Validity — Confirmation order modified to amend from “area order” to “woodland order” — Application to quash order — Planning authority exceeded powers by making amendment — High Court holding authority entitled to make confirmation order — Application dismissed
During the Easter weekend of 1994 the applicant commenced cutting down trees on his land at Bourne Mill, Farnham. This gave rise to local concern and on April 8 1994, as a matter of urgency, a tree preservation order in respect of the site was made under sections 198, 199 and 201 of the Town and Country Planning Act 1990.
The applicant objected. The objection was accompanied by a consultant’s report. On September 23 1994 the planning authority confirmed the order subject to a modification in the terms to amend from an “area order” to a “woodland order”. The plan in the April order was replaced. The applicant challenged the order.
Held The application was dismissed.
1. The true question for consideration was what the words of the statute itself allowed. The words of section 199(1) were very wide: “subject to such modifications as they consider expedient”. The ordinary meaning of the word “modifications” included the making of changes. There was no justification in the words of the statute which required the limitation of that meaning to “restrictive changes”. It could not be said that any modification which involved an extension of the scope of the order, however modest an extension, was outside the powers given under section 199(1). However, the power to modify should be narrowly and strictly construed: see Stevens v The General Steam Navigation Co Ltd [1903] 1 KB 893; and Britnell v Secretary of State for Social Security [1991] 2 All ER 726.
2. The provisions of the 1990 Act gave power to the local authority which imposed substantial restrictions on a landowner. The Act provided a consultation process based upon the provisional order and for the final order to take account of that consultation. So it was right that exercise of the power to modify should be narrowly and strictly construed, but not so narrowly and strictly construed as to exclude every modification which was properly described as an extension of the scope of the original order. Whether it was sufficiently significant an extension to take it outside the narrow, strict interpretation of the power to modify would depend upon the circumstances prevailing in any particular case.
3. The circumstances of the present case were that, as a matter of urgency, the local planning authority sought to protect an area which was wooded. After the emergency was over that authority took the view that a more accurate description of that wooded area would have been “woodlands” rather than “area”. The land in question included a large number of individual trees and covered the same area. Those circumstances indicated that the modification was one which should not be regarded as so significant as to take it outside the words of section 199.
4. Moreover, there would be nothing to prevent the landowner removing scrub and shrubs to prevent the “land running wild”: see Bullock v Secretary of State for the Environment (1980) 40 P&CR 246.
5. In substance what had happened was that there was a change of label over the same land and the same trees and the change fell within the powers of modification under section 199.
Keith Wylie (instructed by Metcalfe & Co, of Bordon) appeared for the applicant; Nathalie Lieven (instructed by the solicitor to Waverley Borough Council) appeared for the local planning authority.
