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Cite as: [1998] EWHC Admin 315

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JEFFREY PAUL ARMITAGE and JANE FRANCIS ARMITAGE v. SOUTH OXFORDSHIRE DISTRICT COUNCIL [1998] EWHC Admin 315 (12th March, 1998)

IN THE HIGH COURT OF JUSTICE CO/3689/97
QUEEN'S BENCH DIVISION

CROWN OFFICE LIST



Royal Courts of Justice
The Strand
London

Thursday 12 March 1998






B e f o r e:

MR NIGEL MACLEOD QC
(Sitting as a Deputy Judge of the Queen's Bench Division )






B E T W E E N:


(1) JEFFREY PAUL ARMITAGE
(2) JANE FRANCIS ARMITAGE Applicants

- v -

SOUTH OXFORDSHIRE DISTRICT COUNCIL Respondent
_______________

Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4
Telephone No: 0171-421 4040
(Official Shorthand Writers to the Court)
_______________

1. MR N KING (MR A PARR 12.3.98) (instructed by Messrs Clarks, Reading 2) appeared on behalf of THE APPLICANTS


2. MR R LANGHAM (instructed by the Solicitor to South Oxfordshire

3. District Council, Surrey) appeared on behalf of THE RESPONDENT


_______________

J U D G M E N T
(As Approved by the Court )
_______________

Thursday 12 March 1998

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:



"It has been brought to my attention by a resident at Rotherfield Peppard, that an area of Old Copse Wood is being sold to local residents, as an extension to their gardens.

The Forestry Commission issued a felling approval back in 1982 on the understanding that the area would be replanted. This approval happens to fall in exactly the area now being changed into gardens.

We are unable to pursue this matter from the Forestry Act 1967 point of view because the trees being cleared are too small to require a licence.

The Forestry Commission is against the loss of woodland and so we would not want to see this area allowed a change of land use. Alternatively, if the area has already changed then a T.P.O. should be placed on the young trees to stop their removal. Any mature trees must be protected in the same way.

I look forward to hearing from you as to the outcome".

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:


"The belt of woodland which is the subject of the Order consists of young trees which are the replacements for a 1982 felling. Generally the trees are in good health and capable of developing to produce a well stocked new woodland.

The belt of woodland has recently come under a multiplicity of owners, and the Council consider that the woodland should be protected such that it should be allowed to develop into woodland as was the intention when it was replanted.

The individual trees are not yet of sufficient size to require a felling licence for their removal, but as the Forestry Authority paid a planting grant for the trees to be established, they have expressed a view that the trees be protected by an Order to avoid a change of land use and the loss of woodland.

The trees form part of a larger area of woodland, to which there is considerable public access and therefore they make a significant contribution to the amenity of the area".

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.

9. The objection was in the following terms:


"I am instructed on behalf of Mr and Mrs Armitage to object to the TPO imposed on land partly within their ownership. Whilst accepting that the trees do have an amenity value for the benefit of the residents backing thereon, the TPO is unnecessary over the land controlled by my clients. The reason for this is that the land was planted with the aid of a Forestry Commission grant following the clear fell of the previous crop of trees some 14 years ago. The site has always been managed by Tilhill Economic Forestry and will continue to be so. They are currently producing for my clients a 5 year management programme for the site bounded in red, addressing the control of Bracken and brambles and the harvest of the Larch, planted as protection for the broad leaved trees growing beneath. With planting of this nature the removal of Larch trees is a pre-requisite for the sustainability of the other trees.

The proposed Management Plan will be agreed with the Forestry Commission in the proper way, and when approved will override any TPO's on site, thus making it inappropriate on those areas to be properly managed. The DoE recognise that an Order may not be appropriate where owners are known to manage their estates acceptably with proper regard to amenity where such management is expected to continue. In woodland which has been grant aided by the Forestry Commission under one of its schemes, a TPO may only be made if the Commission gives its specific consent to the making of an Order. Such consent will usually be withheld where woodlands are under satisfactory management.

Given that no information has been gathered by the LPA in this respect, and following after the consideration of planning applications it must be concluded that this has not been properly considered.

I hope that the TPO will be reconsidered and removed from my clients land. I trust that we will be able to attend the appeal hearing and contribute to it".

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:


"6. ..... The Department of Environment Guide on Tree Preservation Orders states:

'If, for example, the Forestry Authority wish to accept an area of land into the Woodland Grant Scheme, and that land is already the subject of a Tree Preservation Order, the Forestry Authority will consult the Local Planning Authority. If that land is subsequently accepted into the Scheme any felling in accordance with an approved plan of operations or working plan would override the usual requirement to obtain the Local Planning Authority's consent under the Tree Preservation Order.'

7. In other words if the Woodland Grant Scheme is affected it overrules the Tree Preservation Order".

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.


"200(1) In relation to land in which the Forestry Commissioners have an interest, a tree preservation order may be made only if --

(a) there is not in force in respect of the land a plan of operations or other working plan approved by the Commissioners under a forestry dedication covenant; and

(b) the Commissioners consent to the making of the order.

(2) For the purposes of subsection (1), the Forestry Commissioners are only to be regarded as having an interest in land if --

(a) they have made a grant or loan under section 1 of the Forestry Act 1979 in respect of it, or

(b) there is a forestry dedication covenant in force in respect of it.

(3) A tree preservation order in respect of such land shall not have effect so as to prohibit, or to require any consent for, the cutting down of a tree in accordance with a plan of operations or other working plan approved by the Forestry Commissioners, and for the time being in force, under a forestry dedication covenant or under the conditions of a grant or loan made under section 1 of the Forestry Act 1979.

(4) In this section --

(a) "a forestry dedication covenant" means a covenant entered into with the Commissioners under section 5 of the Forestry Act 1967; and

(b) references to provisions of the Forestry Act 1967 and the Forestry Act 1979 include references to any corresponding provisions replaced by those provisions or by earlier corresponding provisions".

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:



"3. I can confirm that our National Office received a copy of TPO No. 15 on 8 May 1997, plus a copy of the TPO No. 17 sometime after 12 September 1997.

4. The fact that we did not act upon the Tree Preservation Order notification means that we had effectively given our consent as we had not exercised our right to comment.


5. I confirm that I would have supported the Tree Preservation Order had I seen a copy of it. I was still under the impression that the eastern part of Old Copse Wood was under threat from conversion to gardens.

6. I confirm that had I made an inspection of the area and decided that the threat was not there, I would have objected to the placing of a Preservation Order on the land. Had I noticed any dumping of garden waste, clearance of understorey or such like, that would have given me some idea that the area was in fact still under threat, I would have consented to South Oxfordshire District Council placing a Tree Preservation Order on the cross-hatched area on the original plan I sent you with my last letter".

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.

28. The overall consequence is that the Application fails.


29. MR LANGHAM: In those circumstances I ask for an order that the application be dismissed and an order for the authority's costs?


DEPUTY JUDGE MACLEOD: Mr Parr?

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.




_____________________________________


© 1998 Crown Copyright


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