Barnsley Metropolitan Borough Council v Hadfield
| Jurisdiction | England & Wales |
| Neutral Citation | [2018] EWHC 866 (QB) |
| Year | 2018 |
| Date | 2018 |
| Court | Queen's Bench Division |
Planning - Tree preservation order - Injunction - Local planning authority applying for final injunctive relief to restrain offences relating to tree preservation order - Whether tree preservation order in respect of trees in parkland covering new growth - Whether order breached - Principles to be applied in determining whether injunction to be granted - Whether injunction proportionate and appropriate -
In 1953 the local planning authority’s predecessor made a tree preservation order prohibiting the cutting down, topping, lopping or wilful destruction of trees on an area designated as parkland without the authority’s consent. In 2017, following damage to trees on the site, the local planning authority sought an injunction under section 214A of the Town and Country Planning Act 1990F1, as inserted, restraining the defendant landowner from causing further damage to the trees on the site, on the ground that offences had been committed and the defendant would persist with more of the same, or similar or related, activities in the future, contrary to section 210 of the 1990 Act. The planning authority obtained an interim injunction which was continued until trial.
On the planning authority’s application for a final injunction—
Held, granting the application in part, (1) that, in determining which trees on the land fell within the scope of the tree preservation order, it was necessary to determine whether, on its true construction, the order covered not just those trees which had been present when the order had been made, but also subsequently planted trees, or new growth, seedlings or saplings from the existing trees; that the order under consideration, properly construed, did not cover new growth since it was directed at trees occupying parkland as opposed to woodland; and that, accordingly, the order did not apply to trees which had not existed in the parkland at the time the order had been made (post, paras 69, 81).
(2) That, in deciding whether final injunctive relief should be granted to restrain breaches relating to tree preservation orders, the principles set out in more familiar planning cases applied by analogy; that it followed that the court (i) was not concerned with the merits of the order, (ii) had to contemplate the prospect of committing the defendant to prison if he breached the injunction, so that the question arose whether an injunction was a proportionate and appropriate sanction, (iii) had to have regard to the enforcement of planning control, of which the restraint of tree preservation order offences were part, in the public interest and have regard to the nature of the breach, but (iv) might be reluctant to use its coercive powers if other enforcement action had not been taken; that the defendant’s actions and those of others for whom he was responsible had caused wilful damage to five protected trees, in breach of the order; that such activity, if repeated in deliberate defiance of an injunction, would undoubtedly warrant consideration of imprisonment; that a final injunction was therefore appropriate and proportionate; and that, accordingly, the local planning authority would be granted a permanent injunction to protect the five trees which existed at the time of the order (post, paras 82–83, 95–96, 98).
The following cases are referred to in the judgment:
Barney-Smith v Tonbridge and Malling Borough Council
Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government
Evans v Waverley Borough Council (
Palm Developments Ltd v Secretary of State for Communities and Local Government
South Bucks District Council v Porter
The following additional cases were cited in argument or referred to in the skeleton arguments:
City of London Corpn v Bovis Construction Ltd (No 2) [
South Cambridgeshire District Council v Cooke
Wealden District Council v McCreadie
APPLICATION under section 214A of the Town and Country Planning Act 1990
By a CPR Pt 8 claim form dated 20 April 2017 the local planning authority, Barnsley Metropolitan Borough Council, applied under section 214A of the Town and Country Planning Act 1990, as inserted, for an injunction against the defendant, Wayne Hadfield, and another, Craig Fox, to restrain them from causing damage to trees in Worsbrough Wood, Worsbrough Park, Worsbrough, Yorkshire. On 13 April 2017 Judge Platts, sitting as a judge of the Queen’s Bench Division, granted the planning authority an interim injunction. On 24 April 2017 Judge Gore QC, sitting as a judge of the Queen’s Bench Division, continued the injunction until trial. By an order dated 13 October 2017 Craig Fox was released from the injunction.
The planning authority sought a final injunction against the defendant on the ground that, on the evidence, offences had been committed and the defendant would persist with more of the same, or similar or related, activities in the future, contrary to section 210 of the 1990 Act.
The facts are stated in the judgment.
Christopher Royle (instructed by
The defendant in person, assisted by a McKenzie friend.
The court took time for consideration.
16 February 2018. GARNHAM J handed down the following judgment.
Introduction1 On 11 August 1953 the Urban District Council of Worsbrough, in exercise of powers delegated to it by the County Council of the West Riding of Yorkshire, made a tree preservation order in respect of trees situated in an area known as Worsbrough Park, Worsbrough, in Yorkshire. The present local planning authority for Worsbrough is Barnsley Metropolitan Borough Council. On 17 March 2017 Mr Wayne Hadfield and Mr Craig Fox purchased land known as Worsbrough Wood, which is part of Worsbrough Park.
2 On 28 April 2017 Barnsley Metropolitan Borough Council commenced High Court proceedings against Mr Hadfield and Mr Fox seeking injunctive relief and alleging that, contrary to regulation 13 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012 (SI 2012/605), Mr Hadfield and Mr Fox had been cutting down, topping, lopping, uprooting, wilfully damaging and/or wilfully destroying trees on their land in breach of the tree preservation order (“TPO”).
3 That same day Judge Platts, sitting as a judge of the Queen’s Bench Division, granted the council an interim injunction restraining Mr Hadfield and Mr Fox from causing further damage to trees in the woodlands until a further order of the court. On 24 April 2017 Judge Gore QC, sitting as a judge of the Queen’s Bench Division, continued that injunction until trial. By agreement, Mr Fox has been released from that injunction and has not featured further in this litigation.
4 On 14 February 2018 the matter came on for trial before me. The issue I have to decide is whether a final injunction should be granted permanently to restrain the defendant from breaching the TPO. The evidence and argument finished yesterday at about 4.30 pm and I have considered the matter overnight and now give judgment.
Representation at the trial and applications5 The applicant council was represented before me by Mr Christopher Royle of counsel. I thank him for his assistance. The defendant, Mr Hadfield, appeared in person. However, he had with him a gentleman called, appropriately enough, Mr McKenzie, who Mr Hadfield wanted to act as his McKenzie friend. I granted Mr McKenzie permission to act in that capacity and I thank him for his assistance. If I may say so, he acted quietly, efficiently and effectively, and made a significant contribution to the conduct of this case.
6 On occasion, Mr Hadfield became somewhat irritated and irritable with those representing the council and with the court, and I was grateful for Mr McKenzie’s steadying influence. In respect of some witnesses, I allowed Mr McKenzie, exceptionally, to ask questions on Mr Hadfield’s behalf because it seemed to me that was in the best interests of the orderly conduct of these proceedings.
7 Before the substantive hearing in this case could commence, four applications were advanced before me. The first was an application by the council to rely on an addendum to the report from its expert arborist. The second application was for an order granting the council permission to amend the claimed relief. The third was for an order extending to 12 February 2018 the deadline provided for by CPR r 33.2(4) for the council to serve notice pursuant to rule 33.2(2) of its intention to rely on hearsay evidence; namely the witness statement of PC Richard Pell dated 6 April 2017.
8 The fourth application was for an order, pursuant to CPR r 23.7(4), that the service of an unsealed copy of that application and supporting evidence of the defendant’s McKenzie friend and supporting evidence on the defendant’s McKenzie friend, namely Mr McKenzie of Gateway Advisers, by e-mail on 13 February 2018 should constitute sufficient notice of the application.
9 Mr Hadfield indicated to me through Mr McKenzie that he consented to each of the four applications and I granted them all. In my judgment, in the circumstances of this case, the interests of justice justified...
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