Town and Country Planning Act 1971 — Tree preservation order — Grant of injunction in support of order — Jurisdiction to grant such an order — Kent County Council v Batchelor and Stoke-on-Trent City Council v B&Q (Retail) Ltd — Section 22 of County Courts Act 1984 — County court judge had the necessary jurisdiction but failed to direct himself as to the principles which should guide the exercise of his discretion — Grant of injunction not justified in present case
leading up to this appeal began when the appellant cut the branches of a yew
tree in his garden when he considered that the tree was in a dangerous
condition — The planning authority made a tree preservation order covering some
15 trees in the garden — There followed an unfortunate history of differences,
of delay on the part of the authority in replying to applications and notices
by the appellant, ending with proceedings in the county court — The judge
accepted undertakings from the appellant and his wife but granted an
interlocutory injunction against the person engaged to carry out the cutting
operations — Subsequently the appellant applied to be released from the
undertakings and to have the injunction discharged — He claimed that the court
had no jurisdiction to grant the injunction — The judge held that he had jurisdiction
under section 22 of the County Courts Act 1984 — He refused to release the
appellant and his wife from the undertakings and continued the injunction until
trial — Hence the present appeal
appellant was appearing in person at the appeal, and it seemed to the court
that the question of jurisdiction was of some importance, arrangements were
made for an amicus curiae to attend — Section 22 of the County Courts Act 1984
clearly gave the county court the same jurisdiction as the High Court ‘to grant
an injunction or declaration in respect of, or relating to, any land, or the
possession, occupation, use or enjoyment of any land’ — It appeared, however,
that there was no reported case in which the jurisdiction of the High Court to
grant an injunction at the behest of a local authority in support of a tree
preservation order had been directly in issue — The nearest case was Kent v Batchelor in
which, in the second proceedings, Talbot J felt bound (in the light of the
earlier proceedings) to hold that there was such a jurisdiction — Lloyd LJ in
the present case held that Talbot J had been right and that any remaining doubt
had been removed by the approval given to Talbot J’s decision by Lord Templeman
in his speech in Stoke-on-Trent City Council v B&Q (Retail) Ltd —
Lloyd LJ also accepted that the county court had a similar jurisdiction in a
tree preservation order case
difficult question, so far as the present case was concerned, was whether the
judge had exercised this undoubted jurisdiction on the correct principles — In
fact the judge had given himself no directions as to the principles on which he
should exercise his jurisdiction — He had not referred to the cases in which
guidance had been given and it thus fell to the Court of Appeal to exercise the
discretion themselves — The cases had laid down the following guidance, set out
in City of London Corporation v
Bovis Construction Ltd: (1) the jurisdiction, where
Parliament has prescribed a maximum penalty in the criminal law, must be
exercised sparingly and with great caution; (2) there must be something more
than a mere infringement of the criminal law, though obviously a deliberate and
flagrant flouting would suffice; (3) an important ground is the inference that
the offender will be likely to continue his objectionable activities unless he
is restrained by injunction
present case there was no question of a deliberate or flagrant flouting of the
law by the appellant, nor was there any reason to infer that he would commit
further breaches of the tree preservation order — There was a suggestion that
if the appellant failed to comply with the tree preservation order the harm
done would be irreparable — In a sense this was true — A tree once felled
cannot be restored, it can only be replaced by another tree — One must,
however, look also at the comparative gravity of the harm that would be done —
The facts in the present case fell far short of the gravity and persistence of
the conduct of the farmer in the case of Kent County Council v Batchelor —
Appeal allowed
The following
cases are referred to in this report.
