Evans v Waverley Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 12 July 1995 |
| Date | 12 July 1995 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Neill, Lord Justice Roch and Lord Justice Hutchison
Planning - tree preservation order - confirmation power limited
Although the power to modify a tree preservation order under section 199(1) of the Town and Country Planning Act 1990 should be construed widely, it was unlawful for a planning authority when confirming such an order to substitute a "woodland" order for what had originally been an "area" order, since the substitution produced a completely different order.
The Court of Appeal so stated allowing an appeal by the landowner, Glyn Evans, from Mr Nigel MacLeod, QC, who, sitting as a deputy High Court judge, had on March 23, 1995 dismissed Mr Evans' application under section 288 of the 1990 Act to quash a tree preservation order made by Waverley Borough Council dated September 23, 1994.
Mr Evans owned property near Farnham called Bourne Mill. Following expressions of concern from residents in the area about work he was doing on the land over Easter 1994, the council made a tree preservation order (TPO) in respect of the site on the ground that it was in the interests of the visual amenities of the area.
The original order specified an "area of mixed broadleaved trees (including willow and alder) and conifers" which on confirmation was changed to "woodland comprising mixed broadleaved trees (including willow, alder, ash and sycamore) and a scots pine".
The judge had held that the modification was one which should not be regarded as so significant as to take it outside the powers of section 199(1).
Section 199 of the 1990 Act provides: "(1) A tree preservation order shall not take effect until it is confirmed by the local planning authority and the local authority may confirm any such order either without modification or subject to such modifications as they consider expedient."
Mr Brian Ash, QC and Mr Keith F Wylie for the landowner; Miss Nathalie Lieven for the council.
LORD JUSTICE HUTCHISON said that Mr Ash asserted that the judge was right to have adopted from Britnell v Secretary of State for Social SecurityWLR((1991) 1 WLR 198) the proposition that the power to confirm with modification should be narrowly and strictly construed.
Miss Lieven was right to argue that Britnell and the other cases relied on by the judge were not authority for such a proposition. What they showed was (i) that a power to modify conferred a right to...
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