Tree preservation order — Town and Country Planning (Trees) Regulations 1999 — Objections and representations — Regulation 3 — Procedural requirements — Whether procedure breached by failure to serve copy of order alongside notice of confirmation — Whether reasons for making order adequate — Whether breach of Article 1 of First Protocol to European Convention on Human Rights
In April 2001, the claimant applied to the respondent council for planning permission to develop land he owned in Worcestershire. The planning officer recommended refusal. In June 2001, several trees on his land came down and the council made a tree preservation order (TPO) that was subsequently confirmed in September on the grounds of amenity value and interest. The claimant challenged the TPO in the High Court, but, in April 2002, the council made a second TPO, specifying the trees individually or by group; this replaced the first order. It stated, as the reason for the order, “that the trees provide special amenity value”, and that the order was made “in the interest of amenity”. The order was confirmed in June 2002 in the absence of any objection or representation. The notice of confirmation was sent to the claimant, and was addressed to the “owner and occupier” of the land. The claimant’s request to the council for consent to make representations out of time was refused, and his subsequent appeal to the Secretary of State was dismissed. On appeal, the claimant contended that the council were in breach of the procedural requirements of the Town and Country Planning (Trees) Regulations 1999 in that they had failed to serve a copy of the order as confirmed together with the schedule and map. Both a schedule and a map had accompanied the provisional order, but the only documents served on the claimant following confirmation of the order had been the notice of confirmation. The claimant contended that: (i) the notification required by regulation 6 included service of the order and since the schedule and map formed part of the order, it was necessary for them to be served with it; (ii) the council had failed to comply with a requirement in regulation 5(3) as to endorsement of the order following confirmation; (iii) they had failed to give reasons for making the order, as required by regulation 3(2)(a); (iv) the location and the number of the trees were not specified either accurately, or at all, on the map; (v) an abuse of power had taken place; and (vi) the European Convention on Human Rights (ECHR) had been breached in that the order interfered with the claimant’s right to peaceful |page:13| enjoyment of his property, contrary to Article 1 of the Protocol, and his right to respect to his home under Article 8.
Held The claim was dismissed.
1. Regulation 6 requires service of a copy of an order following confirmation only where the order has been confirmed with modifications. This is dealt with in terms in regulation 6(b). It was not necessary to serve a further copy of the order if no modifications have been made: see [19].
2. There had been no failure to comply with regulation 5. The confirmation was duly endorsed on the body of the order. The schedule was referred to in the body of the order and formed part of the order. The map was referred to, in turn, in the schedule, and also, by regulation 2(2), formed part of the order; they were not required to be endorsed separately: see [21].
3. The duty to give reasons was explicit: see regulation 3(2)(a). The reasons for the order were stated in the notice accompanying the provisional order. It was not necessary to give separate reasons in respect of each of the individual trees and the group of trees: see [24].
4. The plan contained no material inaccuracies. Enough had been said and done both to identify the trees concerned and to meet the objective of regulation 2: see [29].
5. The council were entitled to reach the conclusion they had: see [30]. The ECHR had not been breached: the statutory regime concerning TPOs represented a fair balance between the general interest of the community and the requirements of the protection of individual rights.
Begum (Runa) v Tower Hamlets London Borough Council [2003] UKHL 5; [2003] 2 AC 430; [2003] 2 WLR 388; [2003] 1 All ER 731; [2003] HLR 32, HL
Hatton v United Kingdom 36022/97 (2001) 34 EHRR 1
Holding & Barnes plc v United Kingdom 2352/02 unreported 12 March 2002
James v United Kingdom A/98 (1986) 8 EHRR 123
R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions; R (on the application of Holding & Barnes plc) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2001] 2 WLR 1389; [2001] 2 All ER 929; (2001) 3 LGR 38; (2001) 82 P&CR 40; [2001] 2 PLR 76; [2001] JPL 920, HL
R (on the application of Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions; sub nom Friends Provident Life Office v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 820 (Admin); [2002] 1 WLR 1450; [2002] JPL 958, AC
Robinson v East Riding of Yorkshire Council; sub nom R (on the application of Robinson) v Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 1796; [2003] 4 PLR 1; [2003] JPL 894, CA
Robinson v East Riding of Yorkshire Council; sub nom R (on the application of Robinson) v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 63 (Admin); [2002] 06 EG 152 (CS), QB
Sporrong Lönnroth v Sweden A/52 (1983) 5 EHRR 35 |page:14|
This was an application by the claimant, Mr Lawrence Brennon, under section 288 of the Town and Country Planning Act 1990, challenging a tree preservation order confirmed by the respondents, Bromsgrove District Council.
