Neutral Citation Number: [2012] EWHC 1431 (Admin)

Case No: CO/2370/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 09/05/2012

Before :

THE HONOURABLE MR JUSTICE UNDERHILL
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Between :

	Banner Homes Central Limited	Claimant	
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	(1) Secretary of State for Communities and Local Government

(2) London Borough of Hillingdon	First Defendant

Second Defendant	

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Sasha White (instructed by Clyde & Co LLP) for the Claimant
Sarah-Jane Davies (instructed by the Treasury Solicitor) for the First Defendant

Hearing dates: 28 April 2012
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Approved Judgment

The Honourable Mr Justice Underhill : 

Introduction 

1.	This is an appeal under section 288 (5) (b) of the Town and Country Planning Act 1990.  The background can be summarised as follows.  
(1)	The appeal concerns a property in Northwood in Middlesex called Oakhurst and a plot forming part, at least until the events described below, of its garden (“the adjacent land”).  Oakhurst is a four-bedroom 1920s detached house built as part of the Copsewood Estate, which incorporates old woodland with many mature trees.  The Copsewood Estate is designated as an Area of Special Character, characterised, as the Inspector put it, by “large detached houses on generous and verdant plots”; and the very numerous trees are the subjects of a Tree Preservation Order (“the TPO”).  
(2)	Originally Oakhurst had a very large garden.  In 2008 the then owners (three members of the same family, to whom I will refer simply as “the family”) obtained planning permission to develop two new dwelling-houses in the southern part of the garden and sold the land in question to the Claimant.  The properties were constructed during 2010/2011.  The area of garden retained consisted principally of an area to the immediate south of the house, consisting mostly of lawn but with a large oak-tree in the middle (to which I shall have to return) and of an area to the west, also mostly lawn, though fringed by trees, sometimes referred to in the papers before me as “the side-lawn”.  In 2009 the family sold Oakhurst itself to the Claimant, including the part of the garden to the south of the house.  They retained the part of the garden to the west of the house, which thus became the adjacent land to which I have already referred.  However, they granted the Claimant an option over that land too.  Quite why things were done in this complicated way is unexplained, but it does not matter for present purposes.  
(3)	Oakhurst was by that time unoccupied.  I am told that a fence was initially erected along the line between the two plots created by the 2009 sale, but it was taken down shortly afterwards because the family gave the Claimant a licence to use the adjacent land as a compound for the purpose of the building works for the two new houses to which I have referred.  So, despite the split in ownership, the Claimant had in practice in 2010/2011 possession of the entirety of Oakhurst and its original garden, and there was, to outward appearances, no difference between the area of garden to the immediate south of the house and the adjacent land to the west.  
(4)	On 1 June 2010 the Claimant made two applications to the Second Defendant, the London Borough of Hillingdon (“the Council”), for planning permission – the first being to demolish and rebuild Oakhurst itself and the second being to erect a new dwelling on the adjacent land.  There is no reason in principle why the two developments could not have been the subject of a single application, but I am told that some difficulty was anticipated with the application to demolish Oakhurst, which was thought to have some heritage value, and it was regarded as more prudent to provide against the possibility of different outcomes.  Rather counter-intuitively, but reflecting the description in the papers, I will refer to the application relating to Oakhurst as application B and the application relating to the adjacent land as application A.  
(5)	The Council failed to make a decision on the applications within the requisite period, and on 11 August 2010 the Claimant appealed to the First Defendant, the Secretary of State, by reason of that non-determination.  Both appeals were considered by an Inspector on the basis of written representations.  By a decision dated 3 February 2011 he dismissed the appeals, thereby in effect refusing planning permission.  
2.	The Claimant appeals against both decisions.  It is represented by Mr Sasha White of counsel and the Secretary of State by Ms Sarah-Jane Davies of counsel.  The Council has played no part in the appeal.  
