Tree preservation order — Compensation — Whether notice of refusal satisfies article 5 of the tree preservation order — Whether certificate pursuant to article 5 legal and proper
In July 1989
the council refused to grant the claimant consent to clear-fell coppice
woodland. The notice of refusal referred to the woodland as an area of
outstanding natural beauty and special landscape; the refusal of consent being
in the interests of good forestry. Under the order compensation was not payable
for this ground. The claimant appealed against the refusal of consent
contending, inter alia, that the notice did not satisfy the requirements
of article 5 of the tree preservation order; it had not been signed by an
appropriate officer; it was not signed by an officer who had considered the
application, and finally the issue of good forestry had not been investigated.
The council’s decision was therefore not properly made, there being a
difference between granting a certificate and certifying.
issued.
It is
sufficient for article 5(a) if the authority identify or specify, ‘the
interests of good forestry’, among their reasons or grounds of refusal, and
clearly so inform the applicant at the same time as the substantive decision to
refuse consent is notified. There is no duty upon the authority, deriving from
the tree preservation order, to undertake investigations beyond normal
considerations adopted relative to town planning applications generally and no
entitlement in the applicant to receive certification in any particular format,
such as under seal: see p7B–D. The authority were entitled to avoid paying
compensation if the reason for refusal was in the interests of good forestry.
to in the decision
Bell v Canterbury City Council (1988) 86 LGR 635; 56 P&CR
211; [1988] 1 EGLR 205; [1988] 22 EG 86; [1988] 2 PLR 69; [1988] RVR 96, CA
Roberts v Watkins (1863) 14 CBNS 592
Reference to
the Lands Tribunal
This was a
hearing of a preliminary point of law in reference to determine the sum of
compensation payable, if any, under section 203 of the Town and Country
Planning Act 1990 following the refusal of permission to clear fell coppice
woodland protected by a tree preservation order.
Mr Henriques, appeared in person.
McKiernan (instructed by the solicitor to Swale Borough Council) appeared for
the compensating authority.
following decision was delivered.
DR T HOYES: This is a reference by the claimant dated November 1 1993 under
which a determination is sought as to his entitlement to compensation, if any,
following refusal of consent under the Town and Country Planning Act 1971 to
clear-fell coppice woodland included in the County of Kent (Swale Rural
District) Tree 5 Preservation Order No 1 1973.
The issue in the
preliminary point of law is in essence whether the notice of refusal of consent
issued by the council on July 13 1989 meets the requirements of article 5 of
the tree preservation order so as to result in no compensation being payable
under article 9 of the order. More particularly, whether or not a certificate
pursuant to article 5 was legally and properly issued. The words of the
relevant articles are as follows:
5. 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…
9. 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:
Provided that
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.
The
application for consent was initially made by Mr Henriques by letter to the
borough council dated March 28 1989 and sought ‘to cut down, without any
requirement to replant, all those trees growing on the said land and covered by
the said Order’. This application was subsequently amplified upon a standard
form dated June 12 1989 in which the proposed operation was, in terms,
described as clear felling of former coppiced trees.
A notice of
refusal of consent in the terms set out below was issued by the borough council
on July 13 1989 under the signature of RJ Harman, borough planning officer.
(i) The
woodland lies within the Kent Downs Area of Outstanding Natural Beauty and the
North Downs Special Landscape Area where it is the policy to give long term
protection and where normally priority will be given to landscape over other
planning considerations. The woodland is an
Its removal by clear felling would be contrary to Kent Structure Plan Policies
CC5, CC6 and CC7, would be seriously detrimental to the amenity of this
attractive rural area and not be in the interests of good forestry.
Furthermore,
for the purposes of Para 5 of the Tree Preservation Order, the Borough Council
is satisfied that this refusal of consent is in the interests of good forestry.
Mr Henriques
appealed against the refusal of consent on September 4 1989 and his appeal by
written representations was dismissed on November 26 1992. The substantive
reasons for that dismissal are not a matter for consideration by this tribunal
and its procedural legality has not been, and is not being, challenged by Mr
Henriques.