RICHARDS J:
[1] This is an application, under section 288 of the Town and Country Planning Act 1990, challenging a tree preservation order (TPO) confirmed by Bromsgrove District Council on 10 June 2002. The claimant alleges that the order is defective through its failure to comply with the relevant regulations in various respects and by reason of an alleged abuse of power on the part of the council. He also contends that it was made in breach of his Convention rights.
[2] The claimant owns a property at 16 Rock Hill, Bromsgrove, Worcestershire. He has been in dispute with the council for some time about the trees on his land. On 16 April 2001, he made an application for planning permission in respect of the land. The proposed development included the demolition of the existing building and the construction of six maisonettes.
[3] At the time of the application, the part of the garden fronting Rock Hill contained a considerable number of trees and bushes. In early June, some of the trees on the site came down. The exact circumstances need not concern me, but evidence given in other proceedings by Mr Steven Jones, a tree officer in the council’s planning department, was that the claimant was very angry that officers had recommended refusal of the planning application and had stated that he intended to fell all the trees on the site. A TPO was then prepared and made, as a matter of urgency. This was the Bromsgrove District Council Tree Preservation Order (No 6) 2001, made on 11 June 2001 with provisional effect, and subsequently confirmed by the council on 4 September 2001, following receipt of representations on behalf of the claimant. The reasons for making that order were given as follows:
The trees present a pleasant visual amenity on Rock Hill as a group. Although individually they would be generally insignificant, as a planted area their loss would significantly alter the visual aspect of the area. Thus the trees provide special amenity value and the [tree preservation order] is made in the interests of amenity.
[4] In the TPO, the trees protected were specified by reference to an area that encompassed a substantial part of the garden at 16 Rock Hill. The |page:15| council’s evidence is that an order specifying trees by reference to an area, rather than individually or by groups, was made because of the urgency. Government guidance issued to local planning authorities states that orders based upon an area classification should be used only in emergencies and only as a temporary measure so that trees can be properly assessed and reclassified: see paras 317 and 318 of Tree Preservation Orders, a Guide to the Law and Good Practice, March 2000.
[5] What happened next was that the claimant brought proceedings to challenge the order in the High Court (no CO/2866/2001). Before that challenge was resolved, however, the council made a second order – the Bromsgrove District Council Tree Preservation Order (No 2) 2002 – which replaced the first. This second order was made on 12 April 2002 with provisional effect. It was confirmed in the same terms on 10 June 2002: this is the order now under challenge. The challenge to the first order was withdrawn, by consent, on 16 April 2002 upon the first order being superseded by the second.
[6] The reason given for the second order was “that the trees provide special amenity value”, and the order was expressed as being made “in the interests of amenity”. In the new order, the protected trees were specified individually or by group. The details were given in schedule 1 and a map annexed to the order. Two ash trees were individually specified: they were referred to as T1 and T2 in the schedule and on the map. National Grid references were given for each. The group of trees, described as “18 self-set Ash multi-stem and single-stem”, was referred to as G1 on the schedule and on the map. A National Grid reference was again given.