3.	The Council in the usual way considered the applications notwithstanding the appeals and determined that it would have refused both.  Its reasons were provided to the Inspector and the Claimant and formed the basis of its case on the appeal.  The Inspector considered in his decision a number of objections on which the Council had relied.  He found in the Claimant’s favour on most of them.  His grounds for dismissing both appeals related solely to the oak-tree to which I have already referred which stands in the lawn to the immediate south of the house.  This was one of the trees protected by the TPO, in which it was designated T29 (it is T257 on the plans produced by the Claimant’s arboricultural expert).  The Inspector described T29 as “a large and impressive tree which in my opinion makes an important contribution to the verdant character and appearance of the area”.  In relation to appeal A – that is, the appeal relating to the adjacent land - he said this:
“10. … The proposal, on what is now part of the garden of Oakhurst, would leave that property with a much reduced garden, with a private amenity area at the south-facing rear of the house.  The Oak, which would occupy a broadly central location in the remaining rear garden of Oakhurst, has a large spread, as I saw on my site visit.  … I appreciate that no part of the amenity area or the house would remain in permanent shadow because of the tree.  Nevertheless, because of the location of the tree within the amenity area, its relationship with Oakhurst, and the orientation of the sun, it is my view that the tree would result in there being a significant level of overshadowing of the amenity area, particularly that which is closest to the house and likeliest to receive most use, during those months when the tree is in leaf.  
11. … Given the effect of tree T29 on the reduced amenity space of Oakhurst, I think it is likely that the tree would have a dominating and oppressive impact on the future occupiers of Oakhurst in terms of their living conditions, with them making applications to fell or substantially reduce the tree.  In my experience, given the impact of the tree, it would be difficult for the Council to refuse such applications.  I therefore conclude that the proposal is likely to result in the loss or substantial reduction of a protected Oak tree (T29) which, in my opinion, would result in significant harm to the character and appearance which is an Area of Special Local Character contrary to Policies BE13, BE19, BE23 and BE38 of the UDP.  Policy BE23 seeks to ensure that dwellings have adequate amenity space and Policy BE38 refers to the retention of landscape features of merit.
12.	I note that there are trees in the gardens of the two houses which are currently being built behind Oakhurst.  However, from the evidence before me, I consider that they are not likely to have the same significant adverse impact that Oak tree T29 would have on the amenity area at Oakhurst.”
In other words, because the proposed development of the adjacent land would mean that Oakhurst’s only garden would be the area to the south, T29 was likely to be substantially reduced or felled.  As regards appeal B, the reasoning was similar but not identical.  Paras. 34–36 of the decision read as follows:
“Private amenity space for future occupiers
34.	The Council contended that the rear amenity area for the proposal would not afford sufficient usable space for its occupiers because of the presence of protected trees which would overshadow the area.  The proposal would have a much smaller curtilage than that currently enjoyed by Oakhurst with a private amenity area for future occupiers being provided at the rear of the new house.  A large protected Oak tree (T29) would occupy a broadly central location in the amenity area.  The lower crown of the tree is smaller in size than its high crown and I note that no part of the amenity area would remain in permanent shadow.  However, because of the location of the tree within the amenity area, its relationship with the proposed house, and the orientation of the sun, it is my view that the tree would result in there being a significant level of overshadowing of the amenity area, particularly that which is closest to the house and likely to receive most use, during those months when the tree is in leaf.
35.	… In my opinion, notwithstanding that the rear garden would be relatively large (when compared to others which serve modern, similar sized houses to that in the proposal), the extent of the overshadowing would be such as to render large parts of the garden unsuitable for many aspects of amenity use for significant amounts of time.  I conclude therefore that the proposal would result in harm to the living conditions of future occupiers of it in terms of private amenity space.  The proposal would, therefore, be contrary to Policy BE23 of the UDP.