Agreed
facts
In the
application for a split trial some facts not already recorded above were agreed
and they are summarised below:
1. The relevant tree preservation order was
made on November 28 1973.
2. The subject woodland was purchased by the
claimant in 1976.
3. Consent was granted for rotational
coppicing on November 22 1982.
4. Mr Henriques claimed compensation on
December 10 1992 and the claim was denied by the borough council on January 20
1993.
Evidence
Mr Measom, an
administration officer in the development services department of the borough
council, confirmed that he had signed the notice of refusal of consent dated
July 13 1989 using Mr Harman’s name and a particular identification mark to
show that it was him on behalf of Mr Harman. Part of his job was to check, sign
and have despatched all decision notices following instructions received from
planning officers, he signed some 1,500–2,000 documents per year.
It was not his
job to look at the substance of the decisions made but merely to ensure that
the finished documents correctly conveyed the decisions reached to the
recipients.
Mr Measom said
that Mr Harman was not aware of the specific documents being signed in his
name, he had given authority to him to sign in accordance with standing
instructions. Mr Measom said he mainly signed planning decisions but
occasionally signed established use certificates for which the same procedure
was followed. He regarded the notification of refusal of consent issued to Mr
Henriques on July 13 1989 as a ‘decision like the others’.
In
cross-examination a borough council internal document headed ‘Instruction to
Issue Delegated Decision Notice’ relating to the claimant’s application was put
to Mr Measom. He explained that it was the usual planning officer’s instruction
note for the use of the typing department and himself to prepare the formal
decision notice. He said that he was unaware Mr Henriques had a copy of the
tree preservation order and that it was not part of his duties to be familiar
with the detailed terms of tree preservation orders.
Submissions
by claimant
In opening Mr
Henriques submitted that the purpose in 1973 for making the tree preservation
order was to prevent his 6.33 acres and adjacent woodland from being subdivided
and sold as ‘leisure plots’ by a predecessor in title to the detriment of the
appearance of the locality. He described it as a ‘political weapon’ rather than
being founded upon the need for preservation or protection. He said his
application in March 1989 to fell the previously coppiced trees was dealt with
by the borough council under delegated powers by a principal and an area
planning officer without formal report to the relevant committee.
Mr Henriques
submitted that there were four reasons why a certificate in accordance with the
tree preservation order was not issued by virtue of the refusal of consent
notice dated July 13 1989. First, the last and material sentence of the notice
was inappropriate to the requirements to certify in article 5 of the tree
preservation order. Second, the notice was not signed by the officer who
considered the application. Third, the document was not in fact signed by Mr
Harman but by a Mr Measom, an administrative officer in the Planning
Department. Fourth, the issue of good forestry was not investigated, and had it
been, it would be found to be without foundation and substance.
He contended
that the borough council in their actions had not recognised the difference in
meaning and function between to decide, making a decision and to certify. He
referred to para 36 in the Third Schedule to the tree preservation order where
he urged a clear distinction is drawn between deciding to refuse consent, the
decision, and the giving of any certificate or direction; appeals in respect of
all three are stated to be to the minister, now the Secretary of State for the
Environment.
He submitted
that the giving of a certificate, certifying, was a separate issue and not part
of the refusal of consent. By its nature a certificate changes nothing because
it establishes facts already existing. As a certificate is evidence of facts,
for example a marriage certificate, before a certificate is issued the facts
should be carefully investigated. Only an individual can issue a certificate or
an individual on behalf of the certifying body.
Mr Henriques
submitted that the notification of refusal of consent by the borough council
dated July 13 1989 was a pure refusal, a decision and not a certificate. He
accepted both could be in the same document but each has to be clear and
distinct; the document as issued has the alleged certificate under the heading
‘Grounds of Refusal’. He claimed that on any view the notification issued was a
‘sloppy’ document for the above reasons as well as using the word ‘Paragraph’
for the proper word article, in respect of which he takes no point.
He said that
the dictionary definition of a certificate was a document in which fact is
formally certified and attested, it has two parts, the facts and the
attestation. In the instant notice there is reference to the facts but no
formal attestation or affirmation of truth; whether ‘the Borough Council is satisfied’
is part of the facts but the notice does not go on to so certify. The words
certify and decide are not totally interchangeable in the tree preservation
order, including the schedules.
