Barney-Smith & Anor v Tonbridge and Malling Borough Council

In this appeal we must consider whether the judge in the court below was wrong to refuse to release the appellants, Reuben and Royston Barney-Smith, from the undertaking they gave to the court on 9 June 2008, by which theyundertook not to “cut down[,] lop[,] top[,] damage[,] uproot or destroy … any tree” on their land, now known as Forest Hill Park, at Labour In Vain Road in Wrotham, Kent.

With permission granted by Treacy L.J. on 25 January 2016, Messrs Barney-Smith appeal against the order of Stewart J., dated 18 December 2015, refusing their application for release from the undertaking, after a hearing on 10 December 2015. The application had been resisted by the respondent, Tonbridge and Malling Borough Council.

The land to which the undertaking relates, “land east of New Bungalow[,] Butts Hill Farm[,] Labour In Vain Road …”, has a long planning history. On 20 May 1983 the council granted planning permission for the continuation of use of part of that land as a caravan site.Further planning permissions were granted between then and March 2014.On 1 July 1983 the council made a tree preservation order (“the TPO”). In early February 2008 some of the trees on the land were felled. On 7 February 2008Treacy J., as he then was, granted an injunction preventing Messrs Barney-Smith’s father, other named defendants and persons unknown from cutting down, damaging or destroying any tree protected under the TPO.More trees were felled.The council began proceedings for contempt. It was in the course of those proceedings that the undertaking of 9 June 2008 was given. In an order made on that day Rafferty J., as she then was, adjourned the application for committal and granted permission for Messrs Barney-Smith to be added as defendants. The undertaking seems to have been complied with until November 2014. But felling then began again, and on 1 December 2014 the council launched further proceedings for contempt. Those proceedings were adjourned by consent on 12 January 2015. The application for release from the undertaking was made on 30 September 2015, Messrs Barney-Smith now contending that the undertaking had been entered into on a false understanding of the law.

The first issue in the appeal is whether Messrs Barney-Smith would be entitled, but for the undertaking, to fell trees on the land without breaching the TPO, because, as they contend, relevant planning permissions granted by the council make it lawful for them to do so. The second issue is whether, in the light of our conclusion on the first, it would now be appropriate to release Messrs Barney-Smith from the undertaking they gave to the court in June 2008. Several other questions arise from the submissions made to us by Mr Alan Masters on behalf of Messrs Barney-Smith, and I shall deal with those in discussing the two main issues.

The legislative regime for tree preservation orders originated in section 46 of the Town and Country Planning Act 1932. It has evolved through succeeding statutes.

When the TPO was made, the relevant statutory provisions were in Part IV of the Town and Country Planning Act 1971. Section 59 of the 1971 Act, “Planning permission to include appropriate provision for preservation and planting of trees”, provided:

“It shall be the duty of the local planning authority –

(a)

to ensure, wherever it is appropriate, that in granting planning permission for any development adequate provision is made, by the imposition of conditions, for the preservation or planting of trees; and

(b)

to make such orders under section 60 of this Act as appear to the authority to be necessary in connection with the grant of such permission, whether for giving effect to such conditions or otherwise.”

Those provisions were substantially reproduced in section 197 of the Town and Country Planning Act 1990. Section 60 of the 1971 Act, “Tree preservation orders”, provided:

“(1)

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 (in this Act referred to as a “tree preservation order”) with respect to such trees, groups of trees or woodlands as may be specified in the order; and, in particular, provision may be made by any such order –

(a)

for prohibiting (subject to any exemptions for which provision may be made by the order) the cutting down, topping, lopping or wilful destruction of trees except with the consent of the local planning authority, and for enabling that authority to give their consent subject to conditions;

…

…

(5)

Provision may be made by regulations under this Act with respect to the form of tree preservation orders …

… .”

The corresponding provisions in the 1990 Act are in section 198. A tree preservation order could be given provisional effect pending its confirmation, by including in it a direction under section 61 of the 1971 Act, now section 201 of the 1990 Act.

Under section 202E of the 1990 Act, as in preceding statutes, provision is made for the payment of compensation in certain circumstances where consent required under the regulations is refused or granted subject to conditions (see Bell v Canterbury City Council (1988) 56 P. & C.R. 211).

The regulations in force at the time of the making of the TPO were the Town and Country Planning (Tree Preservation Order) Regulations 1969 (S.I. 1969/17), as amended (“the 1969 regulations”). Regulation 4(1) of the 1969 regulations provided that a tree preservation order was to be “in the form (or substantially in the form) set out in the Schedule hereto”. The form of tree preservation order set out in the Schedule included, in the Second Schedule, a provision exempting from the requirement for the local planning authority’s consent “(3) the cutting down, uprooting, topping or lopping of a tree … (c) where immediately required for the purpose of carrying outdevelopment authorised by the planning permission granted on an application made under Part III of the [1971] Act, or deemed to have been so granted for any of the purposes of that Part” (my emphasis).

The corresponding exemption in the Schedule to the Town and Country Planning (Trees) Regulations 1999 (S.I.1999/1892) (“the 1999 regulations”) was “(5)(1)(d) the cutting down, topping, lopping or uprooting of a tree where that work is required to enable a person to implement a planning permission (other than an outline planning permission or … a permission granted by or under the Town and Country Planning (General Permitted Development) Order 1995) granted on an application under Part III of the Act, or deemed to have been granted (whether for the purposes of that Part or otherwise)” (my emphasis). Regulation 18(2) provided that the revocation of previous regulations, including the 1969 regulations, was not to affect any tree preservation orders made before the 1999 regulations came into force, which was on 2 August 1999.

Following changes to the law made by section 192 of the Planning Act 2008, regulations made under section 202C of the 1990 Act now provide for the exceptions to the general prohibition on the “cutting down [etc.]” of trees protected by a tree preservation order. The Town and Country Planning (Tree Preservation) (England) Regulations 2012 (“the 2012 regulations”) introduced a uniform set of procedures for all trees protected by tree preservation orders. Orders made before 6 April 2012 continued to protect the trees and woodlands to which they relate. It was not necessary for those orders to be made afresh, amended or reissued. But the legal provisions embodied in them were cancelled, and replaced by the provisions in the 2012 regulations. In regulation 14(1)(a)(vii) of the 2012 regulations an exception is now made for “the cutting down, topping, lopping or uprooting of a tree … so far as such work is necessary to implement a planning permission (other than an outline planning permission or … a permission granted by or under the Town and Country Planning (General Permitted Development) Order 1995) granted on an application under Part III of the Town and Country Planning Act 1990 (control over development), or deemed to have been granted (whether for the purposes of that Part or otherwise)” (my emphasis).

