Validity–Confirmation of tree preservation 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 — Appeal allowed–Tree preservation order quashed
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. The ground for the order was that it was in the interests of the visual amenities of the area 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 unsuccessfully: see [1995] EGCS 61. He appealed arguing that the judge was wrong to hold that the council had the power to modify the tree preservation order by substituting, on confirmation, an order in terms of “woodlands” for what had been specified in the original order, namely “trees specified by reference to an area”. Section 199(1) of the Town and Country Planning Act 1990 provided: “A tree preservation order shall not take effect until it is confirmed by the local planning authority and the local authority may confirm any such order either without modification or subject to such modifications as they consider expedient”.
Held The appeal was allowed.
1. A power to modify conferred a right to enlarge as well as to restrict the ambit of that which was modified; and a power to modify a statute should be narrowly and strictly construed. Therefore, it would not be right to treat the provision contained in section 199(1) as one which must be narrowly and strictly construed. The words “subject to such modifications as they consider expedient” had to be given their full effect.
2. The question was whether the woodlands order made in September 1994 was a modification of the area order or whether in the circumstances it was a quite different order.
3. In the first instance it was for the authority rather than the court to form a judgment as to the degree of difference between the first order and the confirmed order. However, on the facts of this case the change from area to woodlands order had the effect of producing “a different animal” by bringing within the scope of the tree preservation order new trees. This ensured not merely that existing trees should be preserved and allowed to regenerate, but that the character of and the tree cover on the site should be restored to what it had been before the events of Easter 1994.
4. Accordingly, the woodlands order was so different in its operation and effect from the area order that it fell outside the wide ambit of the power to modify.
Brian Ash QC (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.