Mr Henriques
contended that a certificate must be signed by a person who investigates the
facts and knows what he is certifying. Mr Harman was not aware of the case and
therefore it was not open to him to issue any certificate. He said Mr Harman
was not the proper officer to sign on behalf of the council because the list of
‘proper officers’ published by the council in relation to the delegation of its
functions identified the director of legal services for the purposes of section
234(1) and (2) of the Local Government Act 1972 (the 1972 Act). It is accepted
that Mr Measom did not investigate properly, or at all, therefore the alleged
certificate is so perverse as to be unlawful. Mr Henriques did not dispute that
by section 101 of the 1972 Act, councils and committees can appoint individuals
to take decisions but he submitted that an individual cannot in turn
subdelegate. Thus Mr Measom could not legally issue the certificate himself. Mr
Henriques highlighted authorised and published delegation to the director of
development services, Mr Harman, in relation to applications for consent to
fell trees covered by tree preservation orders, but contended that the
delegation was excluded in respect of refusals to the effect that Mr Harman had
no authority to issue a notice of refusal. He also said that any certificate
must be issued at the same time as the refusal of consent; any omission to
investigate by Mr Harman cannot be rectified by a certificate issued
subsequently.
Mr Henriques
then referred to Bell v Canterbury City Council [1988] RVR 96,
for the purpose of supporting a contention that as clear felling was not a
forestry operation, good or bad forestry was not an issue relevant to his
application of March 1989 to the borough council.
Submissions
for the compensating authority
In response Mr
Edward McKiernan said the onus was upon Mr Henriques to show that the borough
council had not behaved properly. He submitted that the claimant relies upon
the word certify in article 5 of the tree preservation order but produces no
authority for the requirement of any ‘deed-like’ document. It has been held
since Roberts v Watkins (1863) 14 CBNS 592, not disputed by Mr
Henriques, that certification need not be in writing; something can be
certified without the issue of a certificate. The word certify is not used as a
term of art in article 5 and it should be given an ordinary meaning, in the
context of a tree preservation order it refers to informing the applicant.
Subsequent to
the making of a tree preservation order the owner of land has a right to seek
approval for a range of activities on his land, the claimant followed the
appropriate procedures which were dealt with by the borough council in a timely
manner. If certify is not a term of art, the mere sending of a letter is both
enough and plenty, if in law it can be performed verbally. The claimant cannot
expect more from the borough council as the document is clear on its face,
refers to the right land and sets out why the decision was made. It is both
sufficient for his needs and also exempts the borough council from the payment
of compensation.
Mr McKiernan
said that Mr Henriques had wrongly interpreted section 234 of the 1972 Act,
which relates to documents under seal, and that he had
authority officers. Delegation to Mr Measom of the administrative work is
necessary because it is neither possible nor economic for qualified planning
officers to undertake both the professional and administrative work. He
submitted that the signing of a letter or refusal of consent notice by Mr
Measom is good for all purposes in the absence of fraud as he is properly
employed and requested to deal with matters in his department. It is not part
of Mr Measom’s duties to investigate the substance of applications or visit
sites.
Mr McKiernan
emphasised that Mr Henriques claims that he has not been given a certificate
but he took no action upon it in 1989, he has declined to give evidence before
this tribunal, he appealed unsuccessfully to the Secretary of State and now
seeks to use this tribunal as a mechanism or route to compensation. He
submitted that the claimant’s case was entirely devoid of merit, indeed a ‘try
on’ based upon unsupported assertions, contentions and inexpert interpretation
of the 1972 Act. If there was any validity in the points raised they would have
come to light, via expert planning counsel, years ago.
In closing Mr
Henriques said he accepted that a person can certify orally and that the word
certification does not appear in the tree preservation order. He submitted that
section 234 of the 1972 Act was not specifically to do with documents under
seal but also with ordinary documents and the authority of officers. He said
the refusal of consent document dated July 13 1989 did not purport to be a
certificate because it neither certifies nor attests. The issue of a
certificate is an important matter to be treated as such by the borough council;
a sentence on to the ‘grounds of refusal’, indicates not much weight being
attached to the matter and the difference in meaning between certify, decide
and find is not respected.