Guidance on that provision is given in the Planning Practice Guidance published by the Government (“the PPG”), as revised on 15 April 2015. Under the heading “Is there an exception for tree work relating to planning permission and permitted development?”, paragraph 36-083-20150415 of the PPG states:

“The authority’s consent is not required for carrying out work on trees subject to an Order so far as such work is necessary to implement a full planning permission. For example, the Order is overridden if a tree has to be removed to make way for a new building for which full planning permission has been granted. Conditions or information attached to the permission may clarify what work is exempt.

However, the authority’s consent is required for work on trees subject to an Order if:

•

development under a planning permission has not been commenced within the relevant time limit (i.e. the permission has ‘expired’);

•

only outline planning permission has been granted; and

•

it is not necessary to carry out works on protected trees in order to implement a full planning permission.

The authority’s consent is also required, for example, for work on trees protected by an Order that is necessary to implement permitted development rights under the Town and Country Planning (General Permitted Development) Order 2015”.

Section 210 of the 1990 Act provides for penalties for failing to comply with tree preservation orders.

For many years – at least since 1954 – land at Butts Hill Farm has been used as a caravan site, as defined in section 1(4) of the Caravan Sites and Control of Development Act 1960 (“the 1960 Act”) and section 336(1) of the 1990 Act – “land on which a caravan is stationed for the purposes of human habitation and land which is used in conjunction with land on which a caravan is so stationed”.

The parties have not been able to present us with the full planning history. But the relevant parts of it are before us.

The earliest planning permission we have seen is a permission granted by Kent County Council on 12 April 1973 (on application no. MK/4/72/1076) for “the continued use of land for the seasonal stationing of residential caravans”. Condition (i) on that permission required the permitted use to cease, the caravans on the site to be removed, and the land to be restored to its original condition, by 31 October 1983. Condition (ii) prevented the use of the site as a caravan site except between 1 March and 31 October each year. Condition (iii) required that no caravan was to remain on the site “during the remainder of the year except as may be agreed for the purpose of storage with [the council]”.

The planning permission of 20 May 1983 was granted by the council on an application made by the then owners of New Bungalow, Messrs G.A. and S.F. Morel, on 7 April 1983 (application no. TM/83/376). The development for which planning permission was granted is described in the decision noticeas “development of land situate at caravan site east of New Bungalow, Butts Hill Farm, Labour-in-Vain Road, Wrotham … and being continuation of use of land as caravan site referred to in your application for permission for development dated the seventh day of April 1983, as amplified by agent’s letters of 13/4/83 and 15/5/83”. The permission was subject to two conditions:

“

(i)

No caravan shall be occupied outside of the period 1st March to 31st October in any year.

(ii)

The landscaping scheme, being the planting of a new hawthorn hedge along the northern boundary, shall be carried out by 31st March 1984 and thereafter shall be maintained to the satisfaction of the District Planning Authority. Any of the hedge removed, dying, being severely damaged or becoming diseased within 5 years of planting shall be replaced by a new hawthorn hedge.”

The first of those two conditions was imposed “[in] the interests of amenity”, the second “[in] the interests of visual amenity”.

The letter accompanying the application for planning permission, dated 7 April 1983, referred to the proposal as “the continued use of our caravan site and hence the renewal of condition (i) of application [sic] MK/4/72/1076 dated 12 April 1973” and the deletion of condition (iii). The application form gave the area of the site as “0.88 hectares”. The drawings submitted with the application were identified as “COPY OF SITE PLAN K 425259 & SKETCH GAM 2”. The site plan showed the site of the proposed development marked as “CARAVAN SITE AND WOOD”. The sketch plan, “CARAVAN SITE AND WOOD”, showed an area in the middle of the site marked “GRASS GLADE”, encircled by an arrangement of ten caravans. On the remainder of the site, surrounding the caravans, it showed an area of trees – birch, cherry, ash and sweet chestnut. On the northern edge of the site a strip of new planting was shown, marked “ADDITIONAL HAWTHORN BUSHES EVERY METER”.

The first of the two letters referred to in the decision notice, the applicants’ letter to the council dated 13 April 1983, stated:

“… In general it is considered that the caravans are adequately screened. However, I have consulted your Mr P. Brooks, and he considers that some additional Hawthorns should be planted at one metre spacings along the back of three of the caravans as shown on the sketch GAM 2 included with the application.

We would be pleased to carry out the recommendation.

… The land is retained as a caravan site and wood and no other use is made of it in the winter.”

The second letter, dated 15 May 1983, said:

“… [We] agree with the Council[’s] concern to preserve the beauty of our wood and its contribution to the landscape.

…

We would be pleased to volunteer for a protection order on the wood

as a measure of our good intention not to spoil the beauty of the area and to assist in formalising a facility of seasonal use that has existed for over 20 years without any complaints.

… .”

The TPO was made to protect the woodland to the east of New Bungalow. Article 2 states:

“Subject to the provisions of this Order and to the exemptions specified in the Second Schedule hereto, no person shall, except with the consent of the authority and in accordance with the conditions, if any, imposed on such consent, cut down, top, lop, wilfully damage, uproot, wilfully destroy or cause or permit the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of any tree specified in the First Schedule hereto or comprised in a group of trees or in a woodland therein specified, the position of which trees, groups of trees and woodlands is defined in the manner indicated in the said First Schedule on the map annexed hereto which map shall, for the purpose of such definition as aforesaid, prevail where any ambiguity arises between it and the specification in the said First Schedule.”