[7] Along with the provisional order, the claimant was given details of how to make representations; no representations were made within the time laid down. The order was therefore confirmed by the council on 10 June in the absence of any objection or representation. Notice of confirmation, dated 11 June 2002, was sent to the claimant. Notice was also sent, presumably on a precautionary basis, to “the owner and occupier” of the land. On 22 July, well over a month after the order had been confirmed, the claimant’s solicitor wrote to ask whether the council:
would consent to allow our client to make representations out of time in respect of the second TPO and to do so to an independent and impartial tribunal constituted of members unconnected with the events surrounding the first TPO who therefore come to this dispute “fresh” and without any preconceptions.
The council refused to extend time and rejected as impractical the suggestion that the decision should be taken by a differently constituted planning committee.
[8] The claimant then brought the present proceedings challenging the second order.
[9] Before I come to examine the issues in the proceedings, I should go back in time to mention certain other events. In September 2001, it was discovered that some trees covered by the first order had been cut down. In May 2002, it was discovered that further work of cutting or trimming |page:16| trees had been taking place on the site, allegedly in breach of the second order. On 24 May 2002, the council obtained an injunction, without notice from Redditch County Court, forbidding the claimant from undertaking any work on trees on land at 16 Rock Hill. On 12 July, this was replaced by an undertaking by the claimant to abide by the terms of the second order, that is to say, (no 2) of 2002, in that he would not cut down, top, lop, uproot, or wilfully damage or destroy any trees specified in the first schedule and shown on the map annexed to the order.
[10] The events of December 2001 and May 2002 have also led the council to commence criminal proceedings against the claimant for breach of the orders. Those proceedings stand adjourned, pending the outcome of the present application.
[11] The claimant’s planning application has also taken its course. Permission was refused by the council on 6 August 2001. The claimant appealed to the Secretary of State. The appeal was dismissed by an inspector in a decision dated 14 June 2002. In his decision, the inspector referred, by way of background, to the disputes over the TPOs, noting the council’s evidence that, although the second order referred to a group of 18 ash trees, further felling had reduced the number in that group to 11. The decision also recorded the claimant’s argument that the second order had not been the subject of a survey or measurement and that the two ash trees individually identified had been wrongly positioned. As to that, the inspector observed:
Nevertheless [the claimant] accepted my view that the felling that had taken place left no room for doubt as to which two trees on the site are identified in the order.
[12] The detriment that would arise from the loss of some of the trees protected by the order forms part, although not a major part, of the inspector’s reasons for concluding that the development would cause unacceptable visual harm and that planning permission should be refused.
[13] The other fact or matter that I should mention is that the claimant has filed evidence about the condition of various trees, including evidence that T1 was in danger of falling and causing damage, and that both T1 and T2 were causing damage to adjacent retaining walls. There is also evidence that T2 had been blown over in high winds in October or November 2002. The council take issue with the evidence concerning the condition of the trees. It is the council’s case that T2 fell over because of inappropriate work undertaken in breach of the TPO, in that the earth bank upon which the tree was growing had been excavated and damage caused to the roots. I am not called upon to resolve these factual issues, which, it is accepted, would be an inappropriate exercise in a statutory challenge of this kind. So much for the factual background to the present application.
[14] As to the statutory framework, section 198 of the 1990 Act provides for the making of TPOs:
.- (1) If it appears to the local planning authority that it is expedient in the interests of amenity to make provision for the preservation of trees or |page:17| woodlands in their area, they may for that purpose make an order with respect to such trees, groups of trees or woodlands as may be specified in the order.
(2) An order under subsection (1) is in this Act referred to as a “tree preservation order.”
(3) A tree preservation order may, in particular, make provision –
(a) for prohibiting (subject to any exemptions for which provision may be made by the order) cutting down, topping, lopping, uprooting, wilful damage, or wilful destruction of trees except with the consent of the local planning authority, and for enabling that authority to give their consent subject to conditions;
Section 198(3)(c) and (4) have the effect of applying, in relation to applications for consent, the machinery of the 1990 Act applicable to planning applications. So that, for example, there is a right of appeal to an inspector appointed by the Secretary of State from a decision of the council refusing consent for work prohibited by the order.
