St Vincent's Housing Association Ltd v Secretary of State for Communities and Local Government

I now proceed to give judgment in the case of St Vincent’s Housing Association Ltd v the Secretary of State for Communities and Local Government. St Vincent’s Housing Association Ltd, the Claimant, is a registered provider of social housing. Pursuant to s 288 of the Town and Country Planning Act 1990 the Claimant Housing Association applied to the High Court as a person aggrieved by the decision of a planning inspector dated 29 March 2011 to refuse to give planning permission for the erection of ten bungalows on land situated to the rear of number 12 Green Lane in Shelf, which is in the locality of Halifax.

What has bulked large in this application are the trees which are in considerable number on the proposed site. I should say something about them at this stage; more detailed reasons will be provided later in this judgment. In the bundle for the case I have, at page 42,what has been described as a shadow zone drawing. If the drawing is held pointing north with Green Lane at the top one can see running north to south the dwellings which are proposed to be built, numbering at the top from one through to number ten on the bottom. These are the semi-detached bungalows and on the east boundary of the site there are a considerable number of mature deciduous trees marked as being present. There is a key which indicates that any tree which falls within an area which is hatched blue is to be removed. Those trees were to be removed because of their general poor condition and the planning inspector saw no reason to dissent from the suggestion that removal was appropriate in the case of those trees. Those being removed, a considerable number of trees still remain. What is shown, as I have already indicated, is the tree shadow zone. Those trees are regarded, so far as condition is concerned, as being good or good enough and so they will remain. They are the subject of a tree preservation order that was imposed in the year 1990.

I come now to something which was said about those trees in the course of the inspector’s decision letter. At paragraph 9 he said this:

“Whilst most of the trees are shown to be retained, the Tree Shadow Zone plan shows that all of the gardens and the windows/patio doors to the rear facing bedrooms and lounges of Plots 1, 2 and 8 and most of the garden of Plot 9 would be heavily overshadowed.”

These trees are deciduous; obviously. they were not in leaf throughout the winter of 2010/2011 and particularly they would not have been in leaf when the inspector performed his site visit on 21 February 2011. The fact is, however, that he did make a site visit and had the opportunity to consider the size and conformation of the trees and their proximity to the proposed building area. On any reasonable construction of the decision letter it is quite plainly the presence of the trees which condition the refusal. It is right to say that the site was a green field site and he bore that in mind, but the trees were fundamental to his decision.

If I look at paragraph 4 he identified the main issue of the appeal in these terms:

“The effect on the character and appearance of the area, with particular reference to the impact on protected trees.”

So far as trees are concerned, the inspector referred to a number of Natural Environment Notices, in particular, that which is described as policy NE21. That appears in the development plan for Calderdale adopted on 25 August 2006. In that part of the development plan, which is subtitled Natural Environment and the Countryside, paragraphs 11.78 and 11.79, there are the following expressions under the heading of “Shade cast”:

“Trees can overshadow and cast shade on adjacent dwellings and other types of buildings, which can severely affect amenity and in particular that of residents. Shade cast can often threaten the retention of trees due to residents and other occupiers requesting the felling of offending trees. As such, when considering the layout of developments, the Council will seek to prevent an unacceptable degree of overshadowing of development by trees that are to be retained either on or off site.

“Where the likely level of shade cast is considered to be unacceptable a proposal will be refused in order to preserve any tree(s) of amenity value.”

So far as the policy itself is concerned, NE21 says this:

“Where trees are located on or adjacent to development sites, development proposals will be permitted provided that:-

v.

an appropriate layout of development is achieved which prevents the development being subjected to an unacceptable degree of shade cast by trees which are to be retained”

It is clear from the content of the decision letter that the inspector was greatly concerned by the shade cast over the houses and curtilages proposed to be built. I have already cited his reference to plots of one, two, eight and nine being heavily overshadowed. I should read the rest of paragraph 9 in full:

“New residents might initially consider the presence of mature trees an attractive feature. However, a large tree can be frightening, particularly when it sways. Birds roosting in the trees can be noisy and messy. Trees can make gardens damp and dark preventing garden plants from growing and can result in dark and claustrophobic living conditions inside a dwelling. Debris, such as leaves, pollen and honeydew, falls from trees throughout the year. Given the proximity of the trees to the proposed bungalows and the degree of shading, these impacts would be perceived as a significant nuisance and danger. These problems will result in pressure from the owners of the bungalows to fell the offending trees. Even though the trees are protected by a TPO their proximity to the bungalows and the degree of shadow cast would make it difficult for the Council to resist application to fell the trees on safety and amenity grounds. This would result in the potential loss of a further 20 trees. Accordingly, the loss of trees as a result of the development would have a significant and unacceptable effect on the character and appearance of the area.”

The letter also deals with the impact on nature conservation and the fact that the area is within a site designated as a wildlife corridor. He said this in the conclusion of the paragraph:

“…the loss of a significant number of mature trees would have an adverse impact on the value of the wildlife corridor.”

Paragraph 14 says this:

“Notwithstanding that most of the site is shown to be within a Primary Housing Area, UDP Policy H9 says that proposals for residential development on unallocated green field land will not be permitted. Given my conclusion regarding the green-field nature of the site and the unacceptable impact on the character of the area through the significant loss of protected trees, the proposal would conflict with the objectives of Policies GP2 and H9.”

It is submitted to me on behalf of the Claimant that the concern about trees is not something that was reflected in the presentation of the council’s planning officers when the application for permission was first made to the local planning authority. Indeed, the council planning officers’ recommendation was that the application should be approved. However, as they were entitled to do, the planning committee departed from the position of the planning officers and refused permission hence, obviously, the appeal. The point is then made that the refusal by the local planning committee does not contain in its decision any concern regarding the fate of the trees. Those points are all factually accurate but it does seem to me that the Inspector was entitled to bring his own mind to the issues at stake. The submission for the Claimant is that the Inspector, being so entitled, has not made a particularly good fist of things.