Article 13(1) states that “[the] provisions of section 61 of the [1971] Act shall apply to this Order and the Order shall take effect on 1st July, 1983”. The “NOTE” in the TPO confirms that “[any] person contravening the provisions of this Order by cutting down, uprooting, wilfully destroying a tree, or by wilfully damaging, topping or lopping a tree in such a manner as to be likely to destroy it is guilty of an offence and liable on summary conviction to a fine …”.

The First Schedule identifies the protected “WOODLANDS” by reference to a map, which shows an area of trees marked “W1”, excluding an oval area corresponding broadly to the glade in the middle of the caravan site. It describes the protected woodland as “[comprising] of mainly mature and coppice Sweet Chestnut with occasional mature Beech, Wild Cherry, Ash & Oak”, and situated on “[land] to the east of New Bungalow, Butts Hill Farm, Labour-in-Vain Road, Wrotham”.

The Second Schedule states that the TPO “shall not apply so as to require the consent of the authority” to any of several specified actions, including:

“…

(3)

the cutting down, uprooting, topping or lopping of a tree.

…

(c)

where immediately required for the purpose of carrying out development authorised by the planning permission granted on an application made under Part III of the Act, or deemed to have been so granted for any of the purposes of that Part;

… .”

On 9 October 1990 planning permission was granted for the construction of a “[detached] bungalow for short let holiday use in place of site for ten static caravans” (application no. TM/89/1279). Condition (vi) stated that the development was to be “carried out in such a manner as to avoid damage to the existing trees, including their root system, or other planting to be retained as part of the landscaping scheme …”. That condition was imposed “[pursuant] to [section] 197 [of] the Town and Country Planning Act 1990 and to protect the appearance and character of the site and locality”.

Planning permissions granted on 23 April 1991 (application no. TM/91/0198), 12 December 1991 (application no. TM/91/1267), 23 December 1993 (application no. TM/93/1370FL), and 26 August 1994 (application no. TM/94/0931FL) adjusted the restriction on the period in any calendar year during which caravans on the site could be occupied. None of those planning permissions was subject to any conditions relating to the trees on the site.

On 17 April 1997 the council made no objections to a proposal by the Forestry Commission for “general woodland management” at “Butts Hill Farm” (application no. TM/97/00266/WG).

On 27 July 1998 the council granted planning permission for the “construction of a driveway and associated access onto Labour-in-Vain Road to serve holiday park and agricultural land at Butts Hill Farm” (application no. TM/98/00497/FL). Condition 2 required the carrying out of the “scheme of landscaping and boundary treatment shown on the approved plans”, and the replacement of “[any] trees … which within 5 years of planting are removed or become seriously damaged or diseased …”. That condition was imposed “[pursuant] to [section] 197 of the Town and Country Planning Act 1990 and to protect and enhance the appearance and character of the site and locality”.

On 15 January 2004 the council granted consent under the 1969 regulations for work to trees at “Butts Hill Farm” (application no. TM/03/03511/TPOC). The proposed work was described in the consent as:

“To fell all Wild Cherry and Sycamore. To re-coppice all multi-stemmed Chestnut, Ash, Hawthorne and Hazel trees. Remove all dead/dangerous and wind blown trees. All other standard trees to be dead wooded and thinned by 20%. To remove all small saplings which are overcrowded by other trees and to replant with native species”.

Further consents under the 1969 regulations were granted on 11 October 2010 (application no. TM/10/02351/TPOC) and 7 May 2013 (application no. TM/13/00962/TPOC).

On 10 March 2014 the council granted planning permission for the “[removal] of condition 1 of planning permission TM/83/376 (as last varied by permission TM/94/0931/FL) to allow year round use of the whole caravan park” (application no. TM/13/03329/FL). None of the conditions related to trees on the site.

Finally, a further consent for work to trees at “Four Seasons Park” was granted under the 1969 regulations on 2 December 2014 (application no. TM/14/03526/TPOC).

Mr Masters reminded us of the provisions in sections 1(1), 3(3), (4) and 5 of the 1960 Act, and of the permitted development rights in Part 5, Class B of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (S.I. 2015/596) for “[development] required by the conditions of a site licence for the time being in force under the 1960 Act”. Site licences were granted on 3 November 1983, 29 September 2008, 12 December 2008 and 22 November 2012. Condition 1 of the site licence granted by the council on 3 November 1983 stated that “[the] number of caravans on the site shall not exceed 10 …”. The site licence granted on 22 November 2012 had no condition limiting the number of caravans on the site. Condition 1, “Use of Site”, stated that “[the] caravans shall be occupied for holiday purposes only and not as any person’s sole or main place of residence”. Condition 7, “Hard Standings”, stated that “[where] possible, every caravan should stand on a concrete hard standing of suitable material …”. We were told that there are now 33 caravans stationed on the site, all on concrete pitches, the last of which was put in place in 2006.

Treacy J.’s order of 7 February 2008 required, in paragraph 1.1, that “[the] Defendants or any Defendant shall not except with the consent of the authority and in accordance with conditions cut down, top, lop, wilfully damage, uproot, wilfully destroy or cause or permit the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of any tree specified in the First Schedule to the TPO dated 1 July 1983 … on Land to the east of New Bungalow …”. In an affidavit dated 16 May 2008 the council’s Team Leader of the Planning Enforcement Team, Ms Joanna Russell, described an inspection of the site undertaken by officers on 14 May 2008. Seven trees had been removed since the site was surveyed on 27 March 2008, four of which were protected under the TPO, two of them sycamores felled in breach of a condition imposed on the consent granted by the council on 15 January 2004 (paragraphs 13, 14 and 17 of Ms Russell’s affidavit).

The undertaking given to the court by Messrs Barney-Smith and their father on 9 June 2008 states:

“WE, and each of us, hereby solemnly undertake before the Court that we:

The background to the giving of the undertaking is described in the affidavit, dated 28 November 2014, of the council’s Senior Planning Enforcement Officer, Mr Richard Edmonds (in paragraph 16):

“16.

On the morning of Sunday 16 November 2014, I had cause to visit the Site following information that work was being undertaken on the Site. When I arrived at the site, I noted that the landscaped area, which the Undertaking required to be provided and maintained, had been cleared. I also noted that a mature tree within the Site, and within the area protected by the Undertaking from any works to cut down, lop, top or damage any tree, was in the process of being felled.”

and in his witness statement, dated 3 December 2015 (in paragraphs 5 and 6):

“5.

