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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Robinson, R (on the application of) v Secretary Of State For Environment, Transport & Regions & Anor [2002] EWCA Civ 530 (27 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/530.html Cite as: [2002] EWCA Civ 530

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
(MR JUSTICE SULLIVAN)

		Royal Courts of Justice Strand London WC2 Wednesday, 27th March 2002

Wednesday, 27th March 2002

1. LORD JUSTICE MANCE: These are two joined applications for permission to appeal against an order made by Sullivan J, dated 16th January 2002. By that order the judge dismissed with costs two applications by Mr Robinson; firstly, an application under section 288 of the Town and Country Planning Act 1990 to quash the East Riding of Yorkshire Council's decision to adopt a Tree Preservation Order (Bridlington No 19) 2000, covering trees sited on Mr Robinson's property, which is called Marton Hall, in East Riding; secondly, an application by Mr Robinson for permission to apply for judicial review of the promulgation of the Town and Planning (Trees) Regulations 1990, by the Secretary of State Transport and the Regions.
2. The facts are set out in the judge's judgment at paragraphs 1 to 13 and, save for an issue whether there was an adequate survey and a possible issue regarding the bona fides of the Council, are not in dispute.
3. Marton Hall is a listed building in the Council's area, with grounds of some 33 acres, in which it is clear from the photographs that there are a large number of trees. A Tree Preservation Order was purportedly made in 1988 but, due to some oversight it appears, was not formally confirmed. The reasons then given were because the trees formed part of the landscaping of the grounds of the Hall and made a substantial contribution to the local scenery. That order appears to have been made by designating certain woodlands mainly on the outside of the property and then by designating the whole of the central area of the property as an area within which the trees were to be preserved. As I say it was invalid because it was never formally confirmed.
4. However, early in 2000 Mr Robinson made planning applications to use a small part of the Hall grounds as a touring caravan park. The photographs show that the land to the east of Marton Hall, which is outside his property, is already used under established permission as a caravan park, and the substance of his complaint is that he is being or was being (since he is no longer interested he tells me) restrained from using a small part of his own grounds for that activity.
5. The activity would have required removing some trees. The bundle before me includes a letter of 23rd May 2000 from one branch of the Council to another, in which the writer, a planning officer with responsibility for trees and landscape, says:

"The site is subject to a Tree Preservation Order. Much more detail is required to assess the impact of the proposal on mature trees on it adjacent to the site. A full and detailed tree survey is required showing the species position, size and canopy spread of all trees and indicating those which will require removal.

I object to the proposals in their present form."