Effect of the proposal on trees
36.	Given my finding in the previous paragraph, I think it is likely that Oak tree T29 would have a dominating and oppressive effect on the future occupiers of the proposal, in terms of their living conditions, resulting in them making applications to fell or substantially reduce the tree.  As I have already indicated, I consider that the tree makes an important contribution to the verdant character and appearance of the area.  In my experience, given the impact of the tree, it would be difficult for the Council to refuse such applications.  I therefore conclude that the proposal is likely to result in the loss or substantial reduction of protected Oak tree T29 which would result in significant harm to the character and appearance of the area which is an Area of Special Local Character, contrary to Policies BE13, BE19, BE23 and BE38 of the UDP. …”
In other words, because, again, the garden to the south was now Oakhurst’s only garden, either T29 would be substantially reduced or felled, which was unacceptable, or it would remain, in which case Oakhurst would have insufficient “amenity area”.
4.	I should note, for reasons that will become apparent, that those grounds directly reflected part of the reasons for the Council’s “shadow” refusal.  “Reason for refusal 3” in relation to application A reads:
“The proposal involves the loss of the side garden area which is currently used by the occupiers of ‘Oakhurst’.  With the subdivision of the plot, the occupiers of Oakhurst would be more reliant on the amenity space to the rear which is dominated and shaded by an Oak tree (T29).  The shade effect and dominance of the Oak Tree (T29) would have an adverse impact on the living conditions of future occupiers of Oakhurst particularly when the Oak tree is in leaf.  As such, and given that there is very little mitigation due to the loss of the lawn at the side of the existing house, future occupiers of Oakhurst in order to allow more light to enter their garden, would be likely to seek the removal, or at least the substantial reduction, of the protected tree, which the LPA would find difficult to resist.  The proposed development would therefore not afford adequate amenity space of Oakhurst and be likely to result in the indirect loss or substantial reduction of a valuable, protected tree …”
Likewise, in relation to application B the relevant reasons for refusal read:
“a. Reason for refusal 3:
The proposed rear amenity area would be overshadowed by protected trees on and close to the site to such an extent that the area would not afford sufficiently usable space for its future occupiers.  … As such, the proposal is contrary to Policy BE23 of the adopted Hillingdon UDP Saved Policies (September 2007).
b.	Reason for refusal 4:
The proposal would involve the retention of a smaller rear garden at the rear to serve Oakhurst.  Given that the retained space would be dominated and shaded by a protected oak tree (T29), the proposal would result in pressure to remove or substantially reduce this tree which the LPA would find difficult to resist …”
Those reasons in turn reflect in condensed form the reports of the Council’s Tree Officer and of the Head of Planning and Enforcement Services.
5.	The Claimant challenges that reasoning on six grounds, which I consider in turn.
Ground 1
6.	It was, as appears above, fundamental to the Judge’s reasoning that Oakhurst would lose the benefit of the area of garden to the west (the side-lawn), since it is that loss which would render it so important for future occupiers to have full enjoyment of the area to the south.  The point made under ground 1 is that that is simply fallacious because the loss in question would not occur as the result of the grant of permission in either appeal: it had already occurred as the result of the sale of the adjacent land.  The two plots were now in separate ownership, and even if permission were refused on application A Oakhurst would still only have the area of garden to the south.  The position was, if anything, a fortiori as regards application B: whereas if the adjacent land were not permitted to be developed the occupiers of Oakhurst might in practice retain the use of it, preventing the development of Oakhurst itself could not on any view improve the situation.  The Inspector appeared entirely to have overlooked this point and to have proceeded on the basis that the side-lawn remained part of the garden currently enjoyed by Oakhurst: see the reference at paragraph 10 to “the proposal” removing “part of what is now part of the garden of Oakhurst” and at paragraph 34 to “the proposal” having “a much smaller curtilage than that currently enjoyed by Oakhurst”.  
7.	Mr White conceded that the error in question was one of fact, and so prima facie not amenable to appeal under section 288.  But he contended that it was nevertheless classifiable as an error of law on the basis explained by Carnwath LJ in his well-known judgment in E v Secretary of State for Home Department [2004] QB 1044.  The relevant passage reads:
“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from [our] analysis of R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330.  First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.”