Attorney-General
v Chaudry [1971] 1 WLR 1614; [1971] 3 All ER
938; (1971) 70 LGR 22, CA
Barking
& Dagenham London Borough Council v Home
Charm Retail Ltd [1984] Ch 1; [1983] 3 WLR 78; [1983] 2 All ER 787; (1983)
82 LGR 10, CA
City of
London Corporation v Bovis Construction Ltd (1988)
86 LGR 660
Gouriet v Union of Post Office Workers [1978] AC 435; [1977] 3 WLR
300; [1977] 3 All ER 70, HL
Kent
County Council v Batchelor (1976) 33
P&CR 185; 75 LGR 151; 242 EG 287, [1977] 1 EGLR 31, CA
Kent
County Council v Batchelor (No 2) [1979] 1
WLR 213; [1978] 3 All ER 980; (1977) 38 P&CR 185; 76 LGR 714; [1978] JPL
179
Runnymede
Borough Council v Ball [1986] 1 WLR 353;
[1986] 1 All ER 629; (1986) 84 LGR 481, CA
Smith v Oliver [1989] 2 PLR 1
Stoke-on-Trent
City Council v B&Q (Retail) Ltd [1984]
AC 754; [1984] 2 WLR 929; [1984] 2 All ER 332, HL
This was an
appeal by the first defendant, Sabz Ali Khan, from interlocutory orders made by
Judge Tom Crowther QC, at Newport (Gwent) County Court, in regard to matters
concerning a tree preservation order made by Newport Borough Council in respect
of trees on the appellant’s land at 2 Oakfield Road, Newport, Gwent. The second
and third defendants were Mrs Khan and Mr R T Roderick.
The appellant,
Sabz Ali Khan, appeared in person; Keith Bush (instructed by the solicitor,
Newport Borough Council) represented the respondent council; Guy Sankey
appeared as amicus curiae.
Giving
judgment, LLOYD LJ said: In this case we have been concerned with
methods of enforcing a tree preservation order. In November 1988 the first
defendant, Mr Sabz Ali Khan, purchased a property at 2 Oakfield Road, Newport,
Gwent. There are a number of trees of different species on the property which are
said to add greatly to the amenity of the area. There was no tree preservation
order in force when Mr Khan bought the property, but the house is situated in a
conservation area. Immediately opposite the house stands the new crown court,
and the municipal offices are also to be found in the neighbourhood.
Soon after
purchasing the property Mr Khan decided to cut the branches of a yew tree
standing in the front garden which he regarded as dangerous. There was a
complaint. Mr Hasan, the senior development control officer employed by Newport
Borough Council, visited the property on April 18 1989. He found workmen
engaged in cutting branches. He told them to stop. He made a tree preservation
order the same day with the authority of the chairman of the planning
committee. It covered 15 trees in the garden to the front and side of the
house. The yew tree was T15. By clause 13 of the tree preservation order, it
was provided that it should take immediate effect as a provisional order under
section 61 of the Town and Country Planning Act 1971 [section 201 of the Town
and
the order was still in force the following September, when the events occurred
out of which these proceedings arise.
On April 19
the tree preservation order was served on Mr and Mrs Khan. On April 20 Mr Khan
applied to the council for leave to fell two of the 15 trees which he regarded
as dangerous. In addition to the yew, there was a redwood, T6. That application
did not come before the council apparently until August 11, when consideration
of the application was deferred pending a site inspection. On September 5 Mr
Khan, having heard nothing from the council, wrote, saying that he intended to
fell the yew tree on September 10, thus giving the council a further five days’
notice. He employed a contractor for that purpose. It cost him £400.
Meanwhile, on
September 8 the council at long last refused consent to Mr Khan’s application
and indeed resolved to prosecute Mr Khan for the work which he had already
carried out without authority, in breach of the tree preservation order. That
must be a reference to a mountain ash, T11, which Mr Khan says was little more
than a bush.
In the very
early morning of Sunday September 10, Councillor Graham telephoned Mr Tapp, the
chief executive, to tell him that men were at work cutting down the yew tree.
Mr Tapp arrived on the scene at 8.10 am. Mr Khan was not there, but Mr Tapp
introduced himself to the third defendant, Mr R T Roderick, who was the man in
charge of the operation. He told the third defendant to stop. But the third
defendant refused, whereupon the plaintiffs obtained an interim injunction from
Judge Morgan the same day. That injunction was served on the defendants at 12
noon. But by that time the yew tree was no more than a stump.
On Monday
September 11 the case came before His Honour Judge Crowther. The defendant gave
an interim undertaking to the court, pending a further hearing on September 14.
