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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Armitage & Anor v South Oxfordshire District Council [1998] EWHC Admin 315 (12th March, 1998) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1998/315.html Cite as: [1998] EWHC Admin 315 |
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1. MR
N KING (MR A PARR 12.3.98) (instructed by Messrs Clarks, Reading
2)
appeared on behalf of THE APPLICANTS
4. DEPUTY
JUDGE MACLEOD: This is an application to quash a Tree Preservation Order which
was confirmed by the Respondent on 10th September 1997. The Order related to
land at the rear of Shiplake Bottom, Sonning Common. A substantial amount of
the land is owned by the Applicant.
5.
The challenge is based on claims that the Respondent Authority failed to
have the consent of the Forestry Commissioners to the making of the Order as
required by Section 200 of the Town & Country Planning Act 1990, that an
irrelevant consideration was taken into account and a relevant consideration
not taken into account, and that the Respondent acted perversely.
6.
The Respondent's interest in making the Order arose in 1996 from their
understanding that the Applicants were selling off parts of their woodland to
the owners of adjoining houses for incorporation into back gardens. It was
considered that the woodland character was being adversely affected. There
were complaints to the Council about various activities in the woodland, and on
10th February 1997 the Council received a letter from the Forestry Authority in
the following terms:
7.
Apparent breaches of planning control were investigated by the Council and
also a Tree Preservation Order (No. 15) was made on 15 May 1997. This Order
was later withdrawn because of an administrative error but was subsequently
re-issued in identical terms, and the same Reasons for making the Order were
assumed. This was Tree Preservation Order (No. 17) issued on 11 June 1997, and
is the Order under challenge before me. The Reasons were:
8.
The Applicants' agent objected to Order No. 15 on 21 May 1997, and this
objection was carried through to Order No. 17 by letter from the Applicants on
15 June 1997.
10.
On 10th September 1997 the Respondent's Area Planning Sub-Committee
considered the Applicants' objection to the Order and also considered, as
consultee to the Forestry Authority, an application which the Applicants had
made for a Woodland Grant Scheme for their relevant land. The officer advising
the sub-committee recommended no objection to the Woodland Grant Scheme because
the proposals constituted sound Silvicultural Management and would certainly be
accepted by the Forestry Authority. He recommended also that the Tree
Preservation Order be not confirmed. This advice was based on the following
passage in his report:
11.
The Sub-Committee did accept the advice in respect of the Woodland Grant
Scheme and this was approved by the Forestry Authority on 13 October 1997.
They did however confirm the Tree Preservation Order. Mr Hooper, Deputy Chief
Executive of the Council, has sworn an affidavit. In it he explained that the
sub-committee made a site inspection of the woodland on 10th September 1997,
prior to their meeting. He also explained that the sub-committee had felt that
it was worth having a confirmed Tree Preservation Order in place as there
remained a risk that the Woodland Grant Scheme might not be completed and
continued to fear for the further maintenance and preservation of the entire
Tree Preservation Order area (the Woodland Grant Scheme covered about half the
Order area) on account of development already carried out in the woodland.
Reference was here made to the laying out of a miniature railway, formal
garden, erection of fencing and wooden structures, the placing of building
materials, and the clearance of trees. He further explained that the
sub-committee also expressed concerns that a Woodland Grant Scheme did not
guarantee the protection of the woodland when the scheme ended and they wished
to ensure such protection at that time. A Councillor, Mr Robin Peirce, has
also sworn an Affidavit in which he confirmed the concern which he and his
colleagues had for continuing protection. He added that some members had
concern that there was no obligation on the Applicants to enter into the
Woodland Grant Scheme.
12.
It is appropriate to set out Section 200 of the Town and Country Planning
Act 1990 which founds the Applicants first ground of challenge.
13.
The submission on this first point by Mr King, who appears for the
Applicants, is simple and clear. A tree preservation order, which is made
under Section 198 of the Town & Country Planning Act 1990, may be made only
if, in relation to land in which the Forestry Commissioners have an interest,
the Commissioners consent to the making of the Order. Mr King relies on
S.200(1) of the Act. He then points to S.200(2) which defines ‘interest
in land’ for these purposes, and explains that the Commissioners do have
an interest in the land the subject matter of Tree Preservation Order (No. 17),
because they have made a grant or loan under Section 1 of the Forestry Act 1979
in respect of it. This latter point is not in dispute. Mr King goes on to
argue that Tree Preservation Order (No. 17) did not have the consent of the
Commissioners to it being made when the Order was confirmed on 10th September
1997, and therefore the Respondent had no power to make and confirm the Order.
He says that it is plain that due consent was not given because later
correspondence from the Forestry Authority states that no copy of the Order was
received by them until after 12th September 1997.