… The Defendants chopped down many trees that were subject to the TPO … and in breach of [the injunction granted by the court on 7 February 2008]. In subsequent contempt proceedings the Defendants gave an undertaking to submit a scheme for landscaping, including tree re-planting and then plant to carry out that scheme and maintain it thereafter in an area which included not just the area of the original TPO area but also an area to the west of that. They undertook to maintain it thereafter as identified in the said scheme. The undertaking entered into was in relation to a different area to [the TPO] because it was necessary to compensate for the loss of mature [trees protected under the TPO]. The Court defined the land to which the undertaking related to as that on Plan 1 attached to the Court Order [dated 9 June 2008] which indicated that it was the TPO land and land to the west of [the TPO] Area. The Court was of course well aware of the area the TPO covered as this was attached to the Court Order of 7 February 2008. … The scheme that was duly submitted and approved covered the area that the court defined on plan 1. … .

6.

On 16 November 2014 as set out in my affidavit [of 28 November 2014] I noticed that this undertaking had been breached as the trees planted pursuant to the scheme submitted under the undertaking were deliberately and consciously removed from the land. … .”

In his judgment Stewart J. dealt not only with the submissions made by Mr Masters on behalf of Messrs Barney-Smith at the hearing but also with various contentions on the law put forward by their solicitor, Mr Alexander Brooke-Smith, in his witness statement of 28 September 2015, and by their planning consultant, Mr John McDermott, in his witness statement of the same date. Stewart J. rejected all of those arguments. Concluding his judgment, he said (in paragraph 15):

“Do I accept the Applicants’ submissions? I do not, for these reasons:

(1)

[The] situation here is not in my judgment analogous with the grant of permission for operational development where planning permission is given to build a garage precisely where a tree, the subject of a TPO, is situated.

(2)

The planning permission which is permissive as to the continuation of use of the Land as a caravan site does not exclude the subsequent imposition of a TPO. Indeed, … in this case a TPO was specifically offered by the Applicant for the planning permission.

(3)

This is not a planning permission for operational development. … [Here Stewart J. referred to the observations made by Lord Denning M.R. on the distinction between operational development and development consisting of a material change of use in Parkes v Secretary of State for the Environment [1978] 1 W.L.R. 1308, at p.1311E-F].

(4)

Therefore the Council was fully entitled to impose a TPO which is a separate regime to imposing conditions on planning permission.

(5)

The exemption in para. 3(c) of the Second Schedule to the TPO does not assist the Applicants because felling trees [etc.] was not ‘immediately required’ for the purpose of carrying out the planning permission development. The permission could be implemented in different ways, some of which might require tree felling, some would not. The planning permission itself did not immediately require the felling of trees especially in the context … that no trees were felled in the number of years preceding the continuation of use grant in 1983 or thereafter until 2008. Article 1 Protocol 1 adds nothing here if there is a lawful TPO which the Applicants breached, as I have found. …[Here the judge referred to the guidance in paragraph 36-083-20150415 of the PPG]. It was not necessary to carry out works on protected trees in order to implement the planning permission. Therefore the planning permission was lawfully subject to the TPO. Therefore the application fails.”

and (in paragraph 16):

“… [There] was a possible suggestion that because the undertaking required planting in places other than where trees had been felled in 2008 and maintaining them that it was perhaps wrong on that basis alone to hold the Applicants to their undertaking. If such a suggestion was made I reject it. If the original application by the Claimant was soundly based, as I found it was, an undertaking in the terms given was also soundly based.”

Mr Masters submitted that Messrs Barney-Smith, as owners of the land, may lawfully use it under the several planning permissions granted for the caravan site, subject only to the restrictions imposed in conditions. They can do so without having to seek the council’s consent for such work to trees protected under the TPO as may be required to accommodate additional caravans on the site, or to enable caravans to be moved from one place to another within it. Under the planning permissions the owners of the site have been free to station any number of caravans anywhere on the site to which those permissions relate, whenever they chose to do so.And the council does not contend that there has been any breach of the conditions which it has imposed on those permissions. No conditions have ever been imposed limiting the number of caravans on the land, or their siting. None have been imposed for the safeguarding of trees. The removal of trees from the part of the site covered by the TPO has, at every stage, been “immediately required for the purpose of carrying out development authorised by … planning permission”, as Messrs Barney-Smith –and previous owners of the site –have chosen, and been entitled, to do.In the absence of any relevant restriction in the May 1983 planning permission and subsequent grants of permission for caravan site use, they were “exempt from the provisions of the TPO by virtue of [paragraph 3(c) of the Second Schedule]”. Indeed, Mr Masters submitted, it was only by cutting down protected trees within the site that Messrs Barney-Smith could “fully implement” the May 1983 planning permission.

Focusing on the concept of a material change of use under section 57 of the 1990 Act, Mr Masters submitted that “one may change the use of land (and cut down any trees on the land in order to do that) provided that the use is not materially different from that which is currently permitted under a planning permission”. He relied on three decisions at first instance: the decision of Mr Robin Purchas Q.C., sitting as a deputy judge of the High Court, in I’m Your Man Ltd. v Secretary of State for the Environment [1999] 77 P. & C.R. 251 –where he acknowledged (at p.259) that when an application is made for planning permission for a temporary change of use, the approved change of use will nevertheless be permanent in the absence of any condition limiting the duration of the permission; the decision of the Divisional Court inR. (on the application of Altunkaynak) v Northampton Magistrates’ Court [2012] EWHC 174 (Admin)– where Richards J., as he then was, observed (in paragraph 39 of his judgment)that, generally, if a limitation is to be imposed on a permission granted on an application it has to be done by condition; and, in particular, the decision of Hickinbottom J. in Cotswold Grange Country Park LLP v Secretary of State for Communities and Local Government [2014] EWHC 1138 (Admin) –where he said (at paragraph 15 of his judgment):

“… [The] grant identifies what can be done – what is permitted – so far as use of land is concerned; whereas conditions identify what cannot be done – what is forbidden. Simply because something is expressly permitted in the grant does not mean that everything else is prohibited. Unless what is proposed is a material change of use – for which planning permission is required, because such a change is caught in the definition of development – generally, the only things which are effectively prohibited by a grant of planning permission are those things that are the subject of a condition, breach of a condition being an enforceable breach of planning control.”

