Planning application — Residential development — Refusal of planning permission — One ground of refusal was trees subject to tree preservation order (“TPO”) would be damaged — Inspector’s assumption that new impervious road would be constructed — Application to have decision quashed — Applicants arguing inspector had no basis for that assumption on road surface — High Court holding that real if remote possibility that inspector might have reached different conclusion if he had not wrongly assumed that road would be impervious — Decision quashed
The applicants appealed against the decision of the local authority to permit the erection of 16 two-bedroomed houses with ancillary works on land at “Lystra” and “Kariba”, Mill Lane, Sevenoaks, Kent. In his decision letter the inspector was concerned that the proposed development would result in the loss of mature trees protected by a TPO, which formed a prominent feature in the locality to the detriment of visual amenity.
The inspector considered the potential impact of the access drive on the mature trees and concluded that the trunks of the trees would be so close to the carriageway edge that there would be a strong possibility of damage, particularly by larger vehicles trying to squeeze past. He stated that a new impervious road surface would be laid under nearly half the crown spread of both trees. He acknowledged that the applicants would take every care in construction of the road, having regard to advice in BS 5837 — Trees in relation to construction. However, he was concerned about the long-term survival of the trees, which were in good health. Accordingly, the inspector regarded the scheme as unacceptable because of its harmful effect on trees which were the subject of a TPO to the detriment of the appearance of the area. The applicants appealed.
Held The decision was quashed.
1. The inspector had assumed that the road would have an impervious surface whereas that was not necessarily the case and no details were before him. If the applicants were to have regard to the advice in BS 5837, as the inspector assumed they would, that advice would dictate a porous or pervious surface by the trees.
2. In the case of Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P&CR 343, Glidewell LJ said that if a judge concluded that the matter was fundamental to the decision, or that it was clear that there was a real possibility that the consideration of the matter would have made a real difference to the decision, he was enabled to hold that the decision was not validly made.
3. In the present case, the question of the road surface and the health of the trees was a major matter which the inspector had to consider. If he had considered the whole of BS 5837 there was no reason to conclude that the road would be impervious. That finding might have made no difference to the decision taken, but there was a real possibility, however remote, that if he had reached a different conclusion on the nature of the road surface, the emphasis might have shifted and a different conclusion reached.
4. It was not for the court to speculate on the issue, but on that very narrow ground the decision would be quashed.
Timothy Comyn (instructed by Sharpe Pritchard, London agents for J E Kitchin, of Forest Row) appeared for the applicants; Timothy Straker (instructed by Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondents, Sevenoaks District Council, did not appear and were not represented.
