Council revoking consent in relation to tree preservation order – Secretary of State for the Environment Transport and the Regions confirming revocation – Applicant appealing against Secretary of State’s confirmation – Whether Secretary of State applied correct legal test – Whether Secretary of State failed to have regard to material considerations – Application dismissed
The applicant was the owner of Bicknor Wood, which extended to about 8.5 acres and lay near Maidstone. It was made the subject of a Tree Preservation Order (TPO) under the Town and Country Planning Act 1971. The TPO was confirmed in 1982 and called TPO 37 of 1981. However, in 1982 consent was granted in respect of TPO 37 for the felling and arguably the grubbing out of coppice trees. In 1984 Maidstone Borough Council were concerned that the woodland subject to the consent was becoming out of character with the rest of the woods, which had become mature parkland, both because of the removal of seedlings and saplings and because the area was making no contribution to wildlife conservation. Accordingly, in August 1995 the council made an order revoking the consent in relation to TPO 37. The applicant objected. By section 45(2) of the Town and County Planning Act 1971 “an order shall not take effect unless it is confirmed by the Secretary of State and the Secretary of State may confirm any such order submitted to him either without modification or as he considers expedient”.
The Secretary of State issued a decision letter dated July 17 1997, which concluded that it was “expedient” to confirm the modification order made by the council. The applicant challenged the confirmation of the order under section 288 of the Town and Country Planning Order 1990. It was contended that the Secretary of State had failed to apply the correct legal test in deciding to confirm the modification order, and that he had failed to have regard to material considerations, namely the issue of the construction of the TPO and the issue of no material differences between development plan polices.
Held The application was dismissed.
1. The words in section 45(2) of the 1971 Act “as he considers expedient” qualified only the words “either without modification” and not the earlier words “may confirm”. The Secretary of State therefore had complete discretion whether or not to confirm the order, provided that he always complied with the law and did not misdirect himself. Accordingly, he had been entitled to use the word “expedient”. He had had ample justification for confirming the revocation order and therefore it could not be concluded that he had exercised his discretion unlawfully or improperly: de Rothschild and Eranda Herds Ltd v Secretary of State for Transport and another [1989] 1 EGLR 19 considered.
2. The Secretary of State had been entitled as a matter discretion not to resolve whether there was an alteration of development plan policies and to give the issues no weight. Accordingly he had not failed to have regard to the development plan policies and therefore he had not failed to give adequate reasons for his conclusion. On that basis it could also be concluded that the decision was not irrational.
Meyric Lewis (instructed by Colin Hayward & Co, of Ashford) appeared for the appellant; Jonathan Karas (instructed by the Treasury Solicitor) appeared for the first respondent; Adrian Taylor (instructed by the solicitor to Maidstone Borough Council) appeared for the second respondents.