In this case, submitted Mr Masters, “since the landowners were lawfully entitled to cut down trees in order to implement their planning permissions, their actions in 2008 could not have been a breach or anticipated breach of planning control and/or a breach of the terms of the TPO and/or [the 1999 regulations], which specifically allowed for the cutting down of trees in order to implement the planning permissions”.

Mr Richard Ground Q.C., for the council, submitted that Mr Masters’ argument was mistaken. Though the planning permission of May 1983 did not prevent the number of caravans on the site being increased, nor fix the position of pitches for them,it could nevertheless be implemented, as granted, without requiring the felling of trees protected by the TPO. If the owner of the site wanted to cut down trees so that he could increase the number of caravans on the site, he would need the council’s consent for that work to the trees, even though he might not require a further grant of planning permission. Thus, Mr Ground argued, the felling of protected trees on the site in 2008, without the council’s consent, was in breach of the TPO and unlawful.

I cannot accept Mr Masters’ submissions. I do not think they can be reconciled with the true purpose and effect of the legislative regime governing the protection of trees under tree preservation orders, either as it was at the time of the making of the TPO in July 1983 or as later amended. Nor, in my view, can they be reconciled with the terms of the TPO itself, correctly understood.

The legislative regime for tree preservation orders does not stand apart from the comprehensive statutory scheme for land use planning. It is an integral part of that statutory scheme, and an important one. This may be seen in the provisions in sections 59 and 60 of the 1971 Act, and now in sections 197 and 198 of the 1990 Act. There are two means by which a local planning authority can achieve formal protection for trees and control over work to trees which have been given such protection, namely the imposition of conditions on the grant of planning permission and the making of tree preservation orders. They can be used in combination with each other, or separately. That is left to the local planning authority’s discretion.The authority’s power to make a tree preservation order, and the consequent statutory protections for the tree or trees included in that order, complement its functions in making decisions on proposals for development, including its power to impose conditions on grants of planning permission.

We are concerned mainly with the relationship between the TPO and the planning permission granted on 20 May 1983. But if one looks more broadly at the whole sequence of planning permissions and consents for work to protected trees granted between May 1983 and December 2014, one sees nothing inconsistentbetween the council’s decision-making on applications for planning permission and its decisions directly affecting the trees protected under the TPO. On the contrary, the planning history shows the council exercising its development control powers entirely consistently with the use of its powers to maintain the protection of those trees.

The May 1983 planning permission is not hard to understand. If one adopts the conventional approach to interpretation, there is, I think, no difficulty in discerning the meaning of the permission from the grant itself, including the two conditions imposed, and the documents explicitly incorporated into it (see the decision of the Supreme Court in Trump International Golf Club Scotland Ltd. v Scottish Ministers [2015] UKSC 74, in particular, the judgment of Lord Hodge at paragraphs 32 to 37, and the judgment of Lord Carnwath at paragraphs 45 to 66). The planning permissionis not ambiguous. It is in perfectly clear terms. It permits a further continuation of an existing use – the use of the land as a “caravan site” – beyond the time limit imposed under the planning permission of 12 April 1973. It does not permit a change of use, or operational development of any kind. The decision notice refers to the application for planning permission and, specifically, the letters of 13 April and 15 May 1983. Those letters described the nature of the use proposed. They emphasized the intention to provide adequate screening for the caravans on the site – clearly meaning the ten caravans shown on the sketch plan; to retain the land as “a caravan site and wood” (the letter of 13 April 1983); and to “preserve the beauty of [the] wood and its contribution to the landscape” (the letter of 15 May 1983). The letter of 15 May 1983 also confirmed that the applicants would be “pleased to volunteer for a protection order on the wood …”. This was clearly an invitation to the council to make a tree preservation order. It shows that the applicants saw the continued use for which they sought planning permission as wholly compatible with the formal protection of the trees by means of such an order.

Neither of the two conditions imposed on the planning permission specifies or limits the number of caravans that may be stationed on the site at any one time. No such limit was imposed in that permission, or in the previous permission for a continuation of caravan site use granted in April 1973. Neither condition confines the continued use to a particular area of the site, or specifies the individual siting of caravans within it. In both respects the planning permission allowed a good deal of flexibility in the implementation of the development it permitted. And the reasoning in the first instance decisions in I’m Your Man, Altunkaynak, Cotswold Grange Country Park LLP, and others such as Winchester City Council v Secretary of State for Communities and Local Government [2013] EWHC 101 (Admin) is not in dispute here. In the light of those decisions I cannot see how it could be submitted that a limit on the maximum number of caravans or their arrangement on the landcould properly be readinto the planning permission. Mr Ground effectively conceded as much.

What Mr Ground did not concede, however, was that the TPO is to be understood as Mr Masters argued it should be. He did not accept that it prohibits, without the council’s consent, the actionsspecified in the Second Schedule only until the owner of the site chooses to put a caravan or caravans in a part of the site where it would be impossible to site a caravan without either felling one or more of the protected trees or carrying out some other work short of felling, such as lopping. That understanding of the TPO and its relationship with the May 1983 planning permission, Mr Ground submitted, is untenable. If the court held that it was right, the legislative regime for tree preservation orders would be seriously weakened. In this case the TPO would be largely ineffective to protect the woodland it was intended to safeguard. Indeed, it would have been rendered redundant even before it was made – and that simply cannot be so.

Those submissions of Mr Ground are, in my view, essentially right. The TPO is itself in clear terms, which conform to the standard requirements for a tree preservation order as they were at the time it was made – under section 60 of the 1971 Act and regulation 4(1) of the 1969 regulations. The only question of construction we have to consider here is the meaning of the relevant exemption in the Second Schedule, the exemption for work to protected trees that is “immediately required for the purpose of carrying out development authorised by the planning permission granted on an application made under Part III of [the 1971 Act], or deemed to have been so granted for any of the purposes of that Part”. The crucial question for us is the meaning of the expression “immediately required for the purpose of …”. I see no difficulty in construing that expression in its context. The words have their ordinary meaning. They connote nothing more or less than the concept of it being necessary, as an immediate requirement, to undertake work to protected trees to make it possible to carry out development for which planning permission has been granted, or deemed to be granted.