[15] Section 199(1) provides:
A tree preservation order shall not take effect until it is confirmed by the local planning authority and the local planning authority may confirm any such order either without modification or subject to such modifications as they consider expedient.
Although that subsection provides that, in the ordinary course, an order does not take effect until confirmed, section 201 deals with provisional orders:
.- (1) If it appears to a local planning authority that a tree preservation order proposed to be made by the authority should take effect immediately without previous confirmation, they may include in the order as made by them a direction that this section shall apply to the order.
(2) Notwithstanding section 199(1), an order which contains such direction –
(a) shall take effect provisionally on such date as may be specified in it; and
(b) shall continue in force by virtue of this section until
(i) the expiration of a period of six months beginning with the date on which the order was made, or
(ii) the date on which the order is confirmed, whichever first occurs.
There is provision in section 199 for the making of regulations with respect to the form of tree preservation orders and the procedure to be followed in connection with the making and confirmation of such orders. Among other matters, the power to make regulations includes a power to make provision that copies of the order, when confirmed by the authority, will be served on such persons as may be specified in the regulations: see section 199(3)(c).
[16] The relevant regulations are the Town and Country Planning (Trees) Regulations 19991. Regulation 2 provides: |page:18|
.- (1) An order shall be in the form set out in the Schedule to these Regulations, or in a form substantially to the same effect and –
(a) shall specify the trees, groups of trees or woodlands to which it relates;
(b) where the order relates to a group of trees, shall specify the number of trees in the group; and
(c) shall indicate the position of the trees, groups of trees or woodlands as the case may be, by reference to a map.
(2) An order shall contain or have annexed to it a map referred to in paragraph 1(c); and where a map is annexed to an order it shall be treated as part of the order.
(3) The map contained in, or annexed to, an order shall be prepared to a scale sufficient to give a clear indication of the position of the trees, groups of trees or woodlands to which the order relates.
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1 SI 1999/1892
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[17] Regulation 3 is concerned with the procedure after making an order. It provides:
.- (1) As soon as practicable after making an order, and, before confirming it, the authority which made it shall –
(a) serve on the persons interested in the land affected by the order
(i) a copy of the order; and
(ii) a notice containing the particulars mentioned in paragraph 2; and
(b) make a copy of the order available for public inspection in accordance with paragraph (3).
(2) The particulars mentioned in this paragraph are –
(a) the reasons for making the order,
(b) a statement that objections or other representations with respect to any trees, groups of trees or woodlands specified in the order may be made to the authority in accordance with regulation 4,
(c) the date, being at least 28 days after the date of the notice, by which any objection or representation must be received by the authority,
(d) a copy of regulation 4, and
(e) where the order contains a direction under section 201 (provisional tree preservation orders), a statement of the effect of that direction.
Regulation 4 deals with objections and representations. Regulation 5 concerns the procedure for confirmation of a tree preservation order and provides:
.- (1) The authority shall not confirm an order which they have made unless they have first considered any objections and representations duly made in respect of it and not withdrawn.
(2) An authority may confirm an order with or without modification.
(3) Where an order is confirmed it shall be endorsed to that effect, and the endorsement shall also indicate –
(a) that the order was confirmed with modifications or without modification, as the case may be; and
(b) the date on which it was confirmed.
(4) Where an order is confirmed with modifications, the modifications shall be indicated in the order by distinctive type or other means.
Of final relevance for present purposes is regulation 6, which concerns action after confirmation of a tree preservation order, and reads: |page:19|
As soon as practicable after confirming the order the authority which confirmed it shall –
(a) notify the persons interested in the land affected by the order –
(i) of the confirmation of the order;
(ii) of the date on which the order was confirmed; and
(iii) of the time within which application may be made to the High Court under Section 284… and of the grounds on which such an application may be made;
(b) where the order was confirmed with modifications, send a copy of the order, as confirmed, to those persons, and
(c) make a copy of the order, as confirmed, available for public inspection, in place of the copy made so available in accordance with regulation 3, but otherwise in accordance with paragraph (3) of that regulation.
