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Town and country planning – Trees – Preservation order

Alternative Citations
[2013] EWCA Civ 1542

Hearing Date
4 December 2013

Court of Appeal, Civil Division

Lord Justice Longmore, Lord Justice Rimer and Sir John Mummery

David Fletcher (instructed by Thrings LLP) for the claimant. Hugh Flanagan (instructed by Shared Legal Solutions) for the authority.

Town and country planning – Trees. The local planning authority had made an area tree preservation order in respect of trees adjacent to the claimant’s farm. The claimant had opposed the TPO and submitted a report from arboriculturalists that it had instructed which stated that only two of the six identified species of tree should have TPOs made against them. The TPO was made and the claimant sought to have it quashed under s 288 of the Town and Country Planning Act 1990. The Administrative Court dismissed that application. The Court of Appeal, Civil Division, dismissed the claimant’s appeal. The authority had been entitled to be concerned by the potential risk of damage to trees that might have been caused by the claimant’s plans to surface a permissive pathway and there was no basis upon which it could be said that the authority had not been entitled to form the judgment that it had been expedient to make the TPO in respect of the identified species of trees on the farm.

The judgment is available at: [2013] EWCA Civ 1542

The claimant company produced soft fruit plants for supply to commercial fruit farms. It owned Manor Farm. Manor Farm was within a designated Area of Special Landscape Importance. The claimant wished to provide road surfacing to a five metre strip adjacent to a permissive pathway (the track) to the west side of Manor Farm. Pursuant to para A2(2)(d)(iii) of Pt 6 of the Town and Country Planning (General Permitted Development) Order 1992 (the 1992 Order), the claimant notified the local planning authority of its intention to surface the track. A provisional area tree preservation order (TPO) was made that protected all of the trees belonging to six specified species along the track.

The authority’s grounds for making the TPO included: (i) that it was in response to tree felling undertaken at Manor Farm; and (ii) the appearance that development at Manor Farm included the installation of a roadway along the track which would potentially cause significant harm to the roots and canopy of the trees, those trees providing visual amenity to the public and being of historic importance. In response to the claimant’s notification of its intention to surface the track, the authority informed the claimant that it had determined that, on the basis of the then current level of agricultural activity on the site, the claimant had not demonstrated that the track was reasonably necessary and, therefore, the intended work did not fall within the provisions of the 1992 Order. The claimant made a fresh application under the 1992 Order, stating that its intention was to install a load spreading surface. The authority determined that the proposed track was reasonably necessary and so did fall within the 1992 Order.

However, the authority did not notify its approval as to the means and siting of the construction within the prescribed time. The consequence was that the claimant became at liberty to proceed with its track works. The claimant objected to the making of the provisional TPO. In support of its appeal, the claimant submitted an arboricultural report. That report recorded that a number of trees in the area were neither safe nor healthy, nor capable of reasonably long life, and were contributing damage to buildings and ditches. Further, of the six species of tree specified in the TPO, the report considered that only two of those should have been included. The authority’s own report recorded, and apparently had not disagreed with, the arboriculturalists’ opinion as to the health of some of the trees and the damage attributable to them. The authority’s planning committee confirmed the TPO, considering it expedient to ensure the retention and appropriate management of highly visible field-boundary trees and because prior works to the trees were not considered to have been in accordance with best arboricultural practice. The claimant sought an order quashing the decision to confirm the TPO under s 288 of the Town and Country Planning Act 1990.

The application was dismissed. The claimant appealed.

It submitted, first, that the authority’s objective in having confirmed the TPO had been to enable it to do that which it had not sought to do in its response to the second notification under the 1992 Order, namely, to assume a power to control the construction of the track surface to a reasonable standard. That had been to use the TPO to achieve a purpose for which it was neither designed nor suited and had, therefore, been to use it so as to achieve an improper purpose. Secondly, an area TPO which had included admittedly unhealthy and unsound trees, when it ought to have specified particular trees that had merited protection, had been to ignore both ‘Government Guidance (Tree Preservation Orders: A guide to the law and good practice)’ and the authority’s own guidance in respect of TPOs (for relevant sections of the guidance see [29], [30] of the judgment).

The appeal would be dismissed.

(1) Both at the time of the making of the provisional TPO and at the time of its confirmation, the authority had been entitled to be concerned as to the risk of damage to the roots of the trees by the continued use of the unsurfaced track, or by the use of the track surfaced to an inadequate standard; and entitled to be concerned that the canopies of the trees were at risk of damage from vehicles or by pruning to an inadequate standard. The TPO had not been directed at achieving an objective, namely the surfacing of the road to a particular standard, which had been beyond the vires of the authority. The authority’s concern had been that the track would be used in a manner that caused damage to the tree roots. That had been a legitimate concern. It had been for the claimant to decide how its use of the track would avoid occasioning such damage (see [27], [43], [44] of the judgment).

(2) It was a misreading of the claimants arboriculturalists’ report to conclude from it that their opinion was that the majority of the trees in the protected area were unsafe, unhealthy or incapable of reasonably long life. That was admittedly the case with some of them, as the authority’s officer had recognised. The claimant’s expert’s report was, however, predominantly devoted to advancing its assessment of the ‘quality’ of the trees, being its perceived assessment of their value extending beyond matters of safety, health and potential longevity. There was no proper basis on which it could be concluded that the authority had not been entitled to form the judgment that it had that it had been expedient to make an area TPO in respect of the species of trees that the TPO had identified (see [41], [43], [44] of the judgment).

Decision of Beatson J [2012] All ER (D) 276 (Nov) affirmed.