Evans v First Secretary of State & Anor

JUDGE RICH: This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of the first defendant's inspector dated 2nd April 2003. By that decision she dismissed an appeal against the second defendant's decision refusing application for development which was described as "use of the land for the sale and display of retail A1 goods until 30/9/2007". In fact, as was agreed at the hearing, the appeal site was already being used for the sale of garden goods, including sheds, statues and the like, and so the appeal was treated as being against a refusal of an application for the retention of that use for the period stated.

Mr Evans, who has appeared in person, has in his claim form adumbrated what Mr Strachan, for the first defendant, had analysed as eight separate grounds of appeal. Before me he has, if I may say so very sensibly, limited his submissions to his two best points. He told me in so doing that they were both concerned with the extent of the powers of the first defendant's inspector, but, on analysis, the first of his points was concerned with a matter of powers but the second was concerned with requirements, namely the adequacy of the inspector's reasons.

The first point concerns the way in which the inspector dealt with the issue which she herself identified, namely the effect of the proposed development on the protected trees on the site. The protected trees were protected for the most part under a Tree Preservation Order made in 1991, which was an area order; that is to say, it did not identify separately each tree the subject matter of the order. Orders of that kind have the disadvantage, certainly with the passage of time, that it becomes harder and harder to identify whether any tree within the area affected by the Order was a tree in existence at the time of the making of the Order and therefore, properly speaking, a protected tree within the Order. Part of the appeal site was covered also by a woodland Order made in 1996. Mr Evans' complaints do not relate to the effect of that Order.

For the reasons which I have to a small extent at least already identified, as to the potential in effectiveness growing with the passage of time of an area Tree Preservation Order, the Secretary of State has advised that the area classification should only be used in an emergency and then only as a temporary measure until the trees in the area can be assessed properly and reclassified. Local planning authorities are encouraged to re-survey existing Tree Preservation Orders, which include the area classifications, with a view to replacing them with individual or group classifications where appropriate. Such advice was issued in the year 2000 and, Mr Evans tells me, repeats similar advice that had preceded it.

The second defendant had not, since 1991, reviewed this Tree Preservation Order or followed that advice. Mr Evans is apparently aggrieved about that, but he has not, so far as I can understand, made any representations direct to the local planning authority inviting them to follow that advice or to revoke the Order. His concern is as to the reference that the inspector made to the Order in the course of her decision. She dealt with it in paragraphs 21 and 22 of her decision letter. I shall read those paragraphs:

It is apparent from paragraph 22 and its concluding sentences that it is not dependent upon the making of the Tree Preservation Order, albeit that Order was clearly treated by the inspector as a material consideration, because it is an order which could only be made if it appeared to the local planning authority to be in the interests of amenity to make provision for the preservation of the trees the subject of the Order. It is an order in respect of which at the time of its being made, I understand from Mr Evans, he made representations against the making of the Order. The local planning authority concluded that making it was desirable in the interests of amenity. That established a protection which meant that it would be an offence to chop down trees except in certain exceptional circumstances, one of which would be if it was necessary in order to carry out a planning permission, but that is not, in my judgment, to be thought to arise in this case because the application was for the retention of a use which had already been started, and no suggestion was made that the removal of trees would be necessary for that purpose.

For that reason the inspector, in my judgment rightly, addressed her mind to the potential adverse impact upon the trees from the use. If they were to die then again permission for then cutting down would not be required under the Tree Preservation Order. That is what I understand her to be saying when she says "the absence of a recent review does not, to my mind, diminish the protection afforded by the TPOs". More importantly, she observed that it did not diminish the harmful effect the proposed use would have on tree cover, and that was the appropriate consideration for her to address in considering whether or not, by reference to this consideration, planning permission should be granted. I see nothing in this passage in the decision letter which indicates that the inspector departed from her powers in dealing with this planning application.

Mr Evans' true complaint is against the local planning authority's failure to follow the advice of the Secretary of State to which she had proper regard in considering the weight to be attached to the existence of the Tree Preservation Orders. It is not, I think, the business of this court on this application to comment on any failure of the local planning authority in regard to its reconsideration of the order which it made in 1991.

The second ground which Mr Evans has sought to bring before the court can, I hope, fairly be expressed in this way. A considerable part of the time available at the hearing was directed to the agreement of the wording of conditions which the Council would wish to have imposed in the event of planning permission being granted. The draft conditions as brought to the hearing by the Council were rewritten in two respects. One required a landscaping scheme, and a landscaping management plan in order to preserve the long term health of the trees referred to in such scheme. It was agreed in negotiation between Mr Evans and the local planning authority that it should apply only to the area the subject of the Tree Preservation Orders. The second proposed condition concerned the investigation of archaeological remains which might be found on the site. That was rewritten in order to make clear that it should apply from the date of granting permission rather than from the date of commencement of the development, which had taken place prior to the application.