6. It would appear that that letter was probably written before the planning applications were disposed of and so before any appeal was lodged. It does not appear to have been followed up by any survey. The Council refused the planning applications and the claimant lodged an appeal. During the preparation for the appeal the Council officers realised that the 1988 Tree Preservation Order had not been confirmed.
7. Once the Council officers realised that the 1988 Tree Preservation Order was not valid a further survey was put in hand on 9th November 2000. It is common ground that a planning officer, Mr Kennedy, who has made a witness statement, did attend Marton Hall. He apparently attended without giving any notice, so he did not have a right to go on the property without permission since the statute requires 24 hours' notice before an officer can insist upon entering. However, he went on, and he says that he did a survey and took notes. There is a substantial dispute about that, as the judge recorded. Mr Kennedy says that his survey took two hours or more. Mr Robinson filed evidence to the effect that it did not take more than 20 minutes, and questions whether there can really have been any notes since, he submits, it is rather surprising that notes of that nature should have been thrown away. He also points out that all that resulted from this survey (and were annexed to the Tree Preservation Order then made) were maps showing outlying areas which corresponded precisely with the outlying areas identified in the maps attached to ineffective 1988 Tree Preservation Order. The maps themselves appear to have been downloaded from some 1998 version, but the areas marked on them simply reproduced the previous areas which Mr Robinson suggest is rather surprising since one would expect some change in the outlying woodlands.
8. Further, Mr Robinson points out that there was no attempt to identify individual trees, in particular trees which would require removal if the application was granted, as had been suggested in the letter of 23rd May 2000.
9. Mr Robinson objected to the Tree Preservation Order letter dated 12th December 2000. He objected specifically to that part of the order which specified four woodlands round the outside of the property, on the grounds that it was excessive and oppressive, unnecessary and had not followed any proper inspection or listing of the trees, and also on the ground that the Council's action in implementing the order was not impartial. He later extended his objection by letter of 16th December to the whole of the order.
10. Despite this, on 9th April the Director of Law Administration Planning and Property recommended confirmation of the preservation order to the Northern Planning Area Subcommittee of the Council, stating that the trees substantially contributed to the amenity of the area, and the subcommittee duly confirmed the order. It is said, and it is quite likely to be correct, that there was only a very brief consideration of the position before the subcommittee.
11. On 10th April 2001 notice was given to Mr Robinson of his right to apply under section 288 of the Town and Country Planning Act 1990. The planning appeal was called in by the Secretary of State, and an inquiry took place on 16th and 17th May 2001. At the date of the judge's judgment no decision had been given. It now appears decisions have been given unfavourable to Mr Robinson.
12. On 27th May 2001 Mr Robinson applied to the High Court under section 288 to set aside the preservation order. He made four points in his application. First, the Council had failed to carry out a full and detailed survey as required; second, the Council used an incorrect, out-dated map, relying on the map and survey for the 1988 Tree Preservation Order; third, the Council failed to consider Mr Robinson's objection and failed to consult him about the order; and fourth, the Council made preservation orders in bad faith to justify its decisions in the planning applications.
13. There was an application to strike out the claim which came before Forbes J on 20th September. He refused the application. I have a copy of his order obtained from the Crown Office, by the Civil Appeals Office, and in addition to dismissing the application to strike out it simply orders times for the filing of evidence on each side and a time estimate of one to one and a half days. It says nothing about giving notice of any wish to cross-examine. The Council says that that was discussed at the hearing before Forbes J. If so, it is unfortunate that if any order was made about it it did not get into the order. As it is, I accept that Mr Robinson was not aware from the order that he had to give any notice if he wished to cross-examine any Council employee. It may be that something was said about this during the hearing, but I also accept that he did not take it in. It seems to me that is not too surprising in a case of a litigant in person when it is not repeated in the order. He also tells me that he is a diabetic and by the time that the hearing before Forbes J ended he was very tired.
14. In around the latter part of 2001 Mr Robinson also noticed what he considered to be an incongruity in the regulatory position regarding the question whether a Tree Preservation Order could legitimately recognise trees by area rather than individually by groups or woodland. He wrote on 21st September 2001 to the Department of Environment Transport and Regions ("DETR") about the inconsistency, receiving a reply on 27th September which stated that the DETR considered that it was legitimate to specify trees by area although there was no court ruling confirming this position.
15. Mr Robinson has said before me that that reply effectively invited him to commence proceedings against the Secretary of State. I think that is putting it substantially too high. I think that it was simply drawing attention to a possibility if Mr Robinson continued with his stance. The Department was not suggesting that it had any doubts about the real answer. Nonetheless, on 29th November 2001, Mr Robinson did launch judicial review proceedings against the Secretary of State to challenge the legality of the 1999 Regulation. An acknowledgment of service was submitted by the Secretary of State setting out why he considered this claim to be unfounded. Mr Robinson tells me, although I have not been able to check this and it does not appear from the copy before me, that some costs were claimed on that acknowledgment of service. I do not think, ultimately, that it is material.
16. On 14th January 2002 that application for permission to bring judicial review came before Scott Baker J, who made an order that it be listed for oral hearing on notice to the defendant before the same judge and at the same date as the other proceedings under section 288. It is not surprising in those circumstances that the Secretary of State appeared and was represented before Sullivan J on 16th January.
17. Sullivan J rejected the application for permission to apply for judicial review on the ground that the relevant regulations, that is the Town and Country Planning (Trees) Regulations 1999 Statutory Instrument 1999 No.1892, have to be read as a whole. They therefore have to be read as including schedule 1, specification of trees, which appears after the order which is itself described as a schedule to the regulations. The relevance of that is that, although the regulations and the order speak of Tree Preservation Orders in respect of any tree specified in schedule 1 or comprised in a group of trees or in a woodland so specified, schedule 1 itself makes it clear that a tree can be specified in one of two ways: either individually, or by reference to an area within a dotted black line on a map, as well, of course, as being specified as a group of trees or as woodlands.
18. It seems to me that Sullivan J was right on that point. It is true, as Mr Robinson has pointed out, that paragraph 2(1)(b) of the Regulations requires that where on order relates to a group of trees it shall specify the number of trees in the group. There is no such requirement in respect of trees or woodlands. Mr Robinson argues that that excludes any specification of trees by reference to an area because otherwise there would have been some requirement to number trees within any such area.
19. That does not seem to me to follow. Trees within an area means all trees within an area. A group of trees requires some further identification and description which has to be by number. In any event, as the judge pointed out, schedule 1 is part of the whole of the regulations and clearly contemplates what happened here, trees being specified by reference to an area; namely, the central Area A1 on the map within the present Tree Preservation Order. It is right to say that Mr Robinson does not before me formally renew his application for permission to apply for judicial review and does not formally seek permission to appeal against the refusal of permission to apply for judicial review. However, he did argue the points and so I have expressed my view upon them.
20. What he does complain about formally, in respect of Sullivan J's dismissal of his application in relation to the Secretary of State, is the resulting costs order which was made against him in the sum of £2000, summarily assessed. He points out, correctly, that the Secretary of State was in breach of the rule requiring any statement of costs to be served not less than 24 hours before the date fixed for the hearing: see the practice direction at 44 PD-007 paragraph 13.578(4). The Secretary of State only sent him a copy by post the day before the hearing and of course it did not reach him until he returned to Yorkshire; and he pointed this out by letter the day after the hearing. So the judge might legitimately have refused to go into any question of summary assessment. On the other hand he was not absolutely precluded from doing so. What he did do was look at the extent of the costs sought. He said towards the close of the hearing that detailed assessment cost money, which Mr Robinson might end up paying the costs of. He said that, doing the best he could, "bearing in mind that a great deal of work had actually been done by the time of the acknowledgement of service, and query how much time and costs was really justified for the hearing that day", he would be thinking of £2,000 for the Treasury Solicitor. He then asked Mr Robinson:

"Now, do you want to press your application for detailed assessment in the light of those figures. For the Council?"

21. Mr Robinson replied:

"For the Council, yes, not for the Treasury Solicitor. I cannot understand the costs actually. I do have a costs statement somewhere of what they were for the hearing; they were something like £6,000."

22. So there he is going on to deal with the Council and not the Treasury Solicitor. When I asked him today what his real complaint was and whether there were specific items of the costs which he felt he could have complained about, given being more time, he said, frankly, that he was not really complaining about the order in detail; he was really complaining about it as a whole. He accepted that the hourly rate and counsel's fees did not seem really high but he did say "I would challenge the number of hours." He says that his real point was that the Secretary of State should not have been represented and should not have been there at all. He did not get any documents saying the Secretary of State would attend, and the Secretary of State virtually invited him to apply to the High Court. As I said, I do not think the last point is right. It seems to me it was his choice. As to the Secretary of State's attendance that was as a result of Scott Baker J's order. What Mr Robinson was of course hoping to achieve was a situation where the Secretary of State was there to argue an application for judicial review and it seems to me he did more or less achieve that. Unfortunately he lost it, and regrettably he ought to pay the costs. I do not see any real prospect of his establishing that the judge's order was wrong in principle or in amount. Even if there were any arguments about amounts it seems to me they would be likely to be within a very small compass and certainly not such as, in view of the prospects, would justify permission to appeal.
23. I refuse this application in respect of the proceedings against the Secretary of State.
24. I turn to the position as against the Council and in relation to the application under section 288. The judge here was prepared to proceed on the basis that although the Statutory Instrument does not require any survey in practice it would not be possible for a Council sensibly to form a view as to whether a Tree Preservation Order should be made in the interest of amenity without some form of survey. That seems to me obviously correct and to be fortified by the letter which I have read of 23rd May 2000 written by the Council. The judge said:

"A claim that a survey has been perfunctory or inadequate, even if established, would not lead the court to the conclusion that the tree preservation order was invalid as a matter of law."

25. In those circumstances it seems that the judge felt that it was unnecessary to allow any cross-examination. He records in his judgment that he specifically refused it as to the adequacy of the survey, because such cross-examination could not alter the fact that a survey had been carried out and this was sufficient. He said:

"I declined to allow the claimant to cross-examine about this matter because the court in applications under section 288 is not concerned with the merits of a tree preservation order, merely with whether it is within the powers of the Act and whether the relevant procedural requirements have been complied with."

26. Turning to a different point, the judge said there was nothing in the 1999 Statutory Instrument which demanded the use of an up-to-date map, however desirable that might be in practice. All that was required was that the map "shall indicate the position of the trees". In any event the evidence suggested that it was dated from 1998.
27. The judge held that it was plain that the Council did consult with Mr Robinson over its plans, referring to correspondence in May 2000; and he held that the Council did not act in bad faith in making the Tree Preservation Order, there was nothing improper or unusual about the planning application triggering the making of a provisional Tree Preservation Order and the impact of a proposal upon trees was a material consideration at a planning inquiry.
28. Mr Robinson seeks permission to appeal in respect of the judge's decision. First, as regards the question of a survey, he submits that he was denied a fair hearing and cross-examination should have been allowed. He points out that under section 288 a court could quash a tree preservation order if it is satisfied:

"... that the order... is not within the powers of the Act or that the interest of the appellant had been substantially prejudiced by the failure to comply with any of the relevant requirements in relation to it..."

29. The judge, as I said, recorded that there was a dispute about whether there had been a proper survey, but he did not resolve that dispute of fact, which was the subject of witness statements on each side. He simply decided that it was irrelevant to resolve it and therefore irrelevant to allow cross-examination. He also went on, I should add, to suggest that there were various alternative remedies open to Mr Robinson.
30. It seems to me that the judge's reasoning on this area of the matter is vulnerable to criticism and that permission to appeal is justified in respect of it. It seems to me on the face of it that, if no proper survey has been done, that is as good (or bad) as no survey at all, and that may undermine the validity of a Tree Preservation Order.
31. As to the judge's decision that other remedies would suffice, what the judge evidently had in mind was this. Even if the Tree Preservation Order is in place one could still argue at a planning application or planning appeal that planning permission should be given which would involve the felling of trees and in that situation a Tree Preservation Order will not stand in the way. However, that issue seems to me a circular argument since a Tree Preservation Order is itself an obstacle or a relevant consideration in the context of a planning application or appeal. Indeed, the judge says as much at paragraph 37 of his judgment, where he says:

"...the impact of a proposal upon trees is plainly one of the material considerations that an authority should take into account in determining an application for planning permission. To enable the authority to do that, they will very often send an officer round to survey the site and, as part and parcel of their consideration of the matter, they will give consideration as to whether or not a tree preservation order ought to be made. That should not be equated with the council seeking to bolster its position at a planning inquiry."