[18] The first main submission advanced by Mr Ramby de Mello, on behalf of the claimant, is that the council were in breach of the procedural requirements by failing to serve a copy of the order, as confirmed, together with the schedule and map. The provisional order was accompanied by both a schedule and a map, but all that was served on the claimant after confirmation of the order was a notice of confirmation. Section 199(3)(c) provides that regulations may make provision for copies of the order to be served after confirmation. The submission is that the notification required by regulation 6 includes service of the order, and since the schedule and map form part of the order, they must be served with it. This provides certainty and is of considerable importance where, as here, the claimant is facing prosecution for breach of the order.
[19] In my judgment, it is clear that regulation 6 requires service of a copy of an order after confirmation only where the order has been confirmed with modifications. This is dealt with in terms in regulation 6(b), which I have read. There is no requirement to serve a further copy of the order when there has been confirmation without modification. In that situation, interested parties would already have received copies of the provisional order and all that is needed is service on them of a notice that the provisional order has been confirmed. That is what is required by regulation 6(a). Such persons are left in no uncertainty or doubt as to the contents of the order as confirmed. They do not need a further copy of what they already have. So, I reject the first submission.
[20] The claimant’s second submission is that there was a failure to comply with a requirement in regulation 5(3) as to endorsement of the order following confirmation. The body of the order was, it is accepted, duly endorsed, the language used being:
this order was confirmed by the district council of Bromsgrove on 10 June 2002 without modification.
It was signed by the district secretary. There is no equivalent endorsement to the schedule or map, and it is said that they do not contain an appropriate title or date.
[21] For my part, I do not accept that there has been any failure to comply with regulation 5. The confirmation is duly endorsed on the body |page:20| of the order as I have indicated. The schedule is referred to in the body of the order and forms part of that order. The map is referred to in turn in the schedule and also, by regulation 2(2), forms part of the order. There is no requirement in regulation 5(3) for them to be separately endorsed.
[22] In my judgment, it is sufficient that there be an endorsement of the order of which they form part, and such an endorsement was duly made. It is not suggested that there is any doubt whatsoever as to what schedule is referred to in the order so endorsed, or as to what map is referred to in the schedule.
[23] If I were wrong in relation to either of the first two points I have considered, an additional hurdle to be overcome by the claimant would be the need to show that he was substantially prejudiced by the failure to comply with such procedural requirements. No prejudice has been shown. Mr de Mello referred to a lack of clarity as to the position of the trees and to the fact that the claimant faces prosecution for breach, but the points I have considered do not touch on either of those matters. Accordingly, the conditions for a successful challenge under section 288 of the 1990 Act would not be met even if there had been a technical defect in compliance with the relevant requirements.
[24] I move to the third submission: that is, there was a breach of duty to give reasons for the making of the order. The duty to give reasons is explicit: see regulation 3(2)(a). It is not enough, submits Mr de Mello, to recite the language of the statute. More detailed reasons should be given, and they should differentiate between the position of each individual tree and of the group of trees. The statement of reasons was insufficient and does not enable the claimant to know whether the right matters have been taken into account. As I have already mentioned, the reasons for the order were stated in the notice accompanying the provisional order. I shall repeat what was said:
The council’s reasons for making the order are that the trees provide special amenity value and this order is made in the interests of amenity.
That statement of reasons is certainly brief, but it does go beyond mere recitation of the statutory language. In any event, it was, in my judgment, an adequate statement. There can be no objection in principle to reflecting the statutory test in section 198 – “expedient in the interests of amenity”. A view on the amenity value of these trees amounted to a planning judgment, which would probably be difficult to elaborate to any great extent. Such elaboration was, in any event, not necessary for these purposes. In particular, I reject the submission that it was necessary to give separate reasons in respect of each of the individual trees and the group of trees. The requirement is to state the reasons for making the order, not to give separate reasons for different parts of the schedule to the order.
