodland.
In 1982 the
claimant was successfully prosecuted for grubbing out 2.9 acres of the land
covered by the order without permission.
On March 30
1983 Mr Bell submitted an application to the authority to grub out the 39.1
acres and, in accordance with the requirement of article 3 of the order, he
indicated in writing to the authority his reasons for making the application,
namely, to provide grazing for ‘a beef/sheep enterprise’. In the application
form itself, the proposed operation was described as ‘to grub out the trees so
that the land may be used for agriculture’.
On June 15
1983 permission was refused by the local authority on amenity grounds and also
because the proposed works were said to be contrary to the Kent structure plan.
The claimant appealed, but after a local public inquiry in February 1984 the
Secretary of State dismissed the appeal.
On May 29 1985
the claimant referred his claim for compensation to the Lands Tribunal. Before
the hearing, on November 27 1985, the Canterbury City Council passed a
resolution in the following terms:
That, as a
matter of urgency because of the time limit involved, it be confirmed that had
the Council granted consent to fell or grub out trees on part of the woodland
the subject of the above tree preservation order, a direction would have been
made to replant the land in accordance with article 6 of the tree preservation
order.
It will be
necessary to return to this resolution later in this judgment. The decision of
the Lands Tribunal is dated June 5 1986, after a hearing which occupied some
four days. The fundamental basis of Mr Mallett’s award was that the current
capital value of the land in its present state was £ 450 per acre, whereas its
value, if reclamation for grazing land had been permitted, would have been £
1,900 per acre.
I turn to the
statutory provisions affecting the appeal. Section 60 of the Town and Country
Planning Act 1971 provides, so far as it is material:
If it appears
to a local planning authority that it is expedient in the interests of amenity
to make provision for the preservation of trees or woodlands in their area,
they may for that purpose make an order (in this Act referred to as a ‘tree
preservation order’) with respect to such trees, groups of trees or woodlands
as may be specified in the order; and, in particular, provision may be made by
any such order —
(a) for prohibiting (subject to any exemptions
for which provision may be made by the order) the cutting down, topping,
lopping or wilful destruction of trees except with the consent of the local
planning authority, and for enabling that authority to give their consent
subject to conditions;
(b) for securing the replanting, in such manner
as may be prescribed by or under the order, of any part of a woodland area
which is felled in the course of forestry operations permitted by or under the
order . . . .
The tree
preservation order, with which this case is concerned, contained the following
material articles to which hitherto I have made no reference. Article 4 is in
these terms:
(1) Where an application for consent is made to
the authority under this order, the authority may grant such consent either
unconditionally, or subject to such conditions (including conditions requiring
the replacement of any tree by one or more trees on the site or in the
immediate vicinity thereof), as the authority may think fit, or may refuse
consent.
Provided that
where the application relates to any woodland specified in the first schedule
to this order the authority shall grant consent so far as accords with the
principles of good forestry, except where, in the opinion of the authority, it
is necessary in the interests of amenity to maintain the special character of
the woodland or the woodland character of the area, and shall not impose
conditions on such consent requiring replacement or replanting.
This article,
therefore, expressly precluded the appellants from granting any consent
conditional upon the replacement or replanting of trees in the woodlands with
which this case is concerned. So much was acknowledged by counsel for the local
authority.
Reliance,
however, was placed upon article 6, which reads as follows:
(1) Where consent is granted under this order to
fell any part of a woodland other than consent for silvicultural thinning then
unless —
(a) such consent is granted for the purpose of
enabling development to be carried out in accordance with a permission to
develop land under Part III of the Act, or
(b) the authority with the approval of the
Secretary of State dispense with replanting,
the authority
shall give to the owner of the land on which that part of the woodland is
situated a direction in writing specifying the manner in which and the time
within which he shall replant such land and where such a direction is given and
the part is felled the owner shall, subject to the provision of this order and
section 175 of the Act, replant the said land in accordance with the direction.
There follows
an immaterial subparagraph dealing with the requirements of such a direction.
As to (a),
it was not submitted to the Lands Tribunal that the operation contemplated by
Mr Bell did amount to development under Part III of the Act (see section
22(2)). As to (b), there had, of course, been no dispensation approved
by the Secretary of State.
