Fowler, R (on the application of) v London Borough of Ealing

MR JUSTICE COLLINS: This is an appeal under section 288 of the Town and Country Planning Act by Dr Fowler, who seeks to impugn the decision of the London Borough of Ealing to confirm a tree preservation order, the confirmation being made on 19th August 2003. The order related to nine specified trees at 134 Church Road, Hanwell.

134 Church Road is a Grade II listed building with a substantial garden attached to it. It has, unfortunately, been somewhat neglected, particularly during the last 20 years or so. I should say that that is nothing to do with Dr Fowler and his wife; it is part of the history of the house. He is anxious to restore the building, which has become somewhat run down, and he has discovered that the costs of restoring it properly are likely to be substantial. I have been given a figure of something in the order of £650,000. One of the possible ways of achieving the funding for the restoration would be to sell off, or to use part of what is now the garden as a site for a development.

The tree preservation order has an adverse effect upon whatever application for development permission is to be made and, to a degree, it is concerns about that that lie behind the appeal to seek to quash the order that has been made. I should say, of course, that the existence of a tree preservation order is not of itself a bar to the obtaining of planning permission because if planning permission is obtained and that permission requires the removal, or the possible damage to a tree which is covered by a tree preservation order, then the existence of the order will not prevent the carrying out of the permission. On the other hand, in deciding whether permission should be granted, the existence of a tree preservation order is obviously a material factor to be taken into account in reaching the relevant decision.

The part of the neglect of the premises has involved an equal neglect of the garden and this has meant that trees have grown up where perhaps they might otherwise not have done, or if they had begun to grow, would have been pruned or kept to a particular level so that they would not have been, perhaps, recognised as trees that required to be preserved. However, there were some trees which obviously had been there for a substantial period of time.

Of the nine trees, the appeal relates, effectively, to three. It is subject to an argument with which I will deal, alleging misfeasance in relation to the making of the order. It is accepted that in respect of six of the nine trees it would be not possible to quarrel with the making of the order in the sense that it would not be possible to establish any error of law which would enable me to interfere. The three trees, or alleged trees, which are in issue are, first of all, a chestnut which it was said was diseased, and diseased to such an extent that it was necessary that it be removed because it was dangerous. Indeed, once the order had been made, application was made to remove it. That application was rejected by the Council, the Council taking the view that the tree could be preserved by pollarding and had a substantial life span left in it.

The appellant appealed to the Secretary of State, as he was entitled to do, against the refusal of the Council and the Secretary of State Inspector found in his favour, and so far as the reasoning is concerned, rejected the Council's approach. Accordingly, that tree has now been removed, although because it was the subject of a tree preservation order there is a requirement to plant another to take its place in due course.

The argument in relation to that tree is that it should not have been made the subject of the order at all because there was no power to do so under section 198 of the Act. Section 198 is headed, "Tree Preservation Orders":

What may be provided for in such an order is covered in subsections (3) and (4).

Then subsection (5) provides that:

Then subsection (6), which is important, reads:

The submission made by Dr Fowler is that subsection 6 shows that if a tree is dangerous, then it is irrational and wrong to make a preservation order in respect of it. Clearly, and I will accept, and indeed Mr Palmer does not argue to the contrary, that if a tree is dead, and obviously dead, then it would not be appropriate to make an order in respect of it. If it is diseased, and obviously diseased, so that it has no sensible life span, or is obviously likely to be dangerous, then it may be that it could be argued that it is not appropriate to make an order in respect of it. However, one must bear in mind that one of the purposes behind a tree preservation order is to ensure that if a tree has to be removed there should be a replacement, if that is possible. So the mere fact that a tree is diseased may not mean that it is inappropriate to make an order in respect of it.

However, I do not need to decide that specific issue because the submission made by Mr Palmer is that in this case the Council took the view, wrong as it turned out, but a view they were entitled to take, in the sense that it was a rational view, that this was a tree which had life in it, sufficient life to enable it properly to be the subject of a tree preservation order. In those circumstances, it seems to me that it is not necessary for a council to consider, in any depth at all, whether a tree is or is not likely to have a reasonable life. Provided there is material from which they can reasonably take that view, even if there is material going the other way, then it is possible to make the order. The protection for the landowner is, of course, the ability to apply for consent to remove the tree if it is dangerous and, indeed, it is, strictly speaking, not necessary for consent to be obtained because of subsection 6, although it would be obviously a foolish man who went ahead without seeking consent because he might find himself liable to some sort of prosecution. Accordingly, in my judgment, there was no error of law, no prohibition as a matter of law, which prevented the chestnut being included in the order. Now it has gone, in any event I would have taken a great deal of persuasion that any error including it was such as now would justify the quashing of the whole tree preservation order. It would be a futile exercise in any event because the Council could, and no doubt would, immediately impose another order.

