John Ernest Mills v The Secretary of State for the Environment and Another (First Respondent) Maidstone Borough Council (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY JUDGE |
| Judgment Date | 14 January 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0114-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 January 1998 |
| Docket Number | CO/3057/97 |
[1998] EWCA Civ J0114-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
The Strand
London
Mr Malcolm Spence QC
(Sitting as a Deputy Judge of the Queen's Bench Division)
CO/3057/97
and
MR MEYRIC LEWIS (instructed by Messrs Colin Hayward & Co, Ashford, Kent TN24 8JR) appeared on behalf of THE APPLICANT
MR J0NATHAN KARAS (instructed by the Treasury Solicitor) appeared on behalf of THE FIRST RESPONDENT
MR ADRIAN TAYLOR (instructed by the Solicitor to Maidstone Borough Council) appeared on behalf of THE SECOND RESPONDENT
Wednesday 14 January 1998
Bicknor Wood extends to about eight and a half acres and lies near Maidstone. It was made the subject of a tree preservation order under the Town and Country Planning Act 1971, which order was confirmed in 1982 and called TPO37 of 1981. It comprises mainly coppiced areas of sweet chestnut with occasional ash and birch. There are also some standard trees which are all oak. In May 1984 consent was granted in respect of three tree preservation orders, but with respect to number 37 for the felling and arguably grubbing out of the coppice trees. In June 1984 the second respondents wrote a letter concerning this consent, saying:
"The chestnut coppice in Bicknor Wood within your ownership may be grubbed as specified on the application although all the standards, many of which are oak trees, must remain."
In June 1987 a planning officer wrote a note as follows:
"Mr Mills showed me the consent dated 17 May 1984 and Mr Lowe's letter of 17 June 1984. He drew my attention to the fourth paragraph thereof by reference to the application dated 28 March 1984 and attached schedule it is clear that the consent allows grubbing of the coppice, although it is not specifically mentioned in the approval."
Not much work was done until 1995. The second respondents then became alarmed at the effect which this was having on the amenities and also the wild life of the area. Accordingly, in August 1995, they made an order modifying the consent so as to revoke it in respect of TP037 (I shall henceforward call it "the revocation order"). The applicant, whose wood this is, objected. A well qualified expert was asked to advise the Secretary of State and he did so. The most relevant paragraphs of his appraisal were as follows:
"13. Although the felling and grubbing out of much of the coppice area of wood has altered the internal appearance, from external views Bicknor Wood still provides considerable visual amenity, with the large standard trees clearly visible from surrounding roads and the boundary hedges and remaining areas of uncut coppice also forming an important part of the landscape. As the recently cut coppice regrows, it too will add to the amenities of the area.
….
20. The areas of uncut coppice do provide considerable amenity and a high quality habitat for a wide range of flora and fauna. The areas of recently cut coppice with the stools remaining will readily regrow to provide visual amenity and wildlife habitat.
….
23. There has been large scale clearance of the coppiced areas since the 1984 consent for deadwooding and felling, with only the remnants of the coppice areas remaining together with good quality but scattered standard trees and gappy boundary hedges."
His final conclusion was as follows:
"27. There has been a greater awareness of the importance of the environment and visual amenity since the original consent was granted, and the removal of the renewing coppiced areas would detract from the amenities of the area."
The Secretary of State wrote a letter dated 17 July 1997 referring to the Inspector's report, rehearsing the applicant's and the second respondent's cases, in particular referring to the alleged ambiguity of the original consent and the question of whether the development plan policies had changed. I shall read part of paragraph 5, which is a summary of part of the applicant's case:
"As a result of the grubbing and felling carried out under the consent the wood no longer exists as a coherent woodland coppice and the landscape value placed on it no longer exists. The fragments of woodland which remain are out of character with what is now a mature parkland setting and make no material contribution to wildlife conservation. Furthermore, the remaining patches of coppice are unlikely to be commercially viable in the future."
The decision letter continued:
"6. The Secretary of State has given full consideration to all the representations and the Inspector's report. He notes the alleged ambiguity of the original consent and the difference in its interpretation between your clients and the Council. However, he does not consider that this is a matter for him to determine. He also notes the views offered by both parties on the merits of the original decision and the question of whether development plan policies have materially altered since the consent was given. He considers that these issues are not directly relevant to the matter before him and he has therefore taken no view on them.
7. The Secretary of State has therefore based his decision on whether it is expedient for the consent to be modified in the circumstances which prevail at the present time. He accepts the Inspector's view that although there has been large-scale clearance of the coppiced areas since 1984, what remains still provides considerable public amenity and wildlife habitat. He considers that the grubbing out of the remaining coppice would damage the visual amenities of the area and he has therefore decided to confirm the modification order."
Mr Lewis on behalf of the applicant now challenges the confirmation of the order under section 288 of the Town and Country Planning Act 1990. The power to make tree preservation orders is contained in section 198 of the Act. Subsection (1) reads as follows:
"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."
The form of such orders is provided for by regulations made under section 199(2). The relevant regulations are the Town and Country Planning (Tree Preservation Orders) Regulations 1969. Regulation 4(1) requires an order to be substantially in the form set out in the schedule to the regulations. This includes article 8 which provides for application of the third schedule. This includes sections taken from the Town and Country Planning Act 1971. Section 45 reads as follows:
"(1) If it appears to the authority that it is expedient to revoke or modify any consent under the order granted on an application made under article 3 of the order, the authority may by order revoke or modify the consent to such extent as they consider expedient.
(2) Subject to the provisions of section 46 and 61 of the Act, an order under this section shall not take effect unless it is confirmed by the Secretary of State; and the Secretary of State may confirm any such order submitted to him either without modification or subject to such modifications as he considers expedient."
I accept Mr Lewis' submission that the syntax of this subsection is that the words "as he considers expedient" qualify only the words "either without modification or subject to such modifications" and not the earlier words particularly "may confirm".
Compensation is payable under article 9 which reads:
"Subject to the provisions of this Order, any person who has suffered loss or damage in consequence of any refusal (including revocation or modification) of consent under this Order …. shall …. be entitled to recover from the authority compensation in respect of such loss or damage."
The challenge which is made to the confirmation of this order relates to section 45(2), particularly in respect of the word "expedient".
Before turning to Mr Lewis' submissions, there are two preliminary matters I must mention. First, the ambiguity of the 1984 Tree Preservation Order consent. The Secretary of State did not resolve this ambiguity, and I am not called upon to do so either. I am told it was granted by the duly authorised Chief Officer under his delegated powers. On the face of it it says:
"…. the District Planning Authority has GRANTED CONSENT to 'dead wood' and fell the trees forming part of Tree Preservation Order …. No 37 of 1981 as specified on drawing received 29 March 1984 …."
No other documents are incorporated, not even the application. The drawing does not assist on the question as to whether the trees were to be felled or grubbed. However, the application, which I shall not describe in any detail, was, I accept, unambiguously to grub the coppice. The construction of the notice of consent therefore raises in acute form the principle that one is not entitled when construing a permission to look at any documents not incorporated with it unless the notice of permission is itself ambiguous. One is probably not entitled to look at the letter of June 1984 written by a more junior officer to assist in construction. In the premises I do not need to say any more.
Secondly, the question of whether the development plans have materially altered since 1984. Policy CC5 of the Kent structure plan, approved by the Secretary of State and operative from January 1984, read as follows:
"(i) In consideration of proposals for development or for tree felling in the countryside...
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