Leaving aside the other exemptions, with which we are not concerned, if the felling of a protected tree – or something less than that, such as topping or lopping – was “immediately required” because otherwise the landowner would be unable to carry out the development in question, he would not need the council’s consent for the work. But if it were possible for the planning permission to be implemented without such work being undertaken, the work would, self-evidently, not be “immediately required for the purpose of carrying out [the] development …”, and it would not be lawful to do it without the necessary consent. In those circumstances the development could still be carried out under the planning permission or deemed planning permission, but it could not lawfully be carried out in such a way as to negate the protection afforded to the trees by the TPO. The fact that otherwise, had the TPO not been made, the development could have been lawfully carried out in some other way, without the council’s consent having to be sought for work to the protected trees, is immaterial. So too is the fact that a particular developer or landowner might prefer, in carrying out the development, to make way for it by undertaking work to protected trees, even though that work was not immediately required, or required at all, to enable the planning permission to be implemented. The critical question is whether the development was capable of being carried out without destroying or injuring trees protected by the TPO. That is not a question of a developer’s preference. It is a question of fact.

This, in my view, is an entirely natural and entirely unsurprising interpretation of the relevant exemption in the TPO. It is not only true to the language of the TPO, which itself is true to the provisions of the legislative regime for tree preservation orders under the 1971 Act and the 1969 regulations. It also respects the relationship within the comprehensive statutory scheme between grants or deemed grants of planning permission for development and tree preservation orders, whose purpose is to protect trees from development. It maintains the requisite balance in that relationship, which Parliament clearly intended. And in my view this may also be said of the legislative regime as modified by subsequent amendments, including the amendments introduced in the 1999 regulations and under the 2008 Act and the 2012 regulations.To be clear, the same understanding of the exemption for development for which planning permission or deemed planning permission has been granted would also apply, in principle, to the concept of work to trees being “required to enable a person to implement a planning permission …”, under the 1999 regulations, and to the concept of such work being “necessary to implement a planning permission …”, under the 2012 regulations.

Sometimes of course – indeed, often – development for which planning permission has been granted can only be carried out if work is undertaken to trees protected under that order. The obvious example – the one given in paragraph 36-083-20150415 of the PPG – would be operational development such as the construction of a house or a factory, for which full planning permission has been granted, fixing the siting and design of the building so that it must be erected on a part of the site where there are trees protected under a tree preservation order. In such a case there will be only one way in which the planning permission can be implemented, and it will be obvious, as a matter of fact, that the development cannot be carried out unless protected trees are removed within the area where the building will stand. The protection of the trees under the tree preservation order would then yield to the implementation of the planning permission, because otherwise the planning permission could not be implemented. That might not be so, however, where outline planning permission has been granted and the siting of the building or buildings approved has been left to be resolved at reserved matters stage (see Bellcross v Mid-Bedfordshire District Council [1988] 1 E.G.L.R. 200, where Simon Brown J., as he then was, considered the effect of making a tree preservation order after outline planning permission had been granted but before reserved matters had been approved). Under the 1999 regulations and now under the 2012 regulations, the relevant exemption is expressly qualified so as to exclude outline planning permission.

In this case the development approved by the council in the May 1983 planning permission could be carried out in various ways. The TPO came into effect on 1 July 1983. By then the use of the site as a caravan site, whose “continuation” was approved in the planning permission, had existed for some time. It was capable of being carried out, and was carried out, without the need for protected trees to be removed or cut back. As Mr Ground said, the site was evidently used under the May 1983 planning permission for some 25 years, until 2008, without protected trees being felled without the council’s consent. The fact that Messrs Morel, or their successors as owners of the caravan site, could have chosen to implement the planning permission by re-positioning the caravans already there, or bringing on more, so as to need the council’s consent for work to trees protected by the TPO does not mean that the trees were not protected. Nor does it mean that any work to protected trees was ever “immediately required” for the purpose of carrying out the development authorized by the planning permission, or “required” or “necessary” for the implementation of the permission.

The complaint that the TPO makes it impossible to “fully implement” the May 1983 planning permission is misconceived. The planning permissions and the TPO, properly understood, are perfectly compatible. There is no conflict between them.There was never any question of the May 1983 planning permission automatically displacing the subsequent protection of trees by the TPO, or of any of the later permissions having that effect. The planning permissions contain no restrictions as to the number and siting of caravans. But they do not simply nullify the TPO or override it. On the other hand, there is no question of the TPO precluding the lawful and effective implementation of the planning permissions. The development did not require the felling of protected trees. It could be carried out without any trees having to be cut down. However, the felling of protected trees was not entirely prevented by the TPO; it was still possible, with the council’s consent.

Mr Masters submitted that local planning authorities were under “a statutory duty [formerly in section 59(a) of the 1971 Act, and now section 197(a) of the 1990 Act] to consider any trees that may be affected by … development and any [tree preservation order] then in place and to impose conditions when a planning permission is granted for the preservation of those trees”. In this case, said Mr Masters, both before the TPO was made and afterwards, the council had clearly decided not to impose any condition to safeguard trees. It had several opportunities to do so. But it never did. In these circumstances, Mr Masters submitted, the council could not expect to be able to rely on the TPO to protect trees on the site if the landowner wanted to fell those trees to enlarge the area on which caravans could be stationed.

I reject that argument. It does not reflect the relevant statutory provisions. As I have said, the duty in section 59(a) of the 1971 Act, and now in section 197(a) of the 1990 Act, leaves it to local planning authorities to decide whether the imposition of a condition “for the preservation or planting of trees” is “appropriate”. Whether a condition is “appropriate” will depend on the circumstances. If a tree preservation order has already been made –or is about to be made –to protect trees that might otherwise be at risk from the development proposed, a condition may be unnecessary and therefore inappropriate. Under section 59(b) of the 1971 Act, and now section 197(b) of the 1990 Act, tree preservation orders need only be made when they are “necessary in connection with the grant of [planning permission]”. They may be made whether or not a condition protecting the trees has been imposed on a planning permission – either “for giving effect to such conditions or otherwise”. When a condition has not been imposed, a tree preservation order may well be “necessary”. In this case it clearly was.

