Respondent council imposing tree preservation orders on appellant’s land — Whether survey and map inadequate for purpose — Whether appellant entitled to cross-examine witnesses under section 288 of Town and Country Planning Act 1990 — Appeal dismissed
The appellant owned a Grade II listed building, together with the surrounding heavily wooded land. The property had been subject to tree preservation orders made in 1988, but these had since lapsed. In 2000, the appellant applied for planning permission to use part of the land as a site for touring caravans. This would have entailed the felling of a number of trees in order to construct an access road. A planning officer from the defendant council visited the site. Following his visit, and using the map that had been used for implementing the 1988 tree preservation orders, the officer subsequently placed further preservation orders on the trees on the ground of public amenity.
The appellant applied unsuccessfully, under section 288 of the Town and Country Planning Act 1990, to have the orders lifted, and he appealed on the grounds that: (i) the council had failed to carry out an adequate survey of the area; (ii) the map that had been used was outdated and inadequate for the purpose; and (iii) he was refused permission to cross-examine witnesses, in particular, the council planning officer who had made the site visit.
Held: The appeal was dismissed.
A hearing under section 288 of the Town and Country Planning Act 1990 was limited to an investigation of the validity of the tree preservation orders. Guidance as to the way in which such orders should be made was contained in the Town and Country Planning Act (Trees) Regulations 1990 and in a report issued by the Department for the Environment, Transport and the Regions, entitled Tree preservation orders — a guide to law and practice, both of which should have been followed, since there was no other authoritative statutory guidance on the matter.
The court held that: (i) since legislation did not demand that a survey or an inspection of a site should be undertaken before imposing a tree preservation order, the extent of the survey carried out by the council was irrelevant when challenging the order; (ii) although the regulations stated that a map showing the location of the relevant trees and land boundaries had to be used, it was irrelevant whether the map was outdated or erroneous in other respects; and (iii) it would be most irregular to allow cross-examination of witnesses in an application under section 288 of the 1990 Act, and the judge was therefore entitled to refuse the claimant permission to do so.
The appellant appeared in person; Megan Thomas (instructed by the solicitor to East Riding of Yorkshire Council) appeared for the respondents.
Vivienne Lane, barrister
