Brennon, R (on the application of) v Bromsgrove District Council

MR JUSTICE RICHARDS: This is an application under Section 288 of the Town and Country Planning Act 1990 challenging a tree preservation order confirmed by Bromsgrove District Council on 10 June 2002. The claimant alleges that the order is defective through failure to comply with the relevant regulations in various respects and by reason of an alleged abuse of power on the part of the council. He also contends that it was made in breach of his Convention rights.

The claimant owns a property at 16 Rock Hill, Bromsgrove Worcestershire. He has been in dispute with the council for some time about the trees on his land. On 16 April 2001 he made an application for planning permission in respect of the land. The proposed development was the demolition of the existing building and the construction of six maisonettes.

At the time of the application the part of the garden fronting Rock Hill contained a considerable number of trees and bushes. In early June some of the trees on the site came down. The exact circumstances need not concern me but evidence given in other proceedings by Mr Steven Jones, a tree officer in the council's planning department, was that the claimant was very angry that officers had recommended refusal of the planning application and had stated that he intended to fell all the trees on the site. A tree preservation order was then prepared and made, as a matter of urgency. This was the District Council of Bromsgrove Tree Preservation Order (No 6) 2001 made on 11 June 2001 with provisional effect, and subsequently confirmed by the council on 4 September 2001 following receipt of representations on behalf of the claimant. The reasons for making that order were given as follows:

In the order the trees protected were specified by reference to an area which encompassed a substantial part of the garden at 16 Rock Hill. The council's evidence is that an order specifying trees by reference to an area, rather than individually or by groups, was made because of the urgency. Government guidance issued to local planning authorities states that orders based on an area classification should be used only in emergencies and as a temporary measure so trees can be assessed properly and re-classified (see Tree Preservation Orders, a Guide to the Law and Good Practice, March 2000, paragraphs 317 and 318).

What happened next was that the claimant brought proceedings to challenge the order in the High Court (No CO/2866/2001). Before that challenge was resolved however the council made a second order - the District Council of Bromsgrove Tree Preservation Order (No 2) 2002 - which replaced the first order. This second order was made on 12 April 2002 with provisional effect. It was confirmed in the same terms on 10 June 2002; that is the order now under challenge. The challenge to the first order was withdrawn by consent on 16 April 2002 upon the first order being superseded by a second order.

The reasons given for the second order were "that the trees provide special amenity value" and the order was expressed as being made "in the interests of amenity". In the new order the trees protected were specified individually or by group. The details were given in schedule 1 and a map annexed to the order. Two ash trees were specified individually; they were referred to as T1 and T2 in the schedule and on the map. National Grid references were given for each. The group of trees, described as "18 self-set Ash multi-stem and single-stem," was referred to as G1 on the schedule and on the map. A National Grid reference was again given.

Along with the provisional order the claimant was given details of how to make representations. No representations were made within the time laid down. The order was therefore confirmed by the council on 10 June in the absence of any objection or representation. Notice of confirmation was sent to the claimant, dated 11 June 2002. Notice was also sent, presumably on a precautionary basis, to "the owner and occupier" of the land. On 22 July, well over a month after the order had been confirmed, the claimant's solicitors wrote to ask whether the council -

The claimant then brought the present proceedings challenging the second order.

Before I come to examine the issues in the proceedings I should go back in time to mention certain other events. In September 2001 it was discovered that some trees covered by the first order had been cut down. In May 2002 it was discovered that further work of cutting or trimming trees was being done on the site, allegedly in breach of the second order. On 24 May 2002 the council obtained an injunction without notice from Redditch County Court forbidding the claimant from undertaking any work on trees on land at 16 Rock Hill. On 12 July this was replaced by an undertaking by the claimant to abide by the terms of the second order, that is to say (No 2) of 2002, in that he would not cut down, top, lop, uproot or wilfully damage or wilfully destroy any trees specified in the first schedule and shown on the map annexed to the order.

The events of December 2001 and May 2002 have also led the council to commence criminal proceedings against the claimant for breach of the orders. Those proceedings stand adjourned pending the outcome of the present application.

