Second respondent applying to carry out works to tree affecting his property – Tree subject of tree preservation order – Local authority refusing consent – Second respondent appealing – Secretary of State disagreeing with inspector and allowing appeal – Authority seeking to quash decision – Whether Secretary of State failing to identify works to be permitted with sufficient clarity – Application allowed
The second respondent (H) applied to the applicant local planning authority for consent for certain works to be carried out to a larch tree at a neighbouring property. The tree, which was the subject of a tree preservation order, overhung onto H’s conservatory and H felt that some work was necessary to prevent damage to his property. H initially applied for the removal of dead wood from the longest lateral branches, the regular pruning back of new shoots on remaining branches and the cutting back of certain shoots. The applicants refused consent and H appealed.
In his report, the inspector found that there was some ambiguity regarding what had actually been applied for. He concluded, inter alia, that the tree contributed materially to the amenity of the area, and he recommended that consent for any operations be refused. However, in a letter of August 2000, the Secretary of State departed from his inspector’s recommendations, concluding that the proposed work would not make a significant impact upon the amenity of the area and that, on balance, the removal of the tree’s two largest branches was justified. He allowed H’s appeal.
The applicants sought to quash the Secretary of State’s decision, pursuant to section 288 of the Town and Country Planning Act 1990, on the grounds that: (i) there was a fundamental defect in his decision, in that a lack of adequate reasoning in explaining precisely what was authorised made it impossible to know exactly which two branches could be removed; and (ii) there was no basis for his conclusion regarding the amenity value of the tree.
Held: The application was allowed.
1. The Secretary of State had failed to identify with sufficient clarity the works that were authorised by his decision. It was important to ensure that the parties concerned were left in no doubt about the matter. The person carrying out the works needed to know what was authorised, as removal of branches contrary to the tree preservation order could result in a criminal prosecution, and the enforcement authority also needed to know exactly what they could enforce. However, the scope of the consent was not sufficiently well defined.
2. Having disagreed with the views of the inspector regarding amenity, the Secretary of State should have given reasons in support of his conclusions, but failed to do so. He proceeded upon a misunderstanding of the evidence and made an ill-informed decision. The case highlighted the dangers of reaching conclusions upon the effects of amenity based upon papers in an office. Such a decision was best made by an inspector, who had the benefit of a site visit.
Alice Robinson (instructed by the solicitor to Richmond upon Thames London Borough Council) appeared for the applicant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondent did not appear and was not represented.
Sarah Addenbrooke, barrister