All four elements were present in this case.  In particular, as regards the second, it was a matter of record that Oakhurst and the adjacent land were now in separate ownership: although no Land Registry extracts had been in the papers before the Inspector, the position was apparent from the “Unilateral Planning Obligation” deed lodged in relation to appeal A, which names the members of the family and the Claimant separately and spells out their relationship as owners and option-holder respectively.  In any event, the Planning Appeal Form itself, in section I, where the applicant is required to certify that he has notified any owners of any part of the land, names the family as owners.
8.	The response of Ms Davies was essentially twofold.
9.	First, she submitted that it was not established that there had in truth been any mistake.  Although no doubt the freehold title of Oakhurst and the adjacent land were now in different hands, it did not follow that the occupiers of Oakhurst would not continue to enjoy the benefit of the side-lawn – which was the crucial question from the point of view of the Inspector’s reasoning – even if permission were refused.  The family were not occupying or using it.  They had granted an option to the Claimant (and indeed a licence).  Its only value as a separate plot was if it were permitted to be developed.  If permission were not granted, it would in practice continue – under one form of legal arrangement or another – to form part of the curtilage of Oakhurst (as indeed the Claimant itself described it: see below).  
10.	Secondly, Ms Davies submitted that, even if there was a mistake, the responsibility was that of the Claimant or its advisers, so that the third of Carnwath LJ’s conditions was not met.  The argument based on the reduction in the garden of Oakhurst, and the consequent risk to T29 had originated in the Council’s “shadow” reasons for refusal - see paragraph 4 above -and it was squarely before the Inspector.  If that argument was based on the misconception now alleged it had been the responsibility of the Claimant to point that out in its submissions to the Inspector.  It did not do so.  Instead, it proceeded on the basis that the two plots were at present a single “site” - so that “the proposal”, i.e. the development of the adjacent land, would indeed reduce “the curtilage of Oakhurst” - but it argued that this consequence was not unacceptable.  Ms Davies identified many passages in the appeal documents to this effect, but I need give only two by way of example:
(a)	At para. 5.8 of the appeal statement in relation to Appeal A, having recited in the previous paragraph that “the site forms part of the curtilage of Oakhurst”, the Claimant says “the proposal would leave Oakhurst with a substantial plot, thus preserving the residential amenities of its residents”.
(b)	At para. 5.24, having identified in the previous paragraph the Council’s contention that “the proposal would provide Oakhurst … with a reduced garden”, leading to pressure to fell T29, it relies on the opinion of its arboricultural expert to the effect that the impact of T29 on the remaining garden was acceptable.
Thus the Claimant positively reinforced the error (if it was one) in the Council’s understanding of the position.  It could not now complain if the Inspector proceeded on a basis which had been common as between the parties.  
11.	I prefer Ms Davies’ submissions.  It is clear that the appeal proceeded before the Inspector on the basis that the adjacent land was part of the curtilage of Oakhurst so that if permission were refused on appeal A it would continue to enjoy the use of the entire remaining garden.  In those circumstances I do not see how it can be said to be unfair (that being the root of the principle expressed in E) for him to decide the appeal on that basis, even if it was mistaken. If the Claimant had wanted to contend that even if the development were not to proceed the adjacent land would remain divided from Oakhurst, that is certainly a proposition that would have had to be properly explained, and if necessary explored by the Inspector.  But I am in any event far from sure that the way the appeal proceeded did not reflect the reality of the situation: for the reasons given in paragraph 9 above, it was in truth likely to be the development of the adjacent land, and not the division of the legal title, which would determine whether Oakhurst lost the use of the side-lawn.  The Claimant’s failure to argue otherwise is more likely to reflect a sensible recognition of that fact rather than to be the result of some inexplicable error in its presentation of its case.  
12.	I should add one footnote.  I was initially puzzled by why, even if the Inspector was entitled to dismiss appeal A for the reason that he did, it was necessary to dismiss appeal B too.  If the adjacent land was left undeveloped (and thus, as he understood, remained part of the curtilage of Oakhurst), the problems about tree T29 which were the only basis for refusing permission on appeal B would fall away.  When I put this point to Ms Davies her response was that application B was specifically in relation to the plot identified in the plans submitted, which did not include the side-lawn: a proposal to re-build Oakhurst as part of a plot which included the adjacent land would be a different proposal.  Mr White did not contradict this submission, and I think I must accept that it is formally correct.