[25] It is important to bear in mind that if any question arises as to consent to cut any of the trees, a refusal can be pursued on appeal before an inspector and a fuller reasoned decision will be made. I do not think that the statutory context is such as to impose a requirement for detailed reasons at this threshold stage of deciding whether to make an order in the first place. |page:21|
[26] The next complaint is that the location and number of the trees have not been specified accurately, or at all, on the map. The individual trees – T1 and T2 – are said to be shown at locations where there are no trees – although there are trees within 1-2.5m of those locations. The number of ash trees in the group is said to be wrongly stated as 18, the true number being lower. It is said that there has been a failure to show the location of each of those trees on the map. I regard all those points as being without substance. It is not suggested that the claimant is in any doubt as to which trees on his land are covered by the order. I have referred already to the inspector’s report, which sets out the claimant’s concession and the inspector’s own view on the subject.
[27] In R (on the application of Robinson) v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 63 (Admin), in [29], Sullivan J said about tree preservation orders:
A claim that a survey has been perfunctory or inadequate, even if established, would not lead the court to the conclusion that the tree preservation order was invalid as a matter of law. The consequences of a perfunctory or inadequate survey may well be that trees will have been included in an order which should have been excluded, or vice versa. So far as the latter is concerned, it is difficult to see how the landowner could sensibly complain. So far as the former is concerned, that is precisely the kind of matter which can be raised, and indeed was raised, before the inspector at the public inquiry in May 2001. Alternatively, in the absence of a general power to appeal against a tree preservation order, the matter can be tested on the merits by making an application for consent to fell those trees which are said to have been wrongly included in the order in consequence of the survey being inadequate. If the council refuses such an application for consent to fell, then an appeal can be made to the Secretary of State and the matter can be examined by an independent inspector.
In [33] of the same judgment, Sullivan J said:
In the present case both of the plans – that showing the woodland areas and that showing the area A1 – were to scale of 1:2500. But in my judgment the plan was perfectly adequate to specify the trees that were covered by this order. It is perfectly true that the plan appears to show a pecked line rather than a dotted line but Regulation 2 does not require slavish adherence to this final form. A form substantially to the same effect is permissible. The difference between a pecked and a dotted line is of no consequence whatsoever in the context of the present case. Looking at the plan, there can be no doubt whatsoever as to the extent of area A1. Indeed it was not submitted that there was any doubt about that matter.
[28] In the Court of Appeal in the same case, at [2002] EWCA Civ 17961, Scott Baker LJ observed:
The next ground of complaint relates to the inadequacy of the plans. The appellant says that the plans were inaccurate, out of date and of too small a |page:22| scale. What the regulations require is that the order “shall indicate the position of the trees, groups of trees or woodlands, as the case may be, by reference to a map” – see regulation 2. If, as the judge said, the plans attached to the order are sufficient to meet that objective, it is nothing to the point that they may be inaccurate or outdated in other respects. I have already referred to paragraph 3.9 of the guidance, which relates to the scale of the plans. In the present case, both of the plans were to a scale of a 1:2500 but in my judgment the judge’s conclusion that they adequately identified the trees and woodlands in question cannot be faulted.
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1 Sub nom Robinson v East Riding of Yorkshire Council [2003] 4 PLR 1
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[29] So, too, in the present case. If there are any inaccuracies in relation to the plan they are not material. Sufficient has been said and done to identify the trees concerned, sufficient to meet the objective of regulation 2.
[30] Mr de Mello then advanced an argument under the heading “abuse of power”, which, in substance, seems to be little more than an irrationality challenge. He says that the first order – (no 6) of 2001 – made no mention that the trees T1 and T2 were of individual merit, and said that the trees on the site were “individually… generally insignificant”. There was nothing classified either individually or as a group. The provisional order was confirmed on the same basis. Yet what has been done in the order now under challenge is different in kind to the original approach, and contrary to that approach. It is not open to the council, having decided upon one approach in 2001, to turn around and, in 2002, to classify trees individually or by a group. It is irrational for the council to have done so. At the very least, an explanation of why it did so was called for.
