Thompson v Pendle Borough Council

This is an application which has been brought by the claimant, Mr Brian Thompson, under section 288 of the Town and Country Planning Act by way of a challenge to a Tree Preservation Order made first by the defendant Council pursuant to its powers to make one provisionally on 3 December 2010 and then, in its varied form, pursuant to a later order made on 15 February 2011.

I will deal with the details of that challenge hereafter, but let me set out the background. First of all the statutory framework. Section 198 of the 1990 Act empowers a local planning authority to make provision for the preservation of trees where it appears expedient in the interests of amenity to do so. The making of any order pursuant to that power is known as a Tree Preservation Order. I will refer to it hereafter as a “TPO”. In particular it may provide for the prohibition of cutting down, topping, lopping, uprooting, damaging destroying trees except with the LPA’s consent, and it provides for consent to be given subject to conditions. Section 199 sets out the procedure and the facility for the making of regulations in relation to TPOs and regulations were subsequently made, the Town and Country Planning (Trees) Regulations of 1999. The TPO is not to take effect, according to section 199(1), until it has been confirmed by the local planning authority, which it may do so either with or without modifications. Regulations will deal with the form of TPOs and the procedure to be followed with the making and confirmation. The regulations may make provision for the position before confirmation to deal with the notification of the making of the order to “the owners and occupiers of land affected by the order”.

The regulations will also provide for objections and representations with respect to the order to be made, to be considered by the LPA before the order is confirmed. Section 201 then enables the local authority to make a provisional TPO to be given immediate effect if the authority so directs. It can do so if it appears to it that a proposed TPO should take effect immediately without previous confirmation. If so, the order will contain a direction that it is to take effect provisionally on such a date as is specified and will continue in force by virtue of this section until the expiration of six months or the date on which the order is confirmed.

The position here is that the TPO concerned a group of nine deciduous trees located in an area of grass immediately to the east of the carriageway, eastern footway, on Khyber Street in Colne within the area of the Borough Council of Pendle. The area within which the trees were situated can be seen from the plan at page 4 and the area G1. Their wider location can be seen at page 23 of the bundle.

I now turn to the personalities involved in this case. I should explain that today Mr Thompson appears in person, as he has done throughout, and he has presented his case with considerable skill and complete courtesy to the Court. He has been assisted by Mr Khashaba as a McKenzie friend and he has made proper suggestions to him and given him proper assistance during the course of this hearing. I have no doubt that, together with that assistance, Mr Thompson has addressed the court and enunciated his claim as clearly and comprehensively as he could have done. But now it is time to introduce the personalities. Mr Khashaba, who as I say, has appeared to assist Mr Thompson today, bought the property on about 2 December. He has and is director of companies which include a company called PLDS Co Ltd (which I shall simply refer to as “the company”) and although he is the landowner it appears that this company has taken or will take the land according to a lease to be granted by Mr Khashaba but which will in event be involved in a proposed development of that site for residential purposes.

On 3 December in the afternoon a resident contacted the local authority to say that there were people in the area of the grassland who were about to or had started to fell all the trees. This is where Mr Thompson comes in. He is someone who, up to that date, had on occasion received work from Mr Khashaba or his company and it was intended that he would be the person responsible for felling some or all of the trees and doing at least some of the work involved in their removal. He had done some work for the company before. He told me today, expanding a little on that, that he thought it was before 3 December possibly afterwards, that in order to allay the concerns of the residents he was instructed by the company to plant a palm tree and that he did. That does not feature in the TPO, unsurprisingly, because it was something being planted, not something which was being threatened with felling. He also says that he was asked by the company to put up a “Private – No Trespass” sign, which he did. Those are examples of the occasional labouring work which he would receive from the company.

The authority, on being told of what was going on, considered that it needed to act urgently and, following the relevant guidelines from the Department for Communities and Local Government, it decided whether it should make a Tree Preservation Order without visiting the site to undertake a full assessment - and decided that it should. There is no challenge – nor could there be – to that decision. It did so after being told that the trees were highly visible and were of an amenity value. So the provisional TPO was made. That is at page 33 of the bundle. The regulations allow for any TPO to identify the trees the subject of it in three different ways, either individually specified or by reference to an area or by reference to a group. In this case the reference was made to them by a group and what is said is that the trees were identified on map G1 (which one can see at page 34). Their location was given but the description was given as “various deciduous trees”.