32. On the other hand it seems that it is obviously the taking of a step which will have relevance to a planning inquiry.
33. On the face of it, therefore, it seems to me that if a proper procedure was not followed in making a Tree Preservation Order here then the right about which Mr Robinson was given notice to apply under section 288 is one which he is entitled to exercise; and I would therefore give permission to appeal on this ground.
34. I should say a little more about the question of cross-examination. I have already mentioned in Forbes J's order the absence of any express requirement to give notice of any intention to cross-examine or apply for cross-examination. The judge did not decline to allow cross-examination because no such notice had been given. In point of fact the Council turned up before Sullivan J with the two relevant tree officers: Mr Lee, who I understand to have been in a supervisory capacity, and Mr Kennedy, who says that he actually did the survey. Why the Council brought them down and is charging the costs of doing so may be irrelevant to consider, but the fact is that they were there and Mr Robinson applied to cross-examine them and the judge refused this. They both made witness statements.
35. I move to the next point which is a complaint about the judge's ruling regarding the map. It seems to me this may have some relationship to the point made regarding a survey and, so far as it does, nothing that I say should preclude Mr Robinson arguing it in that context. If, for example, the map was simply a proforma reproduction of the 1988 map, not based on any real reconsideration, it seems to me that the map would be as vulnerable as the survey. To that extent it seems to me permission is justified in respect of the map. On the other hand, if the position proves to be that a proper survey was done and the map is the product of a proper survey after full reconsideration, then I very much doubt whether any complaint about its out-of-date nature in any other respect which Mr Robinson has identified could have any materiality. The out-of-date nature, as I understand it, consists, for example, in its failure to show certain buildings or its inclusion of certain buildings which no longer existed, its inclusion in one of the areas, I think W4, of property sold off as long ago as 1970, and its failure to include a new road to a barn. Mr Robinson also says it is too small a scale, but there does not seem to be anything in that. So on that sort of point it seems to me that the objections are technical and would not by themselves merit permission to appeal. However, insofar as the map is part of a more root and branch challenge to the proper procedure, as I say, permission is justified.
36. The next point which I should consider is the challenge to the area order. I have already covered that in what I have said. There is nothing in that. Permission is not granted on that ground. The fourth point is the challenge to the Council's bona fides when the subcommittee confirmed the Tree Preservation Order. In that context Mr Robinson wanted to cross-examine one of the councillors, Councillor Allister, who is recorded as being at the subcommittee meeting. He tells me that at some point he did have a witness who worked for the Council who was going to assist him but is not now prepared to. He accepts that any challenge to the bona fides of the subcommittee's conduct is difficult to pursue and he did not really press it at all hard before me.
37. It seems to me that it is indeed impossible on present material to conclude that there is any prima facie case that the subcommittee failed to consider the matter properly or considered it with any improper purpose in mind. The conduct of the officers is a different matter, as I have indicated. That seems to me appropriate for permission to appeal; whether they were undertaking a real exercise or going through the motions is part and parcel of the inquiry whether they did a proper survey.
38. The challenge mounted below to the Council for failing to consult is one which the judge quite rightly dismissed in the light of the notice given to Mr Robinson under the December 2000 correspondence.
39. Finally, there is a challenge on the basis of Article 6 of the European Convention on Human Rights to the planning control mechanism. Effectively, it is said that this mechanism involved the Council acting as planning authority and tree preservation authority and as investigator and judge in its own cause. It seems to me that there can be nothing in that. The Council's activities are subject to the controls of judicial review and section 288. The House of Lords in R v Alconbury Limited v Secretary of State for the Environment Transport and the Regions [2001] 1 WLR 1389 considered a somewhat similar complaint in the context of the procedures for obtaining planning permission and for appeals to an Inspector appointed by the Secretary of State. It seems to me that the planning system and tree preservation order system are compliant when one bears in mind the observations of the House of Lords.
40. For those reasons I give restricted permission to appeal in respect of the proceedings involving the East Riding of Yorkshire Council, otherwise I refuse permission to appeal. I should say that the appellant required an extension of time in respect of both his applications which were only very slightly late in circumstances which he has explained, and I grant him extensions of time to make both the relevant applications.
(Permission to appeal allowed in part; no order as to costs).