On September 12 the plaintiffs served particulars of claim, in which they say
they are entitled to damages in the sum of £5,000 for loss of or damage to the
amenity of the area. It is now conceded that such a claim for damages cannot
possibly be sustained. On September 14 Judge Crowther accepted a further
undertaking from Mr and Mrs Khan and granted an interlocutory injunction
against the third defendant.
On October 13
Mr Khan gave notice of an application to be released from his undertaking and
to discharge the injunction. His grounds were, first, that the statement of
claim disclosed no cause of action known to the law and, second, that the
county court had no jurisdiction to grant an injunction, since the claim for an
injunction was not ancillary to a viable claim for damages or other relief
within the jurisdiction of the county court: see section 38 of the County
Courts Act 1984.
The hearing of
that application came before Judge Crowther on November 22. He held that he had
jurisdiction to grant an injunction, on the ground that the injunction was in
respect of or relating to any land or the use or enjoyment of any land within
the meaning of section 22 of the County Courts Act 1984. Accordingly, he
refused to release Mr and Mrs Khan from their undertaking and continued the
injunction until trial. There is now an appeal to this court.
When the case
came on for hearing before us, Mr Khan appeared in person to support his
appeal. It seemed to us that the question of the jurisdiction of the county
court to grant an injunction in support of a tree preservation order might be
one of some importance, as also might be the scope of the local authority’s
powers under section 222 of the Local Government Act 1972 and the proper
exercise of the judge’s discretion in a case such as the present. So we adjourned
the hearing in order that we might seek the help of an amicus. At the
resumed hearing Mr Guy Sankey has appeared in that capacity and has given us
every possible assistance.
Section 22(1)
of the County Courts Act 1984 provides:
Subject to
the provisions of this section, a county court shall have the same jurisdiction
as the High Court to grant an injunction or declaration in respect of, or
relating to, any land, or the possession, occupation, use or enjoyment of any
land.
I need not
refer to subsections (2) or (3). Section 222 of the Local Government Act 1972
provides:
Where a local
authority consider it expedient for the promotion or protection of the
interests of the inhabitants of their area–
(a) they may prosecute or defend or appear in any
legal proceedings and, in the case of civil proceedings, may institute them in
their own name.
I need not read
the rest of that section.
Logically, the
first question for our consideration is whether the High Court has jurisdiction
to grant an injunction in a case such as this, seeing that the breach of a tree
preservation order is a criminal offence for which Parliament has provided
specific penalties. For if the High Court has no such jurisdiction, neither has
the county court.
It appears
that there is no reported case in which the jurisdiction of the High Court to
grant an injunction at the behest of the local authority in support of a tree
preservation order has been directly in issue. The nearest case is Kent
County Council v Batchelor (1976) 75 LGR 151. In that case, Cusack J
or Chapman J — it is not clear from the reports which — granted the plaintiffs
an injunction to restrain a farmer from cutting down trees in breach of a tree
preservation order. There was then an application to commit the farmer for contempt
on the ground that he had disobeyed the injunction. Caulfield J committed the
farmer to prison for a month. His appeal was allowed by the Court of Appeal,
but not, be it noted, on the ground that the injunction should never have been
granted, but on the ground that there was insufficient evidence to establish a
breach of the injunction. There was then a further application to commit. This
time it was argued that there was no jurisdiction to grant the injunction. But
Talbot J held, in Kent County Council v Batchelor (No 2) [1979] 1
WLR 213, that in view of the course that the previous proceedings had taken in
the Court of Appeal, where it was assumed on all sides that there is
jurisdiction to grant an injunction in a tree preservation order case, he was
bound so to hold in the case before him.
In my judgment
Talbot J was right so to hold. If there remained any doubt, it was dispelled by
Lord Templeman’s speech in Stoke-on-Trent City Council v B&Q
(Retail) Ltd [1984] AC 754, where he referred at p 774 to the decision of
Talbot J with evident approval as a typical case in which the local authority
are in the best possible position to judge whether it is expedient, in the
interests of a particular locality, to apply for an injunction under section
222 of the Local Government Act.