Secondly, there are two arbutus and it is said that those arbutus are not trees, they are shrubs. There is no definition of "tree" in the Act, but authority shows that it should be given its ordinary meaning as a matter of English. The question, therefore, is, is arbutus to be regarded as a tree? The English for arbutus is "strawberry tree", but that perhaps is not and should not be determinative. Dr Fowler relies upon a report from an arboriculturalist which he obtained in connection with his attempts to challenge the tree preservation order. The first report did not identify the arbutus. The reason for that in a subsequent report was said to be that the person responsible for the report had, unfortunately, not appreciated, for whatever reason, that the arbutus existed, in the sense that what was said was this:

T7 and T8 within the tree preservation order are the two arbutus in question.

Unfortunately, the author of the report says nothing more about them, and they are not included and he did not amend the survey to include them as trees. On the other hand, he does not say that in his view they are not trees, and since he knew he was issuing a report for the purpose of challenging the tree preservation order, I would have expected him to have stated, if that were his view, that they were not trees. What he does say is that the original survey did not include the trees identified as T7 and T8. That is consistent, certainly, with his having the view that they are indeed trees. I have seen the photographs. They are certainly, as it seems to me, possible candidates for the description of them as trees. It seems to me that I cannot possibly say that the Council erred in law in regarding them as trees. What as a matter of law is a tree and what is not a tree is not easy to define because obviously there can be arguments as to whether something is a shrub or something is a tree. Dr Fowler referred to a hedge and made the point that what is in a hedge may, if growing on its own, be regarded as a tree. I suppose a hazel is a good example of that because it is often found in hedges, but it should not be regarded as a tree if it is part of a hedgerow. That shows that same growth, if I can put it that way, can sometimes be a tree and sometimes not be a tree. Equally, perhaps, for example, a rhododendron, should that be regarded as a tree? I suspect probably not because it is more of a shrub than a tree. What about an arbutus? It has some characteristics, perhaps, of a shrub; equally, some of a tree. It has, on the face of it, what could be regarded as a trunk, albeit perhaps somewhat attenuated, and it is, for what it is worth, called in English "a strawberry tree", as I have said.

The point I am making is that I cannot see that it can be regarded as irrational for the Council to regard it as a tree, and I do not think I can say, as a matter of law, positively, it is not a tree, and in those circumstances I cannot find that there is any error of law in those arbutus being included as trees within the tree preservation order.

That leads me to the final point made, misfeasance. As I indicated in the course of argument, that is a very high hurdle to surmount. I can well understand that, sadly, relations between the appellants and the Council have gone completely sour. It may well be that there has been a certain amount of delay, and perhaps matters have not been processed quite as well as they might have been on the part of the Council; certainly from the point of view of the appellants, that is the case.

The Council were, as I see it, entitled to form the view that they did. It was, in the view of the appellants, a misguided and wrong view. They are concerned that their attempts to put forward sensible proposals to enable the building to be restored, the Grade II listed building, which is clearly a matter that is desirable, have been frustrated by the existence of the tree preservation order and the use that has been made of it.

There is a dangerous access to the site and an alternative access, which would be much safer and would be necessary if any development of the garden was to be carried out, will involve, possibly, the removal of at least one of the arbutus, and it is said that the possibility of damage to the roots of one or more of the other listed trees. That is being used, it is said, as a means of frustrating the development proposals, and concern is expressed because, it is said, that a council officer lives opposite and it may be that it is thought that there is some ulterior motive in the attitude adopted by the Council. But, as was very properly and fairly recognised, that is largely speculation and there really is not any sufficient evidence to support it. I was simply recording the concerns that were expressed. I am afraid I do not believe that they can conceivably amount to anything which enables me to say that the order should be quashed. Quite apart from anything else, they are allegations which are disputed and which would require, if they are to be pursued, a hearing of evidence and a positive finding one way or the other. This appeal is not the appropriate vehicle for dealing with that sort of concern. I am bound to say that while I understand the strength of feeling on the part of the appellants, it is really unlikely that they will be able to establish, and there really is not any positive evidence which enables the inference to be properly drawn as there being any misfeasance on the part of the officers. It is said that they have not told the truth in the teeth of the arboriculturalist's report. They are entitled to disagree with a report which is put forward. They have disagreed. In one case they have been found wrong to have disagreed, but the fact that they take a different view is not to be equated with misfeasance, nor is it to be equated with not telling the truth. Not being accurate is not the same as not telling the truth, and accordingly, I am afraid, in my judgment, for the reasons I have given, I am unable to give any relief to the appellants and this appeal must be dismissed.

MR PALMER: My Lord, I am grateful. I have an application from the London Borough of Ealing for costs.

MR JUSTICE COLLINS: Yes. Have you served --

MR PALMER: Yes, the costs were served yesterday.

MR JUSTICE COLLINS: Have I seen it? I do not think I have. The court may have it. I am not sure I have. Have you seen this? This is their costs schedule.

DR FOWLER: Yes, we have, my Lord.

MR JUSTICE COLLINS: You have seen it. Yes, I know what is in it and I am grateful for another copy.

MR PALMER: My Lord, may I make two minor amendments. Both of them are on the second page. The year of cause, 1998. It says 1997. My Lord, the certificate at the bottom, the costs aspect, do not to exceed the costs which, that should be "the Council". Subject to that, I have an application that the Council's costs are now met, as set out.