It is accepted by Ms Stockley for the Council that, although made in a state of some urgency, in order to comply fully with regulation 2, the trees within the group, the number of trees concerned, should have been specified. That was the single respect in which regulation 2 was not complied with. Nonetheless, that TPO was made and issued on the third. On the same day a notice of the making of that order was issued. That is at page 46, and in accordance with the regulations one copy of that notice was fixed onto one of the trees on the land in question, which explained it would remain in force for six months or until confirmed by the Council. It set out that any objections should be made by 31 December. It was also sent to the land owner, who was Mr Khashaba, which was also in compliance with the 1999 directions. The only objection that could be taken to that notice concerns its failure to refer to regulation 4, and I will come back to that in due course.

It is plain that, whether one talks about Mr Khashaba or Mr Thompson, there was no doubt from those who were at the land or who owned the land or who might have been working on the land like Mr Thompson what the TPO covered. Of course they had to stop doing the work on the trees which they were going to fell. As a result of the notice, letters of objection were received. First of all, there was a letter the following day from Mr Khashaba. It refers to the fact that there was no TPO beforehand. It refers to the objection to the TPO that they found hung up from the bottom tree. It says that it would render the investment worthless. And it actually says, “The area map attached is a rough guide to where the nine deciduous trees are”. There was clearly no doubt in the mind of Mr Khashaba as to which trees the order applied to. There is no suggestion from Mr Thompson that, to the extent that he is relevant, there were any doubts in his mind either. Mr Khashaba actually goes on to identify the three native trees on the land - sorbus, lime and hornbeam – and suggests he might be able to leave more than three. So there is a detailed and firm objection to the confirming of that order. That was one letter. That is simply signed “Mr Khashaba”.

There is another letter dated 13 December also written on behalf of Mr Khashaba’s company and which refers to “our representative Mr Khashaba”. What had happened by then was that Mr Khashaba submitted a planning application either on his behalf or on behalf of the company to develop the site which he had just bought, which was going to be a modest residential development. The point he was making in that letter was that this was going to make his investment worthless. As a matter of fact and law that is not correct. He made a planning application, which has been refused by the Council. He has taken that to an appeal, which will be heard by the inspector in due course. If the inspector reverses the Council’s decision and grants permission, that planning permission would clearly have to deal with the trees, one way or the other. Either they would have to be felled in order to allow the development to be permitted or the development may be permitted in some other way. It is certainly not correct to say that the TPO has now created an inevitable and inexorable blight on any investment of the property. The truth is that it all depends on what happens in the planning appeal. If, of course, the planning application is refused on planning grounds, the making of the TPO is neither here nor there.

There is then a third letter of objection, on which I have been addressed by Mr Thompson this morning. It is a letter addressed to the Council and I will read it in full:

“Dear Sir

We are a local property developer and had this matter brought to our attention. We find it an abuse of process to use a Tree Preservation Order to thwart development rather to genuinely protect trees. This matter has been raised by the Mayor of Pendle Council this morning.

We also object to this interim TPO. The trees have no amenity value whatsoever now, nor in the future. This TPO is a sham.

Yours faithfully

Property UK Ltd

That appears to be a different company also owned by Mr Khashaba and the documents in relation to that can be seen at page 54 and afterwards. Certainly Mr Khashaba was the person who registered that property.

Mr Thomson says to me that that should be taken to be a letter written on his behalf. He says that he had difficulty typing things up and he is dyslexic to some extent and that Cathy Kirkbright, a friend of his, actually wrote it for him. Whatever arrangements he may or may not have made with Miss Kirkbright it is quite impossible on any objective basis to read this as an objection on his behalf. He is not referred to anywhere in that letter. He has not signed it. His name is not typed at the bottom of it. The whole content of the letter refers to “We are a local property developer”. Mr Thompson is not a local property developer. He is someone who fortunately is able to get occasional work from the property developer. He has no interest in that company at all. I simply do not accept that this letter can, on any reasonable basis, be read as an objection made by him or on his behalf. He may well have agreed with the objections taken by the company, but that is a different matter.