So I would
hold that the High Court does indeed have jurisdiction to grant an injunction
at the behest of a local authority in support of a tree preservation order in
an appropriate case. I will return to Lord Templeman’s speech later, when I
come to consider the principles which ought to govern the exercise of the
jurisdiction.
The next
question is whether, if the High Court has jurisdiction to grant an injunction
in a tree preservation order case, as I have just held, the county court has a
similar jurisdiction by virtue of section 22 of the County Courts Act 1984.
This depends on whether such an injunction would, if granted, be an injunction
in respect of or relating to any land or the use of any land, having a rateable
value of less than £1,000. Once again there appears to be no reported case on
this point, in other words, no case in which section 22 has been applied in the
case of a tree preservation order. But the explanation for that dearth of
authority may be, as Mr Bush pointed out for the council, that the section has
been in force only since 1977.
It seems to me
that in principle section 22 ought to apply to such a case. A tree preservation
order comes within the ordinary meaning of the words of the section. Such an
order almost always identifies the trees which are subject to the order by
reference to the land on which the trees are situated. Thus, in the present
case the trees are identified by reference to land at 2 Oakfield Road. This is
true even when the order applies only to a single tree. The tree preservation
order thus clearly affects the land on which the tree or trees are situated. As
a matter of ordinary language it is thus an order in respect of or relating to
that land.
This is borne
out by section 60(1A) of the Town and Country Planning Act 1971, which refers
to a tree preservation order being made in relation to land in the three cases
covered by subparas (b) to (d). It is also borne out by section
60(8), which refers to a tree preservation order being made in respect of land.
It may be no more than a coincidence that the same language is used in section
22 of the County Courts Act as is used in section 60 of the Town and Country
Planning Act. But even if so, it at least shows that it is a perfectly ordinary
and natural use of words in this context. If I am right that a tree
preservation order is an order in respect of or relating to land, it must
follow that an injunction to enforce a tree preservation order is also an
injunction in respect of or relating to land within the meaning of section 22.
The matter can
be tested in this way. Suppose my neighbour threatens to come on my land and
cut down my tree. There could be no doubt that the court would have
jurisdiction to grant an injunction in such a case. Otherwise, one would be
depriving section
case, the application for an injunction would be an application in respect of
land, how could the case differ if it is not a neighbour but the owner himself
who threatens to cut down his own tree and is then sought to be restrained by
the local authority? So I would hold,
contrary to Mr Khan’s argument and without much hesitation, that Judge Crowther
did indeed have jurisdiction to make the order under section 22 of the Act.
But that is
not the end of the case. There then comes the more difficult question whether
the judge exercised the jurisdiction on the right principles. A glance at the
judgment shows that the judge did not direct himself at all as to the proper
principles which should have guided the exercise of his discretion. He regarded
it as sufficient to hold that he had jurisdiction to make the order. Nowhere
does he refer to the decision of the House of Lords in Stoke-on-Trent City
Council v B&Q (Retail) Ltd. Nowhere does he refer to the cases
which have followed that decision, namely, among others, Runnymede Borough
Council v Ball [1986] 1 WLR 353 and City of London Corporation v
Bovis Construction Ltd (1988) 86 LGR 660.
This may not
have been altogether the judge’s fault, since as Mr Bush pointed out, the judge
was never asked by Mr Khan to exercise his discretion in his, Mr Khan’s,
favour. But equally it may not have been Mr Khan’s fault, since until the judge
granted leave to amend the statement of claim in the course of the hearing on
November 22 Mr Khan had a complete, if technical, answer on the pleading as it
stood. But wherever the fault may have lain, the fact remains, as indeed Mr
Bush concedes and avers, that the judge never exercised any discretion in this
case at all. It follows that we have no alternative but to exercise the
discretion ourselves. Mr Bush submits that we do not have sufficient material
to exercise our discretion. I do not agree. The existing material, including as
it does three affidavits sworn on behalf of the council as to the council’s
reasons for applying for an injunction, is amply sufficient to enable us to
form a fair view of the matter.