The claimant's planning application has also taken its course. Permission was refused by the council on 6 August 2001. The claimant appealed to the Secretary of State. The appeal was dismissed by an inspector in a decision dated 14 June 2002. In his decision the inspector referred by way of background to the disputes over the tree preservation orders, noting the council's evidence that although the second order referred to a group of 18 ash trees further felling had reduced the number in that group to 11. The decision also recorded the claimant's argument that the second order had not been the subject of a survey or measurement and that the two ash trees individually identified were wrongly positioned. As to that, the inspector observed:

The detriment that would arise from the loss of some of the trees protected by the order forms part, although not a major part, of the inspector's reasons for concluding that the development would cause unacceptable visual harm and that planning permission should be refused.

The other fact or matter I should mention is that the claimant has filed evidence about the condition of various of the trees, including evidence that T1 was in danger of falling and causing damage and that both T1 and T2 were causing damage to adjacent retaining walls. There is also evidence that T2 was blown over in high winds in October or November 2002. The council takes issue with the evidence concerning the condition of the trees. It is the council's case that T2 fell over because of inappropriate work undertaken in breach of the tree preservation order in that the earth bank on which the tree was growing was excavated and damage was caused to the roots. I am not called upon to resolve these factual issues, which it is accepted would be an inappropriate exercise in a statutory challenge of this kind. So much for the factual background to the present application.

As to the statutory framework, Section 198 of the 1990 Act provides for the making of tree preservation orders:

Section 199 (1) provides:

The relevant regulations are the Town and Country Planning (Trees) Regulations 1999. Regulation 2 provides:

Regulation 3 is concerned with the procedure after making an order. It provides:

The first main submission advanced by Mr de Mello, on behalf of the claimant, is that the council was in breach of the procedural requirements by failing to serve a copy of the order as confirmed together with the schedule and map. The provisional order was accompanied by both a schedule and a map, but all that was served on the claimant after confirmation of the order was a notice of confirmation. Section 119 (3) (c) provides that regulations may make provision for copies of the order to be served after confirmation. The submission is that the notification required by Regulation 6 includes service of the order and since the schedule and map are part of the order they must be served with it. This provides certainty and is of considerable importance where, as here, the claimant is facing prosecution for breach of the order.

In my judgment, it is clear that Regulation 6 requires service of a copy of an order after confirmation only where the order has been confirmed with modifications. This is dealt with in terms in Regulation 6 (b) which I have read. There is no requirement to serve a further copy of the order when there has been confirmation without modification. In that situation interested parties would already have received copies of the provisional order and all that is needed is service on them of a notice that the provisional order has been confirmed. That is what is required by Regulation 6 (a). Such persons are left in no uncertainty or doubt as to the contents of the order as confirmed. They do not need a further copy of what they already have. So, I reject the first submission.

The claimant's second submission is that there was a failure to comply with a requirement in Regulation 5 (3) as to endorsement of the order following confirmation. The body of the order was, it is accepted, duly endorsed, the language used being -

For my part, I do not accept that there has been any failure to comply with Regulation 5. The confirmation is duly endorsed on the body of the order as I have indicated. The schedule is referred to in the body of the order and forms part of the order. The map is referred to in turn in the schedule and also, by Regulation 2 (2), forms part of the order. There is no requirement in Regulation 5 (3) for them to be separately endorsed.

In my judgment, it is sufficient there be an endorsement of the order of which they form part, and such an endorsement was duly made. It is not suggested that there is any doubt whatsoever as to what schedule is referred to in the order so endorsed or as to what map is referred to in the schedule.

If I were wrong in relation to either of the first two points I have considered, an additional hurdle to be overcome by the claimant would be the need to show that he was substantially prejudiced by the failure to comply with such procedural requirements. No prejudice has been shown. Mr de Mello referred to a lack of clarity as to the position of the trees and to the fact that the claimant faces prosecution for breach, but the points I have considered do not touch on either of those matters. Accordingly the conditions for a successful challenge under Section 288 of the 1990 Act would not be met even if there had been a technical defect in compliance with the relevant requirements.

I move to the third submission which is that there was a breach of duty to give reasons for the making of the order. The duty to give reasons is explicit (see Regulation 3 (2) (a)). It is not enough, submits Mr de Mello, to recite the language of the statute. More detailed reasons should be given and they should differentiate between the position of each individual tree and of the group of trees. The statement of reasons was insufficient and does not enable the claimant to know whether the right matters have been taken into account. As I have already mentioned, the reasons for the order were stated in the notice accompanying the provisional order. I shall repeat what was said:

It is important to bear in mind that if any question arises as to consent to cut any of the trees a refusal can be pursued on appeal before an inspector and a fuller reasoned decision will be made. I do not think that the statutory context is such as to impose a requirement for detailed reasons at this threshold stage of deciding whether to make an order in the first place.