[31] In my judgment, that, too, is a submission without substance. The council’s evidence is that the first order was made as a matter of urgency by reference to an area and without carrying out a detailed assessment. Whether they were justified in adopting that course is neither here nor there. The challenge to the first order was withdrawn a long time ago. The council were entitled to adopt a different approach in relation to the second order and, having carried out the assessment, to identify trees individually or by reference to a group as they saw fit. There was no abuse of power of any kind in the course adopted. Whether it was appropriate to identify trees individually or by reference to a group is a matter to be determined, not upon the basis of an earlier order made in the circumstances of urgency but upon the basis of the evidence before the decision maker at the time the decision was taken. On the evidence before the council at the time of their decision to make the second order, they were fully entitled to reach the conclusion they did. There was no irrationality or other error of the kind contended for by Mr de Mello.
[32] The claimant’s next arguments are based upon the ECHR. First, it was said that the order interfered with the claimant’s right to peaceful enjoyment of his property, under Article 1 of Protocol 1, and with his right to respect to his home under Article 8. That interference was excessive and disproportionate, in particular because of the failure properly to investigate the condition of the trees T1 and T2, which, the claimant alleges, were dangerous and likely to cause damage if they fell. The |page:23| making of the order exposed the claimant to inconvenience, expense and hardship, because he would have had to go through a consent procedure in order to cut them down if they were dangerous, as he contends. Mr de Mello in his submissions relied upon Sporrong Lönnroth v Sweden A/52 (1983) 5 EHRR 35, James v United Kingdom A/98 (1986) 8 EHRR 123 and Hatton v United Kingdom 36022/971.
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1 Reported at (2001) 34 EHRR 1
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[33] So far as concerns Article 1 of Protocol 1, the short answer, in my view, is that the statutory regime concerning tree preservation orders represents a fair balance between the general interest of the community and the requirements of the protection of the individual’s rights, to use the language of the court at para 50 of James. An order may be made only where it is necessary in the interests of amenity to do so. There are elaborate procedural safeguards, including the right to make representations before an order is made and the right to seek consent under the order and to appeal to an inspector against any refusal to give such consent. One sees in all of this a striking of the balance by the legislature, and one does not need to accord a wide margin of discretion to the legislature in order to reach the conclusion that the balance has been struck appropriately. Exactly the same considerations apply to justification of interference under Article 8.
[34] I see nothing in the circumstances of the particular case that could justify the conclusion that this order – made as it is under a legislative scheme that is itself clearly ECHR-compliant – has particular features that cause it to violate the claimant’s rights whether under Article 1 of Protocol 1 or under Article 8.
[35] I should add that it is not for this court to assess the competing evidence as to whether the trees were dangerous or liable to damage property, issues that were ventilated in the challenge to the first order and the evidence upon which, together with additional evidence, were included in the papers before the court in this challenge. Although Mr de Mello submits that an obligation lay on the council to make sufficient investigation before they made an order interfering with the claimant’s rights, I am satisfied that the council had ample material upon which to form a judgment as to the appropriateness of making an order. The fact that the claimant chose not to make any representations in relation to the order now under challenge makes it impossible for him to contend that the council should have done more than they did.
[36] I also bear in mind the words of Scott Baker LJ in Robinson, in [24], where he said:
The effect of a tree preservation order is to impose an obligation to obtain consent before a protected tree is cut down or deliberately damaged etc. There is a right of appeal to the Secretary of State against a refusal by the local planning authority to grant consent. Consent is not necessary if felling is required in order to implement a grant of full planning permission or if, for |page:24| example, the tree is diseased. The making of a tree preservation order is the beginning of the road and not the end of it. The landowner has the opportunity to challenge whether one is appropriate both with the local planning authority and then, if he is unsuccessful, with the Secretary of State. What the tree preservation order does is to afford the trees covered by it protection in the meantime. It is stating the obvious to say that once a tree has been felled it cannot be reinstated. What section 198 says is that if it appears to a local planning authority expedient in the interests of amenity to make a tree preservation order, it may do so. That said, it does seem to me that some care is required by local authorities in not unjustly interfering with a landowner’s use of his land by making what I would describe as a blanket tree preservation order over an area of land when individual orders would be more appropriate. However, provided the local authority acts in accordance with ordinary public law principles, and follows the Act and regulations, the making and confirmation of a tree preservation order cannot, it seems to me, be challenged. There is no requirement for a survey. What is required is that, as has been pointed out, the subject matter of the order can properly be regarded as “trees” and that the local planning authority must judge it expedient in the interests of amenity to protect those trees.
