Newport Borough Council v Khan
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD,LORD JUSTICE BELDAM |
| Judgment Date | 24 May 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0509-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 1990 |
| Docket Number | 90/0388 |
[1990] EWCA Civ J0509-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWPORT (GWENT) COUNTY COURT
(HIS HONOUR JUDGE TOM CROWTHER Q.C.)
Royal Courts of Justice
Lord Justice Lloyd
Lord Justice Beldam
90/0388
THE APPELLANT (First Defendant) appeared in person.
MR KEITH BUSH, instructed by The Solicitor, Newport Borough Council, appeared for the Respondent (Plaintiff).
MR GUY SANKEY appeared as Amicus Curiae.
In this case we have been concerned with methods of enforcing a tree preservation order. In November 1988 the first defendant Mr Sabz Ali Khan purchased a property at 2 Oakfield Road, Newport. There are a number of trees of different species on the property which are said to add greatly to the amenity of the area. There was no tree preservation order in force when Mr Khan bought the property, but the house is situated in a conservation area. Immediately opposite the house stands the new Crown Court, and the municipal offices are also to be found in the neighbourhood.
Soon after purchasing the property Mr Khan decided to cut the branches of a yew tree standing in the front garden which he regarded as dangerous. There was a complaint. Mr Hasan, the senior development control officer employed by the Newport Borough Council, visited the property on 18th April 1989. He found workmen engaged in cutting branches. He told them to stop. He made a tree preservation order the same day with the authority of the Chairman of the Planning Committee. It covered 15 trees in the garden to the front and side of the house. The yew tree was T15. By clause 13 of the tree preservation order, it was provided that it should take immediate effect as a provisional order under section 61 of the Town and Country Planning Act of 1971. The date stated in clause 13 is 18th April 1989, so the order was still in force the following September, when the events occurred out of which these proceedings arise.
On 19th April the tree preservation order was served on Mr and Mrs Khan. On 20th April Mr