In my judgment
article 6 plainly derives its authority from section 60(1)(b) of the
Act, and by virtue of its provisions is confined to cases where any part of a
woodland area ‘is felled in the course of forestry operations’. I strongly
suspect that in the instant case the local authority felt that they were
obliged, by virtue of article 6, to give the direction to replant in the event
of giving consent. If that was the motivation behind the passing of the
resolution of November 27 1985 it was misconceived; if it was not, it is
difficult to understand how any local authority could reasonably give consent
to the felling of trees for the purposes of reclaiming the land for grazing
while, at the same time, requiring replanting of those trees, thereby defeating
the whole purpose of the operation and the object of the consent. In my view
the position would be quite different in what I understand is meant by the
phrase ‘forestry operations’. No statutory definition of the phrase is to be
found in the statute or regulations made under it, but I am firmly of the
opinion that what was contemplated by the claimant did not involve forestry
operations and that consequently article 6 did not require the local authority
to serve a direction. That the article was intended to relate exclusively to
forestry operations is, in my judgment, clear not only from the provisions of
section 60 itself but from the wording of article 6. ‘Silvicultural thinning’
referred to in article 6 is an activity confined to what one would normally
regard as forestry operations.
The local
authority plainly took the view that by passing the resolution to which I have
referred they were effectively preventing the claimant from mounting any claim
based upon differences in land values, because no diminution in land value
could arise if, when giving consent, there was a contemporaneous direction to
replant. I repeat that, in my opinion, the proposals of the claimant did not
constitute forestry operations which, I venture to suggest, involve the
commercial exploitation of timber.
That is enough
to dispose of the submission made on behalf of the appellants that the effect
of the resolution was to defeat Mr Bell’s claim for compensation but, even if
the giving of a direction to replant had been open to the appellants, its
exercise to take effect contemporaneously with the consent would, in my
judgment, have been Wednesbury unreasonable — as the Lands Tribunal
concluded.
Before leaving
this part of the case, it is worth observing that compensation is not payable
in every case where the local authority refuses consent. Article 5 provides:
Where the
authority refuse consent under this order or grant such consent subject to
conditions they may when refusing or granting consent certify in respect of any
trees for which they are so refusing or granting consent that they are
satisfied —
(a) that the refusal or condition is in the
interests of good forestry; or
(b) in the case of trees other than trees
comprised in woodlands, that the trees have an outstanding or special amenity
value.
The proviso to
article 9 reads:
. . . no
compensation shall be payable in respect of loss or damage suffered by reason
of such refusal or grant of consent in the case of any trees the subject of a
certificate in accordance with Article 5 of this order.
I move on to
consider other submissions of counsel. Section 174 of the 1971 Act provides:
The matters
for which provision may under section 60 of this Act be made by a tree
preservation order include the payment by the local planning authority, subject
to such exceptions and conditions as may be specified in the order, of
compensation in respect of loss or damage caused or incurred in consequence of
the refusal of any consent required under the order, or of the grant of any
such consent subject to conditions.
This, then, is
the enabling provision. It is not the statute itself which sets out the terms
upon which compensation is to be payable but the tree preservation order.
Article 9, the
proviso to which I have referred, reads:
Subject to
the provisions of this order, any person who has suffered loss or damage in
consequence of any refusal (including revocation or modification) of consent
under this order or of any grant of any such consent subject to conditions,
shall, if he makes a claim on the authority within the time and in the manner
prescribed by this order, be entitled to recover from the authority
compensation in respect of such loss or damage:
As to the
measure of compensation, the operative words are ‘loss or damage in consequence
of any refusal of consent’.
Counsel for
the appellants drew our attention to various provisions in the 1971 Act dealing
with the measure of compensation consequent upon other refusals of consent by
local authorities exercising planning functions. It is true that in some cases
there is express reference to the depreciation of value of an interest in land
as a basis for compensation. The absence of any such provision in section 174,
submits counsel, is significant. I disagree. Section 174 does not
the interpretation of which should, in my judgment, be read without reference
to other provisions in the Act of Parliament.
Counsel for
the respondent submits that the words of article 9 should be given their
ordinary meaning and that the proved diminution in the value of the claimant’s
interest in his land amounts to ‘loss or damage in consequence of a refusal of
consent’. Nothing is to be found in the order which could justify limiting
compensation in the way suggested by the local authority. Nor was any such limitation
to be found in the enabling statute. I agree with these submissions and, for my
part, I would reject the argument advanced on behalf of the local authority by
their counsel to the effect that the loss suffered by the claimant as a result
of his inability to reclaim his land for agricultural grazing was a consequence
of the order itself, as opposed to the refusal which, it was contended, simply
prevented the cutting down of trees.
In my view the
diminution in the value of the land was a natural and probable consequence of
the refusal of consent, within the contemplation of the local authority
refusing consent. It was not too remote and was, therefore, recoverable. Its
proper assessment is to be derived from the words of article 9, not section 174
— hence the exclusion of section 174 from the provisions of section 178, to
which our attention was directed.