That general statement of principle applies equally here, notwithstanding the additional arguments advanced by Mr de Mello under the ECHR.
[37] The final submission made on behalf of the claimant is another ECHR argument, this time under Article 6. Mr de Mello submits that the council’s planning committee, which confirmed the order, were not an independent and impartial tribunal under Article 6, and review by the court under section 288 of the 1990 Act is not sufficient to ensure compliance with Article 6. He referred to R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2001] 2 WLR 13891, for the general proposition that Article 6 applies to this kind of proceeding. He accepted in the light of Alconbury and the decision of the Strasbourg Court in Holdings & Barnes plc v United Kingdom 2352/02 unreported 12 March 2002 (Admissibility) that a section 78 appeal from a refusal of consent under a tree preservation order is Article 6 compliant, but he submits that the absence of corresponding procedures at the stage when the order is first made renders that initial stage in breach of Article 6.
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1 [2001] 2 PLR 76
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[38] Concerns about independence and impartiality are said to be all the more important where the committee were the same committee as had made the first order and had been involved in the lengthy dispute with the claimant. There were significant areas of factual dispute, for example about the location and safety of trees. In that respect, Mr de Mello took the issues concerning trees T1 and T2 as his focal point for the Article 6 argument, but said that the argument also extended to the order as a whole. As to the significance of factual disputes, he referred to a passage in R (on the application of Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 820 (Admin); |page:25| [2002] 1 WLR 1450 in [89] to [95]. He submitted that the decision of the House of Lords in Begum (Runa) v Tower Hamlets London Borough Council [2003] UKHL 5 – in which a local authority’s decision-making procedures under Part 7 of the Housing Act 1996, coupled with a review by the court, were held to be compatible with Article 6, despite the fact that the local authority had to resolve disputed issues of fact – was distinguishable, because the underlying issue in that case was not the engagement of human rights, whereas in this case the claimant’s rights under Article 1 of Protocol 1 and Article 8 are in play.
[39] The Article 6 argument has not been developed at any great length before me and I intend to deal with it summarily. The first obstacle facing the claimant is that he made no representations at all in this case. It was only several weeks after the order had been confirmed that he sought an opportunity to make any representations out of time. There was simply no factual dispute for the council to resolve. In so far as the council had to make findings of fact for themselves, they were merely as “staging posts” (see per Lord Bingham in [9(2)] of Begum) to the broader judgment that the council had to make. The essential requirement was to form a value judgment as to whether it was expedient in the interests of amenity to make an order under section 198. Moreover, I have referred already to the procedural safeguards that exist, both at the stage of deciding whether an order should be made and as regards the right of appeal under section 78 in respect of any refusal of consent to do acts prohibited by the order once made. In line with all that was said by the House of Lords in Alconbury, I am satisfied that the availability of review by this court under section 288 is sufficient to ensure compliance with Article 6 in the present statutory context. The approach of the House of Lords in Begum reinforces me in that conclusion, in that it makes it clear that the existence of some element of fact-finding by the administrative decision maker is not fatal to compliance with Article 6. For all those reasons, although briefly stated, I reject the submissions made in relation to Article 6.
[40] I have taken the view that the arguments merit extempore disposal rather than a more detailed analysis in a reserved judgment. For the reasons I have given, all the submissions made on behalf of the claimant are rejected, and the claim is dismissed.
Claim dismissed.