The next complaint is that the location and number of the trees have not been specified accurately or at all on the map. The individual trees - T1 and T2 - are said to be shown at locations where there are no trees, though there are trees within 1 to 2.5 metres of those locations. The number of ash trees in the group is said to be wrongly stated as 18, the true number being lower. It is said that there has been a failure to show the location of each of those trees on the map. I regard all those points as being without substance. It is not suggested that the claimant is in any doubt as to which trees on his land are covered by the order. I have referred already to the inspector's report which sets out the claimant's concession and the inspector's own view on the subject.

In The Queen on the application of Robinson v Secretary of State for the Environment Transport and the Regions [2002] EWAC.Admin 63, at paragraph 29, Mr Justice Sullivan said this about tree preservation orders:

In the Court of Appeal in the same case - at [2002] EWCA.Civ 1660 - Lord Justice Scott Baker observed:

So too in the present case. If there are any inaccuracies in relation to the plan they are not material. Sufficient has been said and done to identify the trees concerned, sufficient to meet the objective of Regulation 2.

Mr de Mello then advanced an argument under the heading "abuse of power" which, in substance, seems to be little more than an irrationality challenge. He says that the first order - (No 6) of 2001 - made no mention that the trees, T1 and T2, were of individual merit and said that the trees on the site were "individually ... generally insignificant." There was nothing classified either individually or as a group. The provisional order was confirmed on the same basis. Yet what has been done in the order now under challenge is different in kind to the original approach and contrary to that approach. It is not open to the council, having decided on one approach in 2001, to turn around and, in 2002, to classify trees individually or by a group. It is irrational for the council to have done so. At the very least an explanation of why it did so was called for.

In my judgment, that too is a submission without substance. The council's evidence is that the first order was made as a matter of urgency by reference to an area and without carrying out a detailed assessment. Whether it was justified in adopting that course is neither here nor there. The challenge to the first order was withdrawn a long time ago. The council was entitled to adopt a different approach in relation to the second order and, having carried out the assessment, to identify trees individually or by reference to a group as it saw fit. There was no abuse of power of any kind in the course adopted. Whether it was appropriate to identify trees individually or by reference to a group is a matter to be determined not on the basis of an earlier order made in the circumstances of urgency but on the basis of the evidence before the decision-maker at the time the decision was taken. On the evidence before the council at the time of its decision to make the second order it was fully entitled to reach the conclusion it did. There was no irrationality or other error of the kind contended for by Mr de Mello.

The claimant's next arguments are based on the European Convention on Human Rights. First, it was said that the order interfered with the claimant's right to peaceful enjoyment of his property, under Article 1 of Protocol 1, and with his right to respect to his home under Article 8. That interference was excessive and disproportionate, in particular because of the failure properly to investigate the condition of the trees, T1 and T2, which the claimant alleges would have been dangerous and likely to cause damage if they fell. The making of the order exposed the claimant to inconvenience, expense and hardship because he had to go through a consent procedure in order to cut them down if they are dangerous as he contends. Mr de Mello in his submissions relied on Sporrong and Lonnroth v Sweden 1982 5 EHRR 35, James v The United Kingdom 1986 8 EHRR 123 and Hatton v The United Kingdom, judgment of the Strasbourg Court dated 2 October 2001.

So far as concerns Article 1 of Protocol 1, the short answer, in my view, is that the statutory regime concerning tree preservation orders represents a fair balance between the general interest of the community and the requirements of the protection of the individual's rights, to use the language of the court in James v The United Kingdom at paragraph 50. An order may be made only where it is needed in the interests of amenity to do so. There are elaborate procedural safeguards, including the right to make representations before an order is made and the right to seek consent under the order and to appeal to an inspector against any refusal to give such consent. One sees in all of this a striking of the balance by the legislature, and one does not need to accord a wide margin of discretion to the legislature in order to reach the conclusion that the balance has been struck appropriately. Exactly the same considerations apply to justification of interference under Article 8.

I see nothing in the circumstances of the particular case that could justify the conclusion that this order - made as it is under a legislative scheme which is itself clearly Convention compliant - has particular features which cause it to violate the claimant's rights whether under Article 1 of Protocol 1 or Article 8.

