Dairy Crest Ltd v London Borough of Merton
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 09 July 2015 |
| Neutral Citation | [2015] EWHC 2468 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1414/2015 |
| Date | 09 July 2015 |
[2015] EWHC 2468 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Lewis
CO/1414/2015
Mr M Reed (instructed by Richard Max & Co) appeared on behalf of the Claimant
Mr D Smith (instructed by the London Borough of Merton) appeared on behalf of the Defendant
(As Approved)
This is an application pursuant to section 288 of the Town and Country Planning Act 1990 to quash a tree preservation order made by the defendant, the London Borough of Merton, on land to the rear of Milk Depot, 53 Gap Road, Wimbledon, in London. The tree preservation order was initially made by a planning officer. It was confirmed by the relevant committee of the defendant on about 12 February 2015. The order provides that no person shall cut down, lop, top, uproot, wilfully damage or wilfully destroy the trees specified within the schedule to the order. The schedule itself specifies an area of woodland which is marked as W1 on a map attached to the order. As a result, no tree within the area designated as woodland may be cut down, destroyed, or damaged.
The principal complaint of the claimant is that the committee which confirmed the tree preservation order did not consider, or did not have adequate information to deal with, an objection that it made that the area did not in fact merit designation as woodland. The claimant also makes a series of other complaints.
Dealing first with the statutory framework, section 198(1) of the Town and Country Planning Act 1990 provides as follows:
"1. If it appears to a local planning authority that it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area, they may for that purpose make an order with respect to such trees, groups of trees or woodlands as may be specified in the order.
2. An order under subsection 1 is in this Act referred to as a tree preservation order."
Section 202B of the Act provides that tree preservation regulations may make provisions about the form of tree preservation orders, the procedure to be followed in connection with the making of tree preservation orders, and when a tree preservation order is to take effect. The relevant regulations in England are the Town and Country Planning (Tree Preservation) (England) Regulations 2012. Regulation 3 deals with the form of tree preservation order and provides that an order should be in the form set out in the schedule to the regulations, or in a form substantially to the same effect, and says the order:
"(a) shall specify the trees, groups of trees or woodlands to which it relates; (b) where the order relates to a group of trees it should specify the number of trees of each species in the groups; (c) it should indicate the position of the trees, groups of trees or woodlands, as the case may be, by reference to a map."
Regulation 4 provides that the order shall not take effect other than provisionally unless and until confirmed by the authority, and that must be done within a period of six months beginning on the date when the order was made. Until confirmed it has provisional effect during that period of six months. Regulation 5 deals with the procedure after making an order and requires service on the persons interested in the land.
Regulations 6 and 7 are important. Regulation 6 says this:
"6. Objections and representations
1. Subject to paragraph 2, objections and representations —
(a) should be made in writing and —
(i) delivered to the authority not later than the date specified by them under regulation 5(2)(c); or
(ii) sent to the authority in a properly addressed and prepaid letter posted at such time that, in the ordinary course of the post, it will be delivered to them not later than that date;
(b) shall specify the particular trees, groups of trees or woodlands (as the case may be) in respect of which such objections and representations are made; and
(c) in the case of an objection, shall state the reasons for the objection.
2. The authority may treat as duly made objections and representations which do not comply with the requirements of paragraph 1 if, in the particular case, they are satisfied that compliance with those requirements could not reasonably have been expected."
Regulation 7 deals with the provision for confirmation of a tree preservation order. The important subregulation is 7(1), which provides:
"The authority shall not confirm an order which they have made unless they have first considered objections and representations duly made in respect of it and not withdrawn."
Turning to the facts of the case, the defendant received a letter dated 15 August 2014 from a Dr Russell who lives in property close to the land in question. That letter said that he believed the land was currently being sold to developers. It said there was a whole range of trees in the area of different species and maturities and invited the authority in effect to take appropriate action in relation to that information.
The tree and landscape officer, Miss Rose Stepanek, considered the letter and the material provided. She decided it was worthy of further consideration. She therefore carried out a site visit on 27 August 2014 to inspect the trees on the site from various vantage points. She describes in her witness statement the various steps that she took. The officer then made a tree preservation order under delegated powers. As I have indicated, that order prohibits the cutting down, damaging or destruction of the trees in the schedule. The trees in the schedule are designated as woodlands and the area is given as the area of woodland marked W1 on the map and located to the rear of the Dairy Crest Milk Depot at 53 Gap Road in Wimbledon.
Following the making of that order, the claimant, Dairy Crest, did make an objection in writing in accordance with the provisions of regulation 6 of the 2012 regulations. It did state its reasons for the objection. By letter dated 14 October 2014, Mr Duncan Good, a consultant acting on behalf of Dairy Crest, said this:
"Please accept this letter and enclosures as a formal objection to the making of the tree preservation order entitled tree provision order (no 665)"
that is the order in question.
Paragraph 2 of the letter says the TPO affects part of the site and he wished to object to it on the grounds that it did not accord with government guidance and was an inappropriate use of the council's powers, given that there is no appeal procedure or external oversight when TPOs are made. The letter asked the recipient to forward the objection and the attached report to the members who would be considering the confirmation of the TPO so the matter could be properly considered.
Reading that letter fairly, it is in my judgment clear that the objection comprises both the letter and the attached report. The report was prepared by a Mr Tim Moya, who is an arboriculturalist. It sets out a summary of objections in section 1. 1.2 says the report supports an objection to the tree preservation order on certain grounds, firstly that the area protected, a group of trees, is on it in an area which comprises just 15 per cent of the area within the designated area. It also says this:
"The TPO does not contain trees or ecological features which warrant the making of a woodland TPO. The reasons given for making the TPO do not apply and the TPO is contrary to government guidance and local policy."
Then at 1.3 the report says that the author's conclusion is that the woodland designation is inappropriate.
There is then an introduction which described the property. It also describes the trees. There is a map showing that in effect the trees are in the central area of the site as a whole and there is also an oak tree to the north. It says that the remaining area of land outside that group of trees contains scrub and very young trees, and there are also some trees on the railway embankment adjoining the site to the south.
At section 3 of the report, Mr Moya sets out an extract from the relevant government guidance on tree preservation orders. It noted the government guidance that TPOs must specify the trees or woodlands as being within four categories: individual trees, an area of trees, a group of trees or woodland. It sets out the provisions of the guidance, saying that the woodlands category's purpose is to safeguard a woodland as a whole. It sets out the following sentence:
"It is unlikely to be appropriate to use the woodland classification in gardens."
Section 4 of the report then turns to the tree preservation order. It begins by looking at the reasons for making the order. At paragraph 4.1 it notes that in particular no justification has been given for the making of a woodland tree preservation order rather than a tree preservation order containing either individual trees of merit, or an area of trees or a group of trees. Under a heading, "Errors in the TPO", 4.3 says, amongst other things, that the outline of the tree preservation order includes areas without any tree growth.
At section 5 of the report, there is a discussion of these issues. 5.2 notes that it is important that a woodland designation is used responsibly, and in particular that it is not used to protect areas of land as woodland that do not contain trees, or are not woodland. It notes that this TPO protects areas without any trees, and which do not contribute to local amenity, as if they were established woodland. 5.3...
To continue reading
Request your trial
-
Petition By The Co-operative Group Ltd For Judicial Review
...on Drumchapel town centre. Counsel for the petitioner drew attention to the cases of Dairy Crest Limited v London Borough of Merton [2015] EWHC 2468 (Admin) and R (on the application of Langley Park School for Girls) v Bromley LBC [2010] 1 P. & C. R. 10 as illustrations of the importance of......