Council making tree preservation order to take immediate effect – Council failing to serve copy order on owner of land affected – Whether landowner substantially prejudiced by non-observance of notification regulations – Whether prejudice attributable to landowner’s failure to appreciate likelihood of such order
The applicant (K) was the owner of a company, B Ltd, which owned a complex of buildings in Eccleston standing on an area of land known as Grove Hill. The buildings accommodated a variety of antique and bric-a-brac traders collectively operating under the name Bygone Times. Also standing on Grove Hill were the premises of Bygone Times Ltd, a company with which K had no connection of any kind. By letter dated November 18 1996 the council, who had heard unofficially of a plan to provide an extension car park on land to the rear of the complex, purported to advise “Bygone Times” that such a proposal would meet with planning objections. On December 23 1996 K purchased a plot of land to the south of Grove Hill (the new plot) with the immediate aim of demolishing some dilapidated air raid shelters, which were unsightly and a haven for undesirable activities, and with the longer term objective of providing the complex with additional car parking facilities. On January 31 1997 the council issued a tree preservation order directed at the new plot, the order being made with a direction under section 201 of the Town and Country Planning Act 1990, that it should take effect immediately. Being mistaken as to the ownership of the new plot, the council served the requisite copy of the order on Bygone Times Ltd. Unaware of the issue of the order, K engaged a contractor to demolish the shelters. On February 9 1997 the contractor began to remove a number of trees growing above and between the shelters, but the work was stopped by order of the council who subsequently informed K that he would be prosecuted. In response to proceedings by K to have the order quashed, the council conceded that they had failed to observe the notification procedures laid down by regulation 5 of the Town and Country (Tree Preservation Order) Regulations 1969, but contended, relying on section 288(5) of the 1990 Act, that K had not been substantially prejudiced by their mistake.
Held The order was quashed
1. K had undoubtedly suffered prejudice given the high possibility (if the order was valid) of being convicted of the relevant offence.
2. The council could not contend that the true cause of the prejudice was a failure by K to appreciate the likelihood of a tree preservation order being made; in particular the council could not rely on their letter of November 18 1996 as that was solely concerned with the apprehended use for car parking: see Maidstone Borough Council v Mortimer [1980] 3 All ER 952 distinguished.
David Manley (instructed by Dibb Lupton Alsop, of Manchester) appeared for the applicant; Martin Carter (instructed by the solicitor to Chorley Borough Council) appeared for the respondents.