Counsel for
the respondent did seek to argue that the grubbing-out operation was an
engineering operation within Class VI of the Town and Country Planning General
Development Order 1977 and that consequently it did amount to development under
Part III of the Act so as to exclude the operation of article 6 in any event.
For my part I have my reservations about this submission, not least because we
have insufficient evidence to rule definitively upon it. The point was not
taken before the Lands Tribunal, and in the light of the views I have earlier
expressed as to article 6 and its applicability, it is unnecessary to prolong
this judgment by any further discussion of the true nature of the claimant’s
operations in a planning context.
I hope that in
this judgment I have answered the relevant questions posed at the end of the
case. Because the parties have come to terms on matters of detail, some of the
questions are no longer appropriate. I would dismiss the appeal.
TAYLOR LJ: I would add only two further reasons in support of what Russell LJ
has said.
The first
concerns the scope of article 6 of the order. I agree that it is included in
pursuance of section 60(1)(b) of the Act and is therefore concerned only
with forestry operations. That view is supported by the text of the article
itself. After referring to the direction to replant, it continues:
. . . and
where such a direction is given and the part is felled the owner shall, subject
to the provision of this order and section 175 of the Act, replant the said
land in accordance with the direction.
Section 175 of
the Act provides for compensation where a direction to replant has been given.
Subsection (1) reads:
The
provisions of this section shall have effect where, in pursuance of provision
made by a tree preservation order, a direction is given, by the local planning
authority or the Secretary of State, for securing the replanting of all or any
part of a woodland area which is felled in the course of forestry operations
permitted by or under the order.
Thus, article
6, by invoking section 175, clearly proclaims itself to be related to forestry
operations.
My second
point concerns Mr Carnwath’s submission that it was the making of the tree
preservation order itself and not the refusal of consent which precluded Mr
Bell from converting his land for grazing. Thus the claim for compensation
fails, it is said, on grounds of causation.
If this
argument be right, then it would apply equally to compensation for the
commercial value of the timber. The inability of Mr Bell to cut down his trees
must result from the same causative factor whether his complaint is that he
cannot sell his timber or that he cannot graze his livestock. Yet Mr Carnwath
concedes that Mr Bell is entitled to compensation for loss of the sale value of
his timber.
In my
judgment, that involves a distinction which cannot logically be justified. I
consider both heads of loss resulted from the refusal of consent, so that the
causation argument fails.
SLADE LJ: I will add some observations of my own only out of deference to Mr
Carnwath’s argument.
The member of
the Lands Tribunal in his decision described the issue before him as being
‘determination of compensation payable under section 174 of the Town and
Country Planning Act 1971’. Strictly, section 174 does not itself afford any
entitlement to compensation. All it does is to authorise the inclusion of
provisions for compensation of a specified nature in a tree preservation order
made under section 60 of that Act.
Article 9 of
the Tree Preservation Order No 3, 1982 states:
Subject to
the provisions of this order, any person who has suffered loss or damage in
consequence of any refusal (including revocation or modification) of consent
under this order or of any grant of any such consent subject to conditions,
shall, if he makes a claim on the authority within the time and in the manner
prescribed by this order, be entitled to recover from the authority compensation
in respect of such loss or damage:
Article 9 ends
with a provision which does not affect the claimant’s rights to compensation in
the present case.
On June 15
1983 the appellant council refused its consent under the order to Mr Bell’s
application to grub out about 39.1 acres of woodlands so that the land might be
used for agriculture. The Lands Tribunal found that the value of the land in
its current state is £ 450 per acre, but the value of the land as reinstated
pasture land would be £ 1,900 per acre.
Prima facie, therefore, the loss or damage suffered by the claimant in
consequence of the refusal of consent under the order was the difference
between the value of the land in its present state and its value as reinstated
pasture land and was recoverable by him under article 9 accordingly. This was
in substance the basis upon which the member made his award.
If I correctly
followed Mr Carnwath’s argument, there were three principal reasons why he
submitted that the member erred in law in reaching this conclusion, though I do
not summarise these reasons either in the same order or in the same terminology
as he employed.
First, he
referred us to a number of sections in the 1971 Act (for example, sections 164,
169, 170 and 171) which explicitly provide for a person to receive compensation
for a depreciation in the value of his interest in land in the contingencies
there specified. He also referred to section 178 which, with certain stated
exceptions of which section 174 is one, renders the provisions of section 5 of
the Land Compensation Act 1961 applicable for the purpose of assessing any
compensation which, under the preceding provisions of Part VIII of the 1971
Act, is payable in respect of depreciation of the value of an interest in land.