14.
Mr Langham, for the Respondent, has argued an interesting response to what
appears, without more, to be a powerful point in support of the Application.
He accepts that Section 200(1) was ‘triggered’ in this case, but
argues that this was for the most technical of reasons. His argument explains
that the payment of grant does not confer any proprietary rights on the
Commissioners, and that it is the practice on payment of grant which is
important. The practice is that payment of grant is accompanied by contractual
obligations on the owner of the woodland to carry out works in accordance with
a plan of operations or other working plan. Works done under such a plan are
exempt from Tree Preservation Order control by S.200(3) of the Act, so that a
Tree Preservation Order cannot frustrate the Commissioners' aspirations under
the contractual operations. The consent requirement must therefore be
designed, argues Mr Langham, to achieve nothing more than a degree of
co-ordination between Forestry Commissioners' and planning authority control of
woodland. It is then said that this co-ordination only matters when the
Commissioners have current contractual rights against a woodland owner. In the
present case, when Tree Preservation Order 17 was made, there was no current
plan of operations, no Forestry Commission ‘control’ and therefore
no scope for the operation of S.200(3).
15.
Mr Langham then went on to argue that there was not any statutory obligation
for the ‘consent’ to be in writing, and so from a consideration of
the documents in the case it could be seen that consent had been forthcoming.
The Forestry Authority were well aware of what steps were being taken by the
Council and did not object to the Tree Preservation Order, although it would
have done so had it been opposed to it. He pointed to a letter from the
Forestry Authority dated 4th November 1997 which said that ‘It is our
policy these days to treat all such notifications as an informal consultation
and will comment if we think we need to do so’. Mr Langham then drew
attention to a letter from the Forestry Authority dated 19 November 1997,
relevant extracts from which are set out below:
16.
Mr Langham says that paragraph 4 of this extract is the correct analysis of
the position, and that the requirements of Section 200(1) have been met.
17.
I do not agree. The statutory requirement under Section 200(1) is
absolutely plain and unambiguous; the words mean what they say. I am
satisfied from what I have seen on the documentation, and particularly the
extracted parts of the Authority's letter of 19th November 1997 which says,
almost in direct terms, that consent was not given, that the statute was not
complied with, the Commissioners not having consented to the making of the
Order when it was confirmed. The Applicants have therefore made out their
first ground of challenge in its terms, and I will return to the consequences
which flow from this when I have considered the other grounds of challenge.
18.
Mr King's next ground of challenge is that the Respondent took into account
an irrelevant consideration and/or acted perversely in that the Respondent, in
confirming the Order, relied upon the letter dated 10th February 1997 from the
Forestry Authority as providing the view of the Forestry Authority that the
trees should be protected to avoid a change of use of land and the loss of
woodland. Such view was included in the stated Reasons for making the Order.
19.
I have set out the Forestry Commissioners' letter and the Statement of
Reasons, and I agree with Mr King to the extent that the Reasons do not
precisely and accurately reflect the contents of the letter, which refer to the
alternative course of placing a Tree Preservation Order if a change of land use
has already occurred, and the Reasons refers to the Order being placed to avoid
change of use and loss of woodland. However I also agree with Mr Langham that
the discrepancy was minimal and that there was evidence referred to in the
affidavit of the Deputy Chief Executive which left it open to the Committee to
take the view that changes of use in breach of planning control which posed a
threat to trees had already taken place, and this was consistent with the
situation which the Forestry Authority had postulated as appropriate for
imposition of an Order. In consequence I do not find that the Respondent did
here take account of an irrelevant consideration or act perversely to the
extent that this was a material flaw in the decision making process.
20.
Mr King's third ground is that the Respondent failed to take account of a
relevant consideration namely the advice contained in the Department of the
Environment Circular 36/78 "Trees and Forestry" and the Good Practice Guide
issued by the Department of the Environment dated October 1994 to the effect
that it is unlikely to be expedient to make a Tree Preservation Order in
respect of trees which are under good arboricultural management.
Alternatively, it is said, the Respondent acted perversely in confirming the
Order notwithstanding that advice. Underlying this challenge is the objection
made on behalf of the Applicants which had pointed out that the Applicants'
woodland had been managed professionally for a number of years. It was also
known to the Respondent that proper management would continue, as was clear
from the report to the sub-committee in consideration of the consultation of
the Woodland Grant Scheme.
21.
Mr Langham's response is that in the circumstances these policies and
guidance were not relevant, and the sub-committee was able to and did make up
its mind as a consequence of the weight which it attached to the evidence
available to it and relating to the woodlands.
22.
I do not agree with Mr Langham. It seems clear to me that the policies
which Mr King relies upon were not drawn to the attention of the Committee.