It was common ground before us that the status of any operational development on the site is irrelevant. I agree. Mr Masters pointed out that caravans could be stationed on the site without hard standings having been created for them, but also that hard standings were required by condition 7 of the site licence of 22 November 2012 and could therefore be constructed as permitted development. However, as Mr Ground submitted, in this case no operational development on the site was “authorised by the planning permission granted on an application made under Part III of the Act”. Nor was permission for any operational development on the site “deemed to have been so granted for any of the purposes of that Part”. That part of the exemption in the TPOcovered only development for which permission was deemed to be granted under various provisions of the 1990 Act (sections 90, 173 and 222). So it would not have applied to “permitted development” –development for which permission was actually granted by a development order, such as the Town and Country Planning (General Permitted Development) Order 1995, in accordance withsection 60. And in any event, as Mr Ground also submitted, the permitted development rights for the construction of the hard standings required by condition 7 of the site licence granted in November 2012 could not have applied to any such development carried out before then. When the injunction was granted (in February 2008) and the undertaking given (in June 2008), the site licence in force was the one granted November 1983, which had no condition requiring hard standings.

Mr Masters also submitted that Stewart J. was wrong to rely on the guidance in paragraph 36-083-20150415 of the PPG, because the legislative provisions to which that guidance relates were not in force when the relevant planning permissions were granted or when trees on the site were cut down in February 2008. I see nothing in that submission. It does not undothe judge’s basic analysis in paragraphs 15 and 16 of his judgment, with which I agree. At least in the circumstances of this case, the modification of the relevant statutory exception –from the concept of work to trees “immediately required for the purpose of carrying out development authorised by the planning permission …” (in the 1969 regulations) to the concept of work “required to enable a person to implement a planning permission …” (in the 1999 regulations) to the concept of work “necessary to implement a planning permission …” (in the 2012 regulations) –would make no difference to that analysis. However the exception was formulated, none of the felling of trees in the woodland protected by the TPO, if undertaken without the council’s consent, would have come within it. Such felling would have been in breach of the TPO and unlawful.

If my conclusion on the previous issue is right, I cannot see how we could sensibly decide that Messrs Barney-Smith should now be released from the undertaking. In my view the undertaking remains both valid and necessary, and no less so than it was in June 2008. It was freely given to the court, evidently in the light of professional advice. It was not based on a false understanding of the planning permissions or of the TPO, or, it would seem, in ignorance of the law relating to the protection of trees. In this appeal we have been urged to accept a very different understanding of the law, which I believe is wrong. That argument could have been put forward in the injunction proceedings in February 2008, or in the contempt proceedings in June 2008. It was not. But if it had been, it should certainly have failed.

In opposing Mr Masters’ submission that we should overturn the judge’s refusal to release Messrs Barney-Smith from the undertaking, Mr Ground relied on observations made by Rix L.J., with which Etherton and Lewison L.JJ. agreed, in Tibbles v SIG Plc (Trading as Asphaltic Roofing Supplies) [2012] EWCA Civ 518, on the power of the court under CPR rule 3.1(7) to “vary or revoke” an order it has made. Having referred to the salient case law –including the judgment of Dyson L.J., as he then was, in Collier v Williams [2006] 1 W.L.R. 1945 (at paragraphs 40, 119 and 120), the judgment of Buxton L.J. in Edwards v Golding [2007] EWCA Civ 416 (at paragraph 24), and his own in Roult v North West Strategic Health Authority [2010] 1 W.L.R. 487 (at paragraph 15) – Rix L.J. said this (in paragraph 39 of his judgment):

“(i)

Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR 3.1(7), there is in all probability no line to be drawn between the two. The rule is apparently broad and unfettered, but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion. Whether that curtailment goes even further in the case of a final order does not arise in this appeal.

(ii)

The cases all warn against an attempt at an exhaustive definition of the circumstances in which a principled exercise of the discretion may arise. Subject to that, however, the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated.

…

I do not think Messrs Barney-Smith can draw any support from therelevantauthorities. Treacy J.’s decision to grant the injunction in February 2008 is not vitiated by any material error of fact. None is suggested. And there has been no material change in circumstances to cast doubt on the correctness of that decision, or to make the undertaking unnecessary. Mr Masters said there had been “numerous changes” of circumstances since the injunction was granted and the undertaking was given to the court in June 2008. He relied on the decisions the council had made in the course of the subsequent planning history, in particular the planning permission it granted in March 2014 for the removal of condition 1 in the May 1983 planning permission so as to permit year-round use of the caravan site(application no. TM/13/03329/FL). He referred to a passage in the officer’s report to the council’s Area 2 Planning Committee for its meeting on 28 October 2013, when it considered that proposal. The officer had said (in paragraph 3.5 of his report) that “[a] number of trees were felled and coppiced in 2005, primarily in the central and northern part of the site”, and that “[some] of these fell outside the TPO and other work was in accordance with the 2003 TPO consent but 4 protected trees were felled without consent”. The council was prepared to grant planning permission for that proposal, and in doing so did not impose any conditions relating to trees on the site. That is true. But in my view there is nothing in the site’s planning history after June 2008 that can be said to removethe need for the undertaking, or the need to hold Messrs Barney-Smith to it. None of that planning history alters the relationship between the planning permission granted in May 1983 and the TPO.

The application for release was made very late indeed, more than seven years after the undertaking was given. In such circumstances the likelihood of prejudice to a respondent is obvious. Mr Masters submitted that it was “untenable” to suggest there has been any real prejudice in this case. I disagree. In a case where the public interest is engaged, as it will always be when a local planning authority is exercising its functions under the statutory code for land use planning, there is liable to be real prejudice to good administration if landowners are permitted, long after the event, to avoid the consequences of orders made by the court or undertakings given to it. Local planning authorities, and the public, are entitled to expect such orders and undertakings to be complied with –and, if need be, enforced. I can see no reason why this case should be different.