The inspector in her decision letter made no reference to these proposed conditions. Mr Evans, as I understand his submission, says that in so doing she gave inadequate reasons for her decision, which particularly did not tell him what would be acceptable on the site or what conditions could be imposed to enable development as proposed to be acceptable.

He referred me to a decision of Collins J in Bloor v Secretary of State for the Environment on 29th June 2001, where an inspector confronted with arguments on behalf of the local planning authority that housing development on the site should be more restricted than had been proposed, and on behalf of local objectors that no housing development should be allowed at all, had failed to make clear whether or not he regarded housing in principle as appropriate or whether he accepted the submission that none was appropriate at all.

That appears to me to be a very different kind of decision from that which was made by this inspector in this case. She identified two main issues which arose in this case: one, the effect of the proposed development on the character and appearance of the surrounding area including a listed building, and the second the effect of the proposed development on the protected trees. So far as the first issue goes, she concluded that the continued use of the appeal site for the sale and display of retail A1 goods, even for the limited period proposed, would be harmful to the character and appearance of the surrounding area and to the setting of the listed mill. She also concluded in the way in which I have identified that the continued use was at least potentially damaging to the tree cover. It was not, in my judgment, necessary for her, having reached those conclusions, to deal with the proposed conditions which were directed to mitigating the adverse effects which she thought were sufficient to justify the refusal. Had Mr Evans submitted to the inspector that the conditions agreed with the local planning authority, even in their inchoate form, would be sufficient to overcome those objections, then it would indeed have been incumbent on her to explain why she disagreed. But he made no such submission, as he accepts; nor did the planning authority put the conditions forward as overcoming the objections which they had raised and which the inspector upheld. They merely put them forward, as they said, as conditions the Council would wish to have imposed in the event of planning permission being granted.

Mr Evans, I hope I am not disrespectful if I put it this way, if he was honest with himself, would have no difficulty in knowing what it is that the inspector decided as to the acceptability of this development on this site. She regarded it as unacceptable for the reasons which she very clearly gave. For the reasons which I have attempted to explain, it was not incumbent on her to explain why conditions, which at their best might mitigate those ill effects, did not overcome them. She concluded that the adverse effects were sufficient of themselves to justify refusal, and she therefore refused permission.

For those reasons, I see no error of law or failure to fulfil the requirements within the making of this decision which would entitle this court to intervene, and I must dismiss Mr Evans' application.

MR STRACHAN: My Lord, I am grateful. I would ask for an order therefore that this application be dismissed.

JUDGE RICH: Application dismissed.

MR STRACHAN: My Lord, I would also ask for an order that the claimant pay the first defendant's costs. My Lord, there is a costs schedule which was sent to Mr Evans. I know he has received it. I am not sure if your Lordship --

JUDGE RICH: Yes, I have it.

MR STRACHAN: I am grateful.

JUDGE RICH: Total amount £4,920.

MR STRACHAN: My Lord, I am just going to amend that down because, in light of Mr Evans taking only two points today, the case has been shorter than originally predicted, and so we have deducted for our attendance at hearing approximately two and a half hours. My Lord, the reduction of attendance at hearing, on the second page, from five hours to two and a half hours, which is a reduction of £375, that is attendance by my instructing solicitor. As regards my own attendance, since I am instructed on hourly rates, my Lord, that means that my fee for hearing comes down by £200. So the total bill will be £4,345.

JUDGE RICH: Mr Evans, first of all, as a matter of principle, can you say why you should not have the costs awarded against you?

THE CLAIMANT: I do not.

JUDGE RICH: Your economy has apparently been rewarded. Have you anything to say about the sums?

THE CLAIMANT: No, there is no problem with that, my Lord. I do have one request.

JUDGE RICH: Yes.

THE CLAIMANT: If we are happy that --

JUDGE RICH: I will say the Secretary of State should have his costs assessed at £4,345.

THE CLAIMANT: I agree, yes.

JUDGE RICH: Now, you have something else?

THE CLAIMANT: I would like your permission because I believe this is such an important issue for me to appeal.

JUDGE RICH: I have jurisdiction to grant it?

MR STRACHAN: Yes, my Lord, on section 288, yes, as opposed to a 289.

JUDGE RICH: I am afraid I would refuse it because I fear that your grounds seems to me clearly mistaken, and no reasonable prospect of success. I suspect you know the form rather well, Mr Evans. I have completed the form, of which you may take a copy, indicating my reasons.

THE CLAIMANT: This is only my second appearance here, my Lord, so I am not used to it at all.

JUDGE RICH: You have certainly conducted your case, if I may say so, as if you were well established.

THE CLAIMANT: I wish I were, hearing those rates.