He urged that
the certificate was not issued correctly and that no one has been brought
before the tribunal who has authority to issue a certificate. Mr Measom had no
such authority and Mr Harman could not issue the document under his name stamp
because the published delegation arrangements in the members handbook, had to
be construed literally and not liberally.
Finally, he
submitted that ‘good forestry reasons’ is a way for the borough council to
avoid paying compensation, but as Bell says clear felling is not a
forestry operation, the reason used in the instant refusal is not therefore
available to the borough council in response to any application to clear fell.
The borough council must act within the law and he therefore sought a finding
that no legal certificate had been issued.
Decision
The words of
article 5 of the tree preservation order are clear in that where an authority
are minded to refuse consent in respect of the activities which the order
controls they may certify that they are refusing consent in the interests of
good forestry. Whether the assertion certified by the authority was preceded by
investigation and is well founded is not a matter which this tribunal has
jurisdiction to inquire into, it is for the
Environment. Mr Henriques made such an appeal and it was dismissed. Neither
article 5 nor any other part of the tree preservation order prescribes the
manner in which the act of certifying by the authority is to be undertaken and
communicated to the applicant for the required consent. In my judgment, it is
sufficient for article 5(a) if the authority identify or specify ‘the interests
of good forestry’ among their reasons or grounds of refusal and clearly so
informs the applicant at the same time as the substantive decision to refuse consent
is notified. I see no duty upon the authority, deriving from the tree
preservation order, to undertaken investigations beyond the normal
considerations adopted relative to town planning applications generally and no
entitlement in the applicant to receive certification in any particular format,
such as under seal. In the instant reference the borough council chose to
exercise their option and by distinct words separate from their omnibus grounds
for refusal clearly stated by explicit reference to the relevant part of the
tree preservation order that the ‘refusal of consent is in the interests of
good forestry’. That is a view the council were entitled to take although the
reasons for it were not before this tribunal. The fact that a similar course appears
not to have been taken in Bell, in which it was stated that the grubbing out of
trees did not constitute forestry operations, does not to my mind prevent the
borough council from exercising their option under article 5(a) and, if upheld
on any appeal, avoiding the payment of compensation under article 9 of the
order.
In terms of
the authentication of the refusal of consent dated July 13 1989 I am
unconvinced by the submissions of Mr Henriques that any part of it is not in
proper form and beyond the authority of either Mr Harman or Mr Measom. Section
234 of the 1972 Act is headed authentication of documents, provides for
signature by the proper officer and, ‘the word ‘signature’ includes a facsimile
of the signature by whatever process reproduced’. The mode of signing is
therefore very wide indeed. Furthermore, I am satisfied that by delegation Mr
Harman was the ‘proper officer’ for the purpose of the refusal of consent. The
members handbook, incorporating standing orders relating to the governance of the
borough council, delegates to him, as director of development services,
extensive authority to make decisions on behalf of the council under the Town
and Country Planning Acts subject to certain listed exceptions. Applications
for consent to fell trees covered by tree preservation orders and other
operations related to trees are not excepted; in this particular there may have
been a misunderstanding by Mr Henriques.
For the above
reasons I conclude that a certificate pursuant to article 5 of the tree preservation
order was legally and properly issued by the borough council and that is the
determination in the reference.
This decision
determines the substantive issues raised between the parties, and the
tribunal’s award is final. The parties are invited to make such submissions as
they are advised as to the costs of the hearing, and a letter accompanies this
decision as to the procedure for submissions in writing. The tribunal will, in
due course, incorporate an order as to cost in
decision has been thus completed that is to say from the date of the addendum.
Addendum
as to costs
Submissions in
writing as to costs were invited and have been received from the parties. These
have been considered and they disclose no reason why costs should not in
principle follow the event. It is therefore ordered that the claimant pay to
the compensating authority the sum of £1,300 (one thousand, three hundred
pounds) towards their costs.
The
certificate was properly and legally issued.