Section 198 of the Town & Country Planning Act 1990 which empowers the
making of Tree Preservation Orders does so in the terms ‘If it appears to
a local planning authority that it is expedient in the interests of amenity to
make provision for the preservation of trees or woodlands in their area, they
may for that purpose’ make an Order. These terms, in my judgment,
clearly make it relevant to consider national policy which covers this very
aspect of expediency which is set out in the Act. In my judgment there was
therefore a failure by the Respondent to take account of a material factor. I
will return later to consider the effect which should follow from that failure.
23.
The Applicants fourth and final ground of challenge is that the Respondent
acted perversely in confirming the Order in that it made its decision contrary
to the advice of its officers and unsupported by any professional advice that
the Order should be confirmed. Mr King, in arguing this ground, particularly
referred to the reliance upon the need to prevent changes in land use as a
reason for making Tree Preservation Order (No. 17), failure to understand the
advice of the Forestry Commission, the fact that the Applicants' land had been
for many years under good arboricultural management and was likely to remain
so, the national government advice as to expediency, the officer's
recommendation not to confirm, and the absence of professional advice to the
contrary.
24.
I do not consider that the Respondent acted perversely, given the wide terms
of discretion provided by the empowering Section 198(1), the relevant part of
which I have set out. There is no obligation to follow the advice of an
officer whether or not failure to follow was supported by professional advice.
There is ample evidence before me to show that the sub-committee did look at
the circumstances on the ground and act upon that and other matters which they
took into account. I do not find that perverse, nor do I consider that there
is perversity in a minimal misreading of the Forestry Authority letter of 10th
February 1997, nor by the failure to take into account a material
consideration. The latter, without more, does not in my judgment, amount to
perversity.
25.
I turn now to consider whether the errors which were made in the decision
making process, the failure to have the consent of the Forestry Commissioners
and the failure to take account of national government policy advice, should
lead to quashing the Tree Preservation Order.
26.
I find that these errors do not justify quashing Tree Preservation Order
(No. 17). So far as the consent of the Commissioners is concerned I consider
that there is clear evidence that the consent would have been given if matters
had so proceeded that consent was specifically sought. This is apparent from
paragraphs 4, 5 and 6 of the Forestry Authority's letter of 19th November 1997.
Furthermore it follows from that letter and from the letter of 4th November
1997 which sets out the Forestry Authority's procedure policy that the failure
to follow the clear requirement of the Act was, in this case, a technicality
which does not justify the quashing of the Order.
27.
I turn to the failure to take into account government policy advice that it
is unlikely to be expedient to make an Order in respect of trees under, and
likely to remain in, good management. Failure to take account of such
government advice usually means that the decision under review will be quashed,
but I find that the circumstances of this case are different, although the
omission is regrettable, especially when it had been broadly brought to
attention in the Applicants' objection letter. Nevertheless government advice
cannot change the statutory requirement of Section 198 of the Act, which, as I
have pointed out, places the decision making clearly and widely upon the
Respondent. The report which the sub-committee had before it explained the
objectives of the Applicants' Woodland Grant Scheme. It was with that
knowledge that the sub-committee visited and looked at the site and took into
account what it saw there. I have drawn attention to the Respondent's Deputy
Chief Executive's explanation of how the sub-committee did consider their
decision on the matters with which they were charged, in the light of what they
saw and knew. They rejected the report recommendation and, given the matters
with which they were specifically having concerns, I cannot discern any
justification for a view that the sub-committee would or might have reached any
different decision even if it had taken into account the omitted government
advice, notwithstanding the importance of that, and so I do not propose to
quash the decision on this ground.
29. MR
LANGHAM: In those circumstances I ask for an order that the application be
dismissed and an order for the authority's costs?
30. MR
PARR: My Lord, I resist the application for costs. The reasons are as
follows. Your Lordship found that the making of the TPO was unlawful for two
reasons: the first that the authority had not got consent of the Forestry
Commission, and secondly, they failed to take into account the national policy
guidance. Your Lordship pointed out that the second ground would have been
enough to have the order quashed in the normal course of events. Your Lordship
exercised your Lordship's discretion not to do that. Your Lordship did that on
the basis of two documents. The first was a letter from the Forestry authority
dated 19 November 1997, and the second was an affidavit sworn by the Deputy
Chief Executive on 4 December 1997. Both of those were well after the notice
of motion was served along with affidavit of the applicant. In those
circumstances I would submit that the appropriate order is that the authority
bears its own costs and pays the applicant's costs up to and including 4
December 1997.
31. DEPUTY
JUDGE MACLEOD: Thank you. I make an order dismissing this application and,
notwithstanding what was said by Mr Parr the costs will follow the event and
the authority is to have their costs.