MR JUSTICE COLLINS: Dr Fowler, the usual rule is that costs follow the event. If you take legal proceedings and fail, then normally you have to pay the other side's costs. It is the way, I am afraid, the system usually operates, but of course I am willing to hear anything you wish to say in opposition to me awarding costs, first of all in principle, and secondly, we go into this in detail as to the amount. First of all, principle.

DR FOWLER: I cannot deny, my Lord, that we were aware of a risk of taking on this case.

MR JUSTICE COLLINS: It may seem hard, but I am afraid that that is the general rule. Obviously, there can be exceptions, but at the moment I cannot, unfortunately, think of any reason why the normal rule should not apply. It is a hazard of litigation. I am afraid it is an expensive business, or can be.

All right, then let us look at the amounts claimed. First of all, you are entitled, if you wish, to say that you would prefer to have a detailed assessment. What that would involve would be that the matter is put to a costs judge if reduction cannot be agreed. He will decide what are the appropriate amounts. There is a risk there too because if he decides that this is reasonable, he may add some costs on of having to apply to him, do you see? So obviously, if you challenge something and go before another tribunal, then that has its own risk of costs. I have the power to make a summary assessment which, of course, can involve a reduction, or I can be persuaded that this is an appropriate sum. It is not entirely straightforward for me because I am slightly out of touch with the appropriate figures. I have been on the Bench now for ten years, but I know what was involved in this from the point of view of the other side.

The £84 an hour is for London prices. If had it had been a private solicitor it actually would have been quite a low figure. I forget what the standard figure is for private practice. It is over £100, is it not?

MR PALMER: Yes.

MR JUSTICE COLLINS: Overall, though it seems quite a lot of money, £84 an hour, it is not unreasonable. On the other hand, I am not sure that the hours really are justified. Mr Palmer, Attendances on Claimant, nine hours. What is that?

MR PALMER: Can I take instructions, my Lord?

MR JUSTICE COLLINS: I am not sure, attendances on whom? (Pause).

DR FOWLER: I am sorry, my Lord, you asked me about attendance on clients --

MR JUSTICE COLLINS: I am asking Mr Palmer. I am inclined to think that this may be a bit on the high side. Let us see what he has to say first.

MR PALMER: My Lord, the paragraph on attendances on the claimant is correctly stated. That is attendances by those who instruct me on Dr and Mrs Fowler.

MR JUSTICE COLLINS: But 12 hours in all seems rather a lot.

MR PALMER: This is a matter which was issued in September 2003.

MR JUSTICE COLLINS: Yes, but I am not sure you can really properly claim for the negotiations. That I would not regard as part of the costs of this appeal.

MR PALMER: My Lord, the negotiations concerned with the settling of this application by consent could properly be. I do not go as far as to suggest that any negotiations that went as far as planning permission.

MR JUSTICE COLLINS: Everything is rather joined up together. I am afraid I would be reluctant to award you, and I do not think I will award you, the costs of negotiating, which brings the hours down substantially, I suspect.

MR PALMER: Yes, my Lord. On that basis, I am instructed that 1 can deduct six hours.

MR JUSTICE COLLINS: From the first? We have got work done on documents, 16 hours. Actually, more than that, 22 hours. That seems to be to be grossly excessive.

MR PALMER: My Lord, we have received a succession of bundles from the claimants.

MR JUSTICE COLLINS: But they are not very substantial.

MR PALMER: Each of which required work and the production of summary grounds.

MR JUSTICE COLLINS: But 22 hours? I think that is far too much.

MR PALMER: My Lord, it also includes the drafting of instructions to counsel and preparation of documents. My Lord, certainly we would submit at least ten hours of that is reasonable.

MR JUSTICE COLLINS: Site inspections. That includes travel, does it?

MR PALMER: Yes, my Lord, it does.

MR JUSTICE COLLINS: I think that may be reasonable.

MR PALMER: My Lord, the work on documents also includes the correspondence. (Pause). In fact, those instructing me have omitted to claim the VAT on counsel's fees.

MR JUSTICE COLLINS: I am not going to award the amount claimed. I think that the hours are unnecessarily lengthy, even if one takes out the negotiations. There is a degree, obviously, of rounding-up and a broad brush approach, there has to be in reaching this decision.

Dr Fowler, at the moment the figure I have in mind to consider as appropriate is £3,500, which reduces it by just over 2,000 from the claim they have made. Obviously, that effectively is something in the order of 12 hours allowed for work done by them, plus the attendance at court, plus the site inspection and counsel's fees which I think are reasonable.

DR FOWLER: Would that include VAT, my Lord?

MR JUSTICE COLLINS: That is everything. I do not think you will do better than that. I know it seems a lot of money.

DR FOWLER: It certainly seems a large improvement.

MR JUSTICE COLLINS: It is certainly better than £5,600. I may be being fairly generous -- in fact, I think I am being fairly generous.

DR FOWLER: I think you are, my Lord. I will accept before you change your mind!

MR JUSTICE COLLINS: £3,500. Appeal dismissed with costs of £3,500.

As I say, your way ahead, I think, is to put in a planning application. If you have got a good application, good luck to you.

DR FOWLER: Thank you.