After the objections had been raised, the principal environment officer of the Council visited the land and assessed the trees and decided that they did have a public amenity value which ought to be protected and set his views out in a detailed report. That goes through his thinking about why there was an amenity value on it. He explains, at paragraph 2, because they form a roadside feature at the entrance to the residential area, screen the rear elevations and the houses and are a valuable component of the grass area which is recognised. He then goes on to deal with the objections. He cites them in detail at paragraph 7, referring to those letters, and explains they are not objections which can be given any serious weight. He ends up by saying that it was expedient and legitimate to make the provisional order and, as I pointed out, he said that the owner can still submit a planning application which would be assessed on its merits and the TPO would be a material consideration.

Pausing there, it is quite impossible, on a challenge of this kind, to interfere with the logic, reasoning process or approach that has been taken by the officer there so far as matters of substance are concerned. What then happened was that the Council considered all this at a meeting on 3 February 2011. Mr Khashaba attended and he made oral representations. The minutes of that meeting appear at page 59. The relevant section appears at page 62. The recommendation was that the order previously made should be confirmed but with a modification to specify the number of trees and species of trees in group one. The reason given was to protect the trees which were under threat and which met the criteria for a TPO. That is what the Council resolved. Unfortunately there was then a glitch because the resolution was noted as having been made to confirm the order without modification. That was not correct. The public notice that was given on 4 February of confirmation of the order was incorrect in the sense that it said “without modification” when it should have said “with modification”. To that extent there was a breach of regulation 5.4 which states that when an order is confirmed with modifications the modifications shall be indicated. They were not because it was recited as being an order without modifications.

The error was then picked up because what then happened was that a variation order was made, and the variation is something which the Council was entitled to do. That appears at page 43. It corrected the failure to specify the number and type and it purported to vary the original order by changing the description of the trees from “various deciduous trees” to the more specific description of “nine deciduous, three rowan, three lime, two hornbeam, one sycamore” and a copy of the varied schedule was attached and we can see that at page 44. The Council was well within its power to make that order and I interpose the history to say at this stage that one of the points taken orally today was that this was a breach of regulation 8(2) because the variation order should have conformed with regulations 3, 2 and 4-7 in terms of interested parties. That is not right because regulation 8.2 only applies where the order is varied so as to add trees or groups of trees or woodlands to which the order did not previously apply. That would be a different procedural process. One can see the reason for regulation 8(2). It does not apply here because all that has happened is the variation has identified the number within the group and their identity. Its scope has not changed at all and therefore there is no point under regulation 8(2) to be taken.

That completes the story as far as the Council’s activities were concerned. On 18 February Mr Thompson brought this claim. I can summarise his overall objection. He is concerned about the making of the TPO, because what it did immediately was to deprive him of the opportunity to do some work for Mr Khashaba or one of his companies and earn some income which undoubtedly would be important to him. That is his commercial interest in the making or the not making of this TPO. So far as the facts are concerned, he says that he also has an interest in the land (if I can put it how he puts it) because if this property is built, which will require it to get planning permission to be built, he will then be offered lodgings in that property for six months or something like that and will no doubt undertake further work for the companies in connection with the building or the fitting out of those properties and that is all pursuant to an oral promise from Mr Khashaba. Mr Thompson is concerned that that accommodation and work might go as well.

Of course, as I have indicated, as a matter of law that is a concern he need not have because he will not get any of that work unless there is planning permission. That has nothing to do with the TPO. If there is planning permission, then whatever happens with the TPO and the felling work there, which is limited, he will of course have the opportunity to do building work on the property. But that really is the extent of his connection with Mr Khashaba and the area with which I am concerned. It is not surprising, therefore, that he described himself as being an “aggrieved labourer”.

The first question I have to decide before getting to the procedural challenge which has been made is to deal with whether Mr Thompson can bring this claim at all. Section 288 says that a person aggrieved by any order – which here is the TPO – can bring a claim. Mr Thompson says he is aggrieved, and in one very broad and somewhat speculative sense, apart from the immediate prospect of tree felling work, he no doubt is. He says that is enough to give him standing. I disagree. The Act itself does not define the requirements for a person who is aggrieved but the Court of Appeal has. In the case of Eco-Energy v First Secretary of State [2004] EWCA Civ 1566 Buxton LJ, with whom the other members of the Court agreed, said that the person who has the right to bring a claim would include the following: the appellant in the planning process (that is the TPO, he is not the appellant in the planning process) or someone who took a sufficiently active role in the planning process (that is to say a substantial objector, not just someone who objected and did no more about it or someone who has a relevant interest in the land). In the later case of Bown v Bristol City Council [2009] EWHC 1747 Wyn Williams J dealt with the case and dealt with a TPO. It was someone who did not live in the vicinity and whose connection was only by being a member of the Council’s planning department and actually had a role in the planning process. But he objected, in fact did not approve of the outcome. The decision in Eco-Energy was cited with approval. He said that he thought that Buxton LJ had in mind:

“...a person who had been a substantial objector to the proposed and actual decision but was unconnected with the actual decision-making process.”