I should add that it is not for this court to assess the competing evidence as to whether the trees were dangerous or liable to damage property, issues which were ventilated in the challenge to the first order and the evidence on which, together with additional evidence, were included in the papers before the court in this challenge. Although Mr de Mello submits that an obligation lay on the council to make sufficient investigation before it made an order interfering with the claimant's rights, I am satisfied that the council had ample material upon which to form a judgment as to the appropriateness of making an order. The fact that the claimant chose not to make any representations in relation to the order now under challenge makes it impossible for him to contend that the council should have done more than it did.

I also bear in mind the words of Lord Justice Scott Baker in Robinson at paragraph 24 where he said:

The final submission made on behalf of the claimant is another Convention argument, this time under Article 6. Mr de Mello submits that the council's planning committee which confirmed the order was not an independent and impartial tribunal under Article 6, and review by the court under Section 288 of the 1990 Act is not sufficient to ensure compliance with Article 6. He referred to The Queen on the application of Alconbury Developments Ltd and Others v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23, [2001] 2 WLR 1389, for the general proposition that Article 6 applies to this kind of proceeding. He accepted - in the light of Alconbury and the decision of the Strasbourg Court in Holdings & Barnes Plc v The United Kingdom (Decision on Admissibility in Application No 2352/02) - that a Section 78 appeal from a refusal of consent under a tree preservation order is Article 6 compliant, but he submits that the absence of corresponding procedures at the stage when the order is first made renders that initial stage in breach of Article 6.

Concerns about independence and impartiality are said to be all the more important where the committee was the same committee as had made the first order and had been involved in the lengthy dispute with the claimant. There were significant areas of factual dispute, for example, about the location and safety of trees. In that respect Mr de Mello took the issues concerning trees T1 and T2 as his focal point for the Article 6 argument, but said that the argument also extended to the order as a whole. As to the significance of factual disputes, he referred to a passage in The Queen on the application of Friends Provident Life Office v Secretary of State for the Environment Transport and the Regions [2001] EWHC Admin 820, [2002] 1 WLR 1450 at paragraphs 89 to 95. He submitted that the decision of the House of Lords in Begum v London Borough of Tower Hamlets [2003] UKHL 5 - in which a local authority's decision making procedures under Part 7 of the Housing Act 1986, coupled with a review by the court, were held to be compatible with Article 6 despite the fact that the local authority had to resolve disputed issues of fact - was distinguishable because the underlying issue in that case was not the engagement of human rights whereas in this case the claimant's rights under Article 1 of Protocol 1 and Article 8 are in play.

The Article 6 argument has not been developed at any great length before me and I intend to deal with it summarily. The first obstacle facing the claimant is that he made no representations at all in this case. It was only several weeks after the order had been confirmed that he sought an opportunity to make any representations out of time. There was simply no factual dispute for the council to resolve. Insofar as the council had to make findings of fact for itself, they were merely as "staging posts" (see per Lord Bingham in Begum paragraph 9 (2)) to the broader judgment that the council had to make. The essential requirement was to form a value judgment as to whether it was expedient in the interests of amenity to make an order under Section 198. Moreover I have referred already to the procedural safeguards that exist, both at the stage of deciding whether an order should be made and as regards the right of appeal under Section 78 in respect of any refusal of consent to do acts prohibited by the order once made. In line with all that was said by the House of Lords in Alconbury, I am satisfied that the availability of review by this court under section 288 is sufficient to ensure compliance with Article 6 in the present statutory context. The approach of the House of Lords in Begum reinforces me in that conclusion, in that it makes clear that the existence of some element of fact finding by the administrative decision maker is not fatal to compliance with Article 6. For all those reasons, though briefly stated, I reject the submissions made in relation to Article 6.

I have taken the view that the arguments merit ex tempore disposal rather than a more detailed analysis in a reserved judgment. For the reasons I have given all the submissions made on behalf of the claimant are rejected and the claim is dismissed.

MR GREAVES: My Lord, my application is for costs.

MR JUSTICE RICHARDS: You cannot resist the application for costs, can you?

MR de MELLO: No.

MR JUSTICE RICHARDS: Is there any schedule?

MR GREAVES: There is no schedule.

MR JUSTICE RICHARDS: In that case there will be an order that the claimant pays the defendant's costs to be subject to detailed assessment if not agreed. There are no other matters for me to deal with?