13.	I therefore reject ground 1.
Ground 2
14.	The Claimant’s case under this ground is that it was perverse of the Inspector, having laid such stress on the value of tree T29, to find that there was a real risk that it would be permitted to be felled or drastically reduced: the two propositions are said to be contradictory.  I cannot accept this.  The value of a protected tree is not an absolute.  I see nothing impossible in the proposition that the tree would be safe if it did not seriously impinge on the amenities of the owners of Oakhurst but vulnerable if it did.  That the latter was the case was the view not only of the Inspector, who avowedly relied on his own experience, but also of the Council’s Tree Officer: see paragraph 4 above.
Ground 3
15.	The case under this ground is that the Inspector’s decision was flawed because he did not refer to the publication which sets out the Government’s policy advice on the TPO system, entitled Tree Preservation Orders: A Guide to the Law and Good Practice.  There is nothing in this point.  It is trite law that an Inspector’s decision is not bad in law simply because he does not expressly refer to a relevant guidance document.  But in any event Mr White was unable to identify any passage in the Guidance which had any specific reference to the situation under consideration.  He showed me para. 6.45, which says:
“6.45	In considering applications the LPA are advised:
(1)	to assess the amenity value of the tree or woodland and the likely impact of the proposal on the amenity of the area, and 
(2)	in the light of their assessment at (1) above, to consider whether or not the proposal is justified, having regard to the reasons put forward in support of it.
… In general terms, it follows that the higher the amenity value of the tree or woodland and the greater the impact of the application on the amenity of the area, the stronger the reasons needed before consent is granted.  On the other hand, if the amenity value of the tree or woodland is low and the impact of the application in amenity terms is likely to be negligible, consent might be granted even if the LPA believe there is no particular arboricultural need for the work.”
There is nothing in those unexciting generalities that is inconsistent with the Inspector’s judgment of the likely outcome of an application to fell or reduce T29.
Ground 4
16.	It is said under this head that the Inspector gave inadequate reasons for his decision.  He did not refer to the report of the Claimant’s expert, who had expressed a different view, or to the argument that the development of the southern part of the garden had been permitted in 2008 even though the gardens of the two new houses would also have trees in them.  I do not agree.  As Ms Davies succinctly put it in her skeleton argument:
“The Inspector’s reasons on this point are entirely clear:
a.	Oak tree T29 has a high amenity value.
b.	However, it would give rise to a significant level of overshadowing of the only remaining amenity area of Oakhurst, in particular that part closest to the house and likely to receive the most use.
c.	That would have a “dominating and oppressive” effect on the living conditions of the future occupiers.
d.	In the Inspector’s experience, such an effect meant that it was likely to be difficult for the LPA to refuse consent to fell or reduce the tree.”
There was no need to refer explicitly to the expert’s report, which had simply expressed a different (unreasoned) view on what was a matter of opinion – and not specifically arboricultural opinion either.  As for the trees in the gardens of the new houses, the Inspector said at para. 12 of his decision that he believed their impact would be less.  
Ground 5
17.	The Claimant’s point here is that the threat to tree T29 was the same even if the proposals did not proceed.  This depends on essentially the same point as ground 1.  If the Inspector was, as I have held, entitled to proceed on the basis that if the proposals were refused Oakhurst would still enjoy the use of the side-lawn then the premise of the argument is not established.
Ground 6
18.	The Claimant complains that it “was not afforded any opportunity to address” what turned out to be the key issue, namely whether pressure to fell or reduce T29 could have been resisted by the Council.  I cannot accept this.  As set out at paragraph 4 above, this point was squarely made by the Council in its shadow reasons for refusal in both applications.  The Claimant was thus fully on notice of the point.  Not only did it have the chance to address it, but it did so, inasmuch as it argued in its appeal document that there would be no legitimate pressure to fell or reduce T29 because it had no serious impact on the amenity of the remaining part of the garden.  
Conclusion
19.	I accordingly dismiss the appeal.