How then
should we exercise our discretion? The
theme which underlies all the speeches in the Stoke-on-Trent case is
that the jurisdiction to grant an injunction to prevent an infringement of the
criminal law, where Parliament has itself enacted, as here, a maximum pecuniary
penalty, must be exercised sparingly and with great caution. The reasons were
explained by Lord Wilberforce in Gouriet v Union of Post Officer
Workers [1978] AC 435, in a passage immediately following the passage
quoted by Lord Templeman from Lord Wilberforce’s speech in the Stoke-on-Trent
case at p 776. Something more than an infringement of the criminal law is
required. But what more? A deliberate
and flagrant flouting of the law will clearly suffice. But on no view could Mr
Khan be said to have flouted the law in the present case. On the contrary, he had
been seeking permission to fell the two trees, which he regarded as dangerous,
since April 20. He had received advice from an independent tree surgeon that
the yew and the redwood both contained much decaying and dead wood and were an
obvious danger to passers-by. He had been told that he would hear from the
council within six weeks of making his application on April 20. It was only
when he did not hear for nearly six months that he wrote his letter on
September 5, saying that unless he heard within five days he would have no
alternative but to cut the yew for the sake of public safety. This conduct
seems to me to be the very reverse of a deliberate flouting of the law.
But the
subsequent cases show that the flouting of the law is not an exhaustive test.
Indeed the use of the phrase itself, though it has the support of much very
high authority, has been criticised by Sir Roger Ormrod in the Runnymede case.
What else, then, was there here? The
ground on which the case was put forward by the plaintiffs in all three
affidavits sworn on the council’s behalf is that Mr Khan was likely to commit
further breaches of the tree preservation order in the future, and that nothing
less than an injunction would stop him: see the City of London Corporation case
per Bingham LJ at p 682.
But I see no
reason to infer that Mr Khan will commit further breaches of the tree
preservation order. Apart from the mountain ash T11, as to which the evidence
was inconclusive, there is no evidence that Mr Khan ever intended to cut down
any trees other than the yew and the redwood. The only other tree of which we
have heard tell is a pine tree, T12. It is true that that tree may have to come
down, as the council accept; it is now leaning badly. But that is all. Mr Khan
tells us that he does not regard any of the other trees covered by the tree
preservation order as dangerous. Contrast the failure of the defendants to
answer a similar question asked by Lord Diplock at the commencement of the
hearing of the Stoke-on-Trent case in the House of Lords.
If Mr Khan is
right that the yew and the redwood are or were dangerous, he would have a
defence to criminal proceedings under section 60(6) of the 1971 Act. He would
be guilty of no infringement: see Smith v Oliver [1989] 2 PLR 1.
If, on the other hand, he is wrong, then, on the council’s own case, the value
of the yew tree is £5,000 and therefore the fine in summary proceedings in
relation to that tree alone could be as high as £10,000. So this is obviously
not a case where the financial penalty enacted by Parliament is likely to prove
inadequate. So the plaintiffs have not, on the facts of this case, made good
the grounds which they put forward in their evidence in support of their claim
for an injunction.
Finally, there
is the argument which Mr Bush, on behalf of the council, put at the forefront
of his case, although it is not reflected in the evidence, that the harm done
by Mr Khan if he fails to comply with the order would be irreparable. In one
sense this is of course true. A tree, once felled, cannot be restored. It can
only be replaced by another tree. But irreparability on its own does not
necessarily justify an injunction. One must also have regard to the gravity of
the harm likely to be done and the scale of the operations as a whole: see per
Ackner LJ in the Stoke-on-Trent case in the Court of Appeal [1984]
Ch 1. In Attorney-General v Chaudry [1971] 1 WLR 1614, the
granting of an injunction was upheld by the Court of Appeal because the risk of
the hotel in that case catching fire was serious and any consequential loss of
life resulting from the fire would have been very grave indeed. The present
case is not in that class. Nor does it have the features to which Purchas LJ
drew attention in the Runnymede case. I am not saying that there may not
be a case where, exceptionally, an injunction may not be justified in support
of a tree preservation order. Kent County Council v Batchelor was
just such a case. But the facts of the present case fall far short of the
gravity and persistence of the conduct of the farmer in that case. Accordingly,
I would reject Mr Bush’s argument based on the irreversible nature of a
tree-cutting operation.