He submitted that these sections of the 1971 Act show that where the value of
an interest in the relevant land falls to be considered as a
element.
I do not think
the submission advances the council’s case. Section 178(2) provides:
This section
applies to any compensation which, under the preceding provisions of this Part
of this Act other than section 174, 175 or 177 is payable in respect of
depreciation of the value of an interest in land.
Section 174(2)
thus shows that the legislature contemplated that a tree preservation order
made under the authority conferred by section 60 and 174 might contain
provisions rendering compensation payable in respect of depreciation of the
value of an interest in land. It is not suggested that article 9 of the tree
preservation order in the present case was ultra vires. The only
question, therefore, is whether, on its true construction, article 9 does
render compensation payable in respect of such depreciation. The language of
the article is very broad and, subject to what is said below, I can see no
sufficient grounds for restricting its meaning so as to exclude compensation in
respect of this particular category of loss.
Second, Mr
Carnwath correctly pointed out that no compensation is available for the
imposition of the tree preservation order itself. He submitted that the
claimant in the present case had purchased the land in question subject to the
inherent risk that such an order might be made, just as the plaintiffs in Amalgamated
Investment & Property Co Ltd v John Walker & Sons Ltd [1977]
1 WLR 164 had bought their land subject to the inherent risk that the building
could be listed as of architectural or historic interest. In his submission, it
was the making of the tree preservation order itself, not the refusal of the
consent to felling, which precluded the claimant from converting his land to
agriculture. In these circumstances, it was submitted, the refusal of consent
caused no depreciation of the claimant’s interest in the land. By way of
analogy, some reliance was placed on the decision of this Court in Hoveringham
Gravels Ltd v Secretary of State for the Environment [1975] 1 QB
754.
In my
judgment, the short answer to this point is that the tree preservation order
carried with it (under article 9) the right for the claimant to receive the
compensation properly due to him under the article, if and when an application
was thereafter made under the order to fell trees and that application was
refused. Only when his subsequent application was refused on June 15 1983 did
his loss occur — and his corresponding right to compensation arise.
It is now
common ground that the amount of the compensation (if any) falls to be assessed
as at the date of the refusal of consent, namely, June 15 1983.
Third, and as
his principal point, Mr Carnwath submitted that even if his other submissions
were ill-founded, the claimant, as at June 15 1983, had suffered no loss and
accordingly would be entitled to no compensation because the council, if it had
given consent, would have been entitled and bound to give him a direction for
replanting of the relevant land under article 6 of the tree preservation order.
The council’s resolution of November 27 1985, in his submission, accurately
reflected what would have happened if consent had been given. I agree with
Russell LJ and Taylor LJ that article 6, while not expressly so stating, must
be confined to cases where consent is granted under the order to the felling of
a part of a woodland in the course of forestry operations. Though Mr Carnwath
drew our attention to the general words at the beginning of section 60(1) of
the 1971 Act, I think it clear that article 6 was made pursuant to the
authority given by the particular words of section 60(1)(b), and with
those particular words in mind. The exception of
article is dealing with consent given for the purpose of forestry operations.
So does the reference in article 6 to section 175 of the 1971 Act, as Taylor LJ
has explained.
I can see no
compelling reason why the authority should need a power to impose conditions or
directions requiring the replacement of trees comprised in a woodland where it
gives its consent to the felling of such trees for the purpose of non-forestry
operations, and I do not think that the prescribed form of order gives it any
such power.
In cases where
consent is given to the felling of trees not comprised in woodlands, the
position in regard to replacement is sufficiently covered by article 4, which
empowers the authority, in giving consent, to impose conditions requiring the
replacement of trees. In general terms, article 5 of the order (quoted in
Russell LJ’s judgment), read together with article 9, seems to me to indicate
the clear intention of the order that a person who has suffered loss or damage
in consequence of any refusal of consent under the order, or of any grant of
consent subject to conditions, in respect of trees comprised in woodlands,
shall be entitled to compensation unless the refusal or condition is in the
interests of good forestry, and the authority has so certified under article 5(a).
(The certificate procedure under article 5(b) is not available in
respect of trees comprised in woodlands.)
For these
reasons I am unable to accept what I have understood to be the three principal
submissions advanced by Mr Carnwath. As regards the other points arising on
this appeal, I do not wish to add anything to the judgment of Russell LJ.
I would vary
the decision of the Lands Tribunal by substituting a figure of £ 38,851.27 for
the sum awarded to the claimant by way of compensation but, subject to this
variation, would dismiss this appeal.
The appeal
was dismissed with costs. Leave to appeal to the House of Lords was refused.