Somewhat tentatively, Mr Masters also submitted, as he did to the judge, that the making of the TPO constituted a breach of the right to property in article 1 of the First Protocol to the European Convention on Human Rights. The judge roundly rejected that submission. He was right to do so. The TPO was lawfully made, in the public interest, in accordance with the legislative regime for the making of tree preservation orders. In so far as it interfered with the landowners’ right in article 1 of the First Protocol, such interference was proportionate and lawful. And the injunction proceedings were themselves a legitimate and proportionate means of securing compliance with the TPO.

For the reasons I have given I would dismiss the appeal.

Mr Ground invited us, if we dismissed the appeal, to consider making directions in the contempt proceedings, which are still in abeyance. I do not think we should do that. In my view suitable directions can now be given by a judge sitting in the Planning Court. I would add, however, that it is clearly desirable for those proceedings to be concluded without further delay.

I agree with both judgments that the action taken by the appellants in cutting down trees involved a breach of the TPO, essentially for the reasons my Lords give. On the appellants’ case a TPO is useless in a case such as this. Protecting trees could only be achieved by attaching an appropriate condition to the planning permission itself. That is in my view wrong in principle, unsupported by authority, and flies in the face of the legislation which specifically envisages that planning conditions and TPOs provide alternative and complementary means of securing tree protection, as para.38 in the judgment of Lindblom LJ above.

Even had the appellants’ substantive argument been successful, I would not have been willing to revoke or vary the order with retrospective effect for the reasons given by Lindblom LJ. However, like the Chancellor, I would prefer not to express a view as to whether it would have been appropriate to revoke the order for the future.

I agree with the judgment of Lord Justice Lindblom and the order that he proposes. I would, however, like briefly to express my principal reasons in my own words.

The central question in the appeal is whether the Appellants were entitled to cut down trees on the Caravan Park in order to site further caravans without infringing the Tree Preservation Order dated 1^st July 1983 (the “TPO”). That Order contained an exemption in the Second Schedule that provided that the TPO was not to apply so as to require the consent of the Respondent Council to the cutting down of a tree “where immediately required for the purpose of carrying out development authorised by the planning permission granted under Part II of the [Town and Country Planning Act 1971] …”.

It was ultimately common ground that the relevant planning permission was that dated 20^th May 1983 (the “Planning Permission”), which had been repeatedly amended and reinforced in ways that Lindblom LJ has comprehensively explained. That Planning Permission provided that the Respondent had “granted permission for development of land situate at [the Caravan Park] and being continuation of use of land as caravan site referred to in [the application dated 7^th April 1983] as amplified by agent’s letters of 13/4/83 and 15/5/83”. Mr Richard Ground QC, counsel for the Respondent, disavowed reliance on the application or the letters as showing that the permission itself actually restricted the felling of trees, even though he said that they demonstrated at least the landowners’ willingness to see the Caravan Park become the subject of the subsequent TPO, as in fact happened.

In these circumstances, the competing positions of the parties were broadly as follows:-

Much of the argument centred on various postulated examples. One such example assumed that the Caravan Park had originally accommodated 10 caravans between the trees, but that it would have been necessary to fell trees protected by the TPO in order to accommodate just one further caravan. On that basis, the question was whether it could be said that such felling was “immediately required for the purpose of carrying out” the continued use of the Caravan Park as a caravan site. The Appellants’ best point was, in effect, that, since it was accepted that the Planning Permission did not restrict the number of caravans, the felling was “immediately required” for them to use the Caravan Park as a caravan site in the manner they lawfully wanted to do.

Ultimately, I have concluded that this argument is flawed for two main reasons.

First, planning permissions are not personal, so when the TPO condition refers to what is “immediately required for the purpose of carrying out” the development authorised by the Planning Permission it is not referring to any individual’s particular personal or commercial preferences, but to what is objectively required so that the development authorised by the Planning Permission can be seen to have been carried out. Here that development was, as I have said, the continuation of the use of the Caravan Park as a caravan site. No particular number of caravans was required on the site, immediately or otherwise, for that purpose to be objectively carried out. In fact, there were 10 caravans already on the Caravan Park in 1983, so continuation of the use of the Caravan Park as a caravan site was objectively satisfied without more being sited.

The second reason is that I accept Mr Ground’s submission that the planning and TPO regimes must be seen as complementary so that they work together. It is true, as the Appellants submitted, that the Council could have inserted conditions in the Planning permission either restricting the number of caravans or restricting the felling of trees, but that is not the point. The Planning Permission was granted in expectation of the subsequent TPO, and trees could only be felled according to the strict terms of that TPO. As the judge and Lindblom LJ have pointed out, if the felling was specifically required in order to carry out a particular operational development, such as the building of a house in a specified location where protected trees were standing, the planning permission would certainly take precedence so that felling would be “immediately required” to carry out the authorised development. But that is not this situation. Here, the authorised development is only the continuation of use of the Caravan Park as a caravan site, and that can objectively be carried out without bringing any more caravans on to the site, and certainly without felling trees so as to do so. The TPO would not be working together with the Planning Permission if the Appellants could simply override it (the TPO) so as to fell protected trees in order to site more and more caravans on the land.

None of what I have said affects the “unrestricted” nature of the Planning Permission on which the Appellants placed so much emphasis. The Planning Permission was unrestricted, but trees could not be cut down in contravention of the TPO just to increase the number of caravans.

I would also mention that what I have said also has no bearing on the lawfulness or otherwise of the concrete pitches on the Caravan Park on which the existing 33 caravans are sited. This aspect of the case was irrelevant to what we had to decide.

In these circumstances, I do not think that the Appellants had any basis to ask the court to release them from the undertakings that they freely gave the court on 9^th June 2008. I accept, however, that had they been able to show that they gave the undertakings on the basis of a mistaken apprehension of the proper meaning of the Planning Permission and the TPO, they would at least have had a proper basis for asking the court to consider whether or not they should be released for the future from their undertaking. Since we have determined the meaning of these documents as we have, there is no need for us to consider whether or not, on the facts, a release would in fact have been an appropriate course.

I too would dismiss this appeal.