In the end,
the question for us is quite simple. Is there anything sufficiently exceptional
in the facts of the present case to justify resort to the civil law in support
of the criminal law? I have no doubt
that if the judge had had his attention directed to the relevant authorities to
which I have referred, instead of being asked to concentrate on the question of
his jurisdiction, he would have declined to exercise his discretion in favour
of the plaintiffs in the present case. In the event, he never exercised his
discretion one way or the other, so the discretion devolves upon us. The judge
was right to hold that he had jurisdiction under section 22 of the County Courts
Act 1984 to grant an interlocutory injunction, but, on the evidence before him
and before us, an injunction is not justified.
In those
circumstances it is not necessary for me to deal with the other ground relied
upon by Mr Khan, that the action of the chief executive in applying for an
interlocutory injunction was never properly considered or authorised by the
council themselves, or any relevant committee in the light of the council’s
discretion under section 222 of the Act: see in that connection Barking
& Dagenham London Borough Council v Home Charm Retail Ltd [1984]
Ch 1. Since I am in favour of Mr Khan on the broader point I need not consider
that narrow argument.
I would allow
this appeal for the reasons I have given and discharge the injunction.
Agreeing, BELDAM
LJ said: I add my own observation only on the proper approach to the use by
a local planning authority of an injunction to enforce a tree preservation
order. It is an example of seeking the assistance of the civil courts to
forestall the commission of an offence under the criminal law. I consider that
the correct principles are those set out by Bingham LJ in the case of City
of London Corporation v Bovis Construction Ltd (1988) 86 LGR 660.
Bingham LJ at p 682, said:
The guiding
principles must, I think, be (1) that the jurisdiction is to be invoked and
exercised exceptionally and with great caution: see the authority already
cited; (2) that there must certainly be something more than mere infringement
of the criminal law before the assistance of civil proceedings can be invoked
and accorded for the protection or promotion of the interests of the
inhabitants of the area: see Stoke-on-Trent City Council v B&Q
(Retail) Ltd (supra) at pp 767 and 415, 776 and 485, and Wychavon
District Council v Midland Enterprises (Special Events) Ltd (1987)
86 LGR 83, at p 87; (3) that the essential foundation for the exercise of the
court’s discretion to grant an injunction is not that the offender is
deliberately and flagrantly flouting the
will continue unless and until effectively restrained by the law and that
nothing short of an injunction will be effective to restrain them.
In the case of
a local planning authority who is seeking the aid of a civil court to enforce a
tree preservation order, it is important to bear in mind the nature of the
sanctions and remedies which are available to the local planning authority
under the Town and Country Planning Act 1971 before deciding whether it is
reasonable in all the circumstances that they should seek the aid of the civil
courts.
Section 102(1)
of the Act as substituted by section 10(3) of the Town and Country Amenities
Act 1974 provides that the offence of contravening the tree preservation order
by cutting down or wilfully destroying a tree or damaging it is triable either
way, that is to say, summarily or on indictment, so that in serious cases the
offender may be committed for trial to the crown court and be liable to an
unlimited fine. In the case of a summary conviction he is liable to a very
substantial fine or twice the sum which appears to the court to be the value of
the tree. In addition to the penalties available, if a person in fact damages
or cuts down a tree, even in those cases in which he would be justified in
doing so because the tree was, for example, dangerous, he may still be liable
to an order that he should replace the tree under section 62 of the Act, and
section 103 provides the local planning authority with extensive powers for
enforcing the duty to replace such trees.
The local
planning authority have available more varied and potent sanctions and remedies
than, for example, are available to a local authority in the enforcement of
laws prohibiting Sunday trading, and thus, before considering whether it is
appropriate in a particular case to apply for a civil injunction, it seems to
me that it would be essential for the local planning authority at least to
consider whether their existing remedies offered them an adequate solution to
the difficulties which they faced.
For the
reasons which Lloyd LJ has given, in the present case the evidence
before the learned judge did not, in my view, justify the granting of a civil
injunction and I agree that this appeal should be allowed.
The appeal
was allowed with costs in the Court of Appeal and below; application for leave
to appeal to the House of Lords was refused.
For
further cases on this subject see p 175