Mr Thompson could only potentially qualify here in one of two ways. Either he took a sufficiently active role in the planning process, that is to say probably a substantial objector, not someone who objected and did no more about it, or someone who has a relevant interest in the land. Let us deal first of all with the role in the planning process. Mr Thompson did not make any objection, as I have found. He did not attend any meeting or make any other representations at all. I have little doubt that for himself he would have agreed with and supported whatever objections were being made by the company because to some extent his livelihood was being affected. However, that is the extent of his role and I cannot see how this begins to amount to him being a substantial objector. The only other way he can gain standing is if he were someone who had a relevant interest in the land, which Mr Thompson manifestly has not got. He has done his best to suggest that he might by saying that he has – and this is how he put it in one of his statements, all of which I have read – an equitable interest “off that company PLDS” because he has been promised that he can live, as I indicated, as a lodger in one room of the property to be built. That is a property not yet built on land which does not yet have planning permission. It is a highly speculative promise and cannot, in my view, even amount at this stage to any discernible right to live in that property. Even less so can it constitute a present equitable interest not in that particular room or that particular property, but the actual land which is affected by the TPO. That is simply a million miles away from any appropriate interest in the land which could give him standing to bring this claim within the principles enunciated in the Eco-Energy case.

The fact that he has an economic or a commercial interest in the making of the order and would much prefer it not to have been made I fully understand, but that I am afraid does not give him standing in this case. Nor does the fact that he did some occasional work on the plot of land where the trees were. He was at all times acting under the instructions of his company. If it were otherwise, it would mean that anyone who was employed or engaged in connection with the felling of the trees, whatever connection they did or did not otherwise have with them, would be able to bring a claim. That is manifestly absurd and is clearly not the law.

If that is right, there is no need for me to consider the claim any further because Mr Thompson has no right to bring it. However, in deference to the careful arguments which he has made I am going to consider the procedural points if I were wrong on the first ground. Here I can recite that, in addition to his helpful oral submissions and the original papers provided in support of the claim, I have read a skeleton argument dated 11 March, his reply document to the defendant’s skeleton dated 20 April, a short letter to the court dated 21 April and a case summary which Mr Thompson was kind enough to read out, elaborating on where appropriate, before me today, which has a typed date of 4 May.

The first challenge is on the basis that the notice of confirmation which was sent out, to which I have already referred, says that the matter was confirmed pursuant to the Town and Country Planning (Trees) Act 1990. That is within the body of the notice at page 70. It is in fact correctly headed by reference to the Town and Country Planning Act 1990. The reference is incomplete because what it should have said was the Town and Country Planning (Trees) Regulations 1999, not Act. That is an error. It is a technical, and highly technical, breach of the regulations. However, that does not automatically render the decision liable to be quashed. Far from it. The position of the court is this. If an aggrieved person can show that any of the relevant requirements have not been complied with (see section 288(1)(a)(ii)) the court then has a power. That power is set out under section 288(5). It says this, that the High Court:

“...(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action.”

There is a threshold requirement to show substantial prejudice by a failure to comply with any of the requirements. If that threshold is met the Court may, but does not have to, quash the decision. That exercise of discretion is never reached here because the claimant has been utterly unable to show me that he has been substantially prejudiced by a failure to comply with any of the relevant requirements. Indeed, it appears from his statement, typed with the date 4 May, and from his oral submissions before me that he was proceeding under something of a misapprehension to the law, which is perhaps understandable as he is a litigant in person. Mr Thompson thought that whether or not he had been prejudiced by any procedural requirement or failure in respect of it did not matter. He had been prejudiced by the making of the order as whole. That, I am afraid, is a complete misunderstanding of what the law is. The law requires the court to consider quashing if, and only if, the matters complained of have given rise to substantial prejudice. By way of example, it would be ludicrous to suggest that Mr Thompson had been prejudiced by the incorrect reference to the regulations in the notice and indeed, to be fair to him, he has not suggested that he was. So there is nothing more to be said about ground 1.

