Tree preservation order – Confirmation – Respondent council making and confirming TPO on grounds relating to likely damage to trees from proposed construction of roadway along existing permissive path – Whether TPO made for improper purpose of compelling construction of surfaced roadway to particular standard – Whether justified in light of condition of trees – TPO upheld – Appeal dismissed
In February 2012, the respondent council made a provisional tree preservation order (TPO), under section 198(1) of the Town and Country Planning Act 1990, in respect of trees at a property in Finchampstead that the appellant had recently acquired. The order covered six species of trees within a 5m strip of land adjacent to a permissive path. The respondents indicated that the TPO was made in response to recent tree felling undertaken on the property and the likelihood of development on the site, in particular by the installation of a surfaced roadway along the permissive path, which would potentially cause significant harm to the roots and canopy of the trees so reducing their amenity value to the public and their status as a historic field boundary.
The appellant objected to the TPO and made representations against it by reference to the contents of a tree consultant’s report. In July 2012, the respondents confirmed the TPO on the same grounds as before on the recommendation of their tree and landscape officer.
The appellant’s challenge to that decision, brought under section 288 of the 1990 Act, was dismissed in the court below: see [2012] EWHC 3305 (Admin). The appellant appealed. With regard to the planned roadway, it contended that it was already entitled to use the track in its unsurfaced state, which was likely to be more damaging to the roots of the trees than use of a surfaced track, and that the respondents were improperly seeking to use the TPO to compel the construction of a roadway to a particular standard. It submitted that if the respondents sought to do that, they should have proceeded by way of a response to its earlier notification of an intention to install the roadway under the Town and Country Planning (General Permitted Development) Order 1995, which would have enabled the respondents to require prior approval of the siting and means of construction. In a separate ground of challenge, it also contended that its tree consultant’s report showed that most of the trees in the relevant area were not safe, healthy or capable of reasonably long life and were contributing damage to buildings, such that a TPO was inappropriate.
Held: The appeal was dismissed.
(1) Both at the time when the provisional TPO was made and the time of its confirmation, the respondents were entitled to be concerned about the risk of damage to the roots of the trees by the continued use of the unsurfaced track or by the use of the track surfaced to an inadequate standard. They were also entitled to be concerned that the canopies of the trees were at risk of damage from vehicles or by pruning to an inadequate standard. The TPO was not directed at achieving an objective, namely the surfacing of the road to a particular standard, that was beyond the respondents’ powers. The respondents’ concern was that the track should not be used in a manner that caused damage to the tree roots. That was a legitimate concern. It was for the appellant to decide how its use of the track would avoid occasioning such damage.
(2) It was a misreading of the tree consultants’ reports to conclude from it that they considered the majority of the trees in the protected area to be unsafe, unhealthy or incapable of reasonably long life. Although that was the case with some of the trees, it was a matter that the respondents’ officer had recognised. The respondents had been entitled to form the judgment that it was expedient to make an area TPO in respect of the species of trees that the TPO identified.
David Fletcher (instructed by Thrings LLP, of Bristol) appeared for the appellant; Hugh Flanagan (instructed by Shared Legal Solutions, of Wokingham) appeared for the respondent.
Sally Dobson, barrister