The points made by the Claimant are helpfully summarised in the skeleton argument at paragraph 3. Under 3.1 it is said as follows:

“There was no evidence before the Inspector from which he could rationally draw the conclusion that:

3.1.1

the impact of the trees to be retained on the site on future occupants’ particular units would be seen as a significant nuisance and danger;

3.1.2

the Council would find it difficult to resist any future applications to fell the remaining trees on safety and amenity grounds;

3.1.3

the Proposed Development would therefore result in the loss of 20 trees in addition to those identified for removal as part of the Proposed Development which would have an unacceptable impact on the character and appearance of the local area and on wildlife.”

One matter which has focused prominently in the submission of the Claimant is the fact that the Inspector was making his own prediction as to what the council’s attitude would be, in its capacity as local planning authority, to any application for consent to cut down trees which were the subject of a protection order. Mr Hardy observes in his skeleton argument at paragraph 5.7:

“Any application submitted pursuant to Regulation 9A the Town and Country Planning (Trees) Regulations would be considered by the Council on its merits in accordance with the relevant law and policy. It is submitted that the Inspector’s presupposition regarding the likely outcome of any future applications discloses an error in law. The Inspector could not reasonably come to the conclusion that the Proposed Developments ‘would result in the likely loss of a further 20 trees…’.”

Let me take this in stages. So far as paragraph nine is concerned, it is clear that the inspector took as the fundamental piece of evidence the tree shadow zone plan. He can scarcely be criticised for doing so because this particular document is one which was brought into existence by those acting for the claimant. It is submitted by Mr Hardy that the shadow plan represents what he describes as the worst case. Even if that be so, the worst case is something that can happen. I take the view that the inspector was entitled to regard the shadow zone set out on the drawing as representing the case. He makes the proposition that a large tree can be frightening, particularly when it sways; birds roosting in the trees can be noisy and messy; trees can make gardens damp and dark preventing garden plants from growing; and they can result in dark and claustrophobic living conditions inside a dwelling. It seems to me that all those propositions are ones which the inspector was entitled to take into account. It seems to me that those propositions are simply general common sense. Ditto the further point that debris, such as leaves, pollen and honeydew, fall from trees throughout the year. Having stated that proposition, he then goes on to say:

“Given the proximity of the trees to the proposed bungalows and the degree of shading, these impacts would be perceived as a significant nuisance and danger.”

Insofar as he predicted that considerations of that character would lead to pressure for felling the trees or for applications being made that the trees be felled, it seems that he would be in the same company as the authors of the structural development plan. I refer to the paragraph I have already cited which says:

“Shade cast can often threaten the retention of trees due to residents and other occupiers requesting the felling of offending trees.”

It is clear from his reference elsewhere to NE21 that that passage was in his mind.

The critical question which is posed by Mr Hardy is: Was he entitled to predict that the outcome of such applications for consent to fell would be that they would be granted? Paragraph 9 says this:

“Even though the trees are protected by a TPO their proximity to the bungalows and the degree of shadow cast would make it difficult for the council to resist applications to fell the trees on safety and amenity grounds.”

I do not find it easy to expend a lot of words on this; I think it is a matter of impression. However, bearing in mind the content of NE21 and its commentary, and bearing in mind that the decision was made by a planning inspector who obviously would be appropriately qualified in this area, I take the view that he was entitled to conclude that the applications, if made, would be granted. I do not think he expressed the matter in terms of the level of probability or certitude but it was enough for him to regard the loss of a significant number of trees as being a consequence and a more than likely one at that, it appears to me. I cannot see that he went wrong in coming to that conclusion. It was submitted to me, understandably, that were applications to be made in these circumstances any planning authority worth its salt would tell the applicants to be off and that they should bear in mind that they bought the house with the trees in the locality. I get from paragraph 11.78 (which I have cited) that that would not be likely to be the reaction of a planning authority.

I add this by way of afterthought - and I think I have given Mr Hardy the opportunity to comment on it – for my part, I have to consider, amongst other aspects of the skeleton argument, that which appears at paragraph 6.2. Mr Hardy says this:

“From the overall conclusion set out in paragraph 17 of the decision letter, it is clear that the loss of a further 20 trees and the impact this would have on the value of the wildlife corridor was weighedagainst the benefits of the development. It is submitted that there is a very real risk that the Inspector would have reached a different conclusion had the errors in law identified above not been made” (the errors in law being as it was presented that there was no evidence upon which he coulddraw the conclusions he did).

It seems to me that it would not have made any difference to the inspector’s decision if he had concluded in his prediction exercise that the trees would not have gone. It is clear to me that, bearing in mind the content of paragraph nine of the decision letter, he would still have refused permission. The fact is that the problem is the trees. If the trees are lost that is a problem for the reasons given in his decision; if the trees are retained, that is a problem which appears for the reasons set out in paragraph nine.

The further submission was that the reasons given were inadequate. There has been a substantial critique of the inspector’s reasoning on the “no evidence to support particular findings” front : any want of reasons did not prevent a thorough critique of the findings which he made. If one can criticise findings, at least it indicates that one knows what they are. I think that, as Mr Hardy puts it, what he is really driving at is this: it is not enough to say that the local planning authority would grant consent for the felling of protected trees; one has to have set out reasons why one thinks they would do that.

The reasons are adequately set out in paragraph nine, the point being that the proximity to the bungalows and the degree of shadow cast would make it difficult for the council to resist applications to fell the trees on safety and amenity grounds. I do not think that anything more is called for than that.

In the circumstances the application is unsuccessful.