Ground 2 has wisely been abandoned by Mr Thompson. There was in fact no procedural breach there at all.

Ground 3 is this, that the notice which was sent out to the parties informing them of the making of the provisional order had, by regulation 3, to include within its particulars a copy of regulation 4. Regulation 4 simply deals with the procedure as to how objections and representations should be made. They should refer to the particular trees, that they are to be made by a relevant date specified. A copy of that regulation should have been included with the notice at page 46; it was not. There was no conceivable prejudice about that. The council indicated it was going to consider confirming the Tree Preservation Order. I have already said that no-one was in the slightest doubt as to what it referred to, even though the number and species of tree were not identified. It indicated that the order would take effect for six months or until confirmed. The note has indicated that the council would now consider whether to confirm it. It then said that any objections or comments must be made by 31 December. It went on to say that they should comply with regulation 4. As it happens, the written objections did comply with regulation 4, but if anyone had been in any doubt the recipient of that notice would have known to go to regulation 4. Mr Thompson, in any event, was not the person to whom the notice was sent, which was the landowner and he did not make any objection in his own right. in any event. Whether regulation 4 was set out in the notice or not cannot conceivably have made any difference and he has not suggested otherwise. So there is nothing in that point.

One then comes to ground 4 and this is the failure to observe a requirement to have said how many trees were affected in the original order. I have already explained that there is a procedural requirement and I have explained why, but that could not possibly and did not cause any prejudice to anyone because all those concerned, including Mr Thompson, knew perfectly well which trees were concerned. Indeed, Mr Thompson, again being realistic, did not suggest that he was in any doubt about the matter. As it happened, one can understand why they were not counted because the council chose to make the order without going to visit the site and it was done under circumstances of extreme urgency where, if it did not act immediately, the trees would have been cut down. So, lest it be thought that the Council was acting in some presumptuous or arbitrary manner, I would reject such criticism. In any event the key point is that, although there was a breach of a procedural requirement, it did not result in any prejudice.

It is right to say that there was a second breach because the council resolved sensibly to modify the order when confirmed so as to enumerate the trees and to explain what kind of trees there were. That was not followed through. The notice of confirmation was therefore effective, but again it did not affect anyone who had any knowledge of the operations which were going on or which were intended, including Mr Thompson. The error was rectified by the making of a variation order which the Council was perfectly entitled to make and which itself did not involve any procedural breach. Therefore there is no basis for the challenge made under ground 4.

I will come to ground 5 in a moment. It is somewhat different. When I asked Mr Thompson how could he say that he had been prejudiced by any of these procedural failings the only answer he gave was that in the absence of those failings the TPO would not have been made. However, that is simply a non sequitur. Had the reference to the regulations rather than the Act been corrected, had the trees been identified or enumerated in the original notice, the TPO would still have been made. Had the notice sent out notifying of the provisional order and its confirmation referred to regulation 4, including the regulation, it still would have been made. The reason why it still would have been made is because it is impossible to show that anyone would have done anything different had those procedural defects not been there. So there is nothing in that point.

I deal finally with ground 5. Ground 5 is a much broader objection and there Mr Thompson effectively says that he disagrees with the Council’s view that there was any amenity value in the trees at all. In other words, the Council simply should not have made the TPO. That is his view on those trees. Those are objections, which in fact were made broadly speaking on the part of Mr Khashaba and the company because what is being said is there really such a serious matter if those trees go? The company in fact itself said there was no amenity value in these trees at all. That was in the letter of 13 December and they indeed accused the Council of using this as a pretext to stymie any development. The Council has taken an entirely proper view that the trees do have an amenity value. There is nothing irrational in their decision making process. They have not erred in law in any way at all in procedure or substance in reaching that actual decision. The procedural defects have been limited to those which I have outlined. There is therefore no basis at all for the assertion that the Council has in some way acted by error of law under section 208(1)(a)(i) in coming to the conclusion that the trees did have amenity value, which is the only way that that broad objection could have been couched. As it happens it was couched in terms of a failure to observe procedural requirement, which is misconceived in any event.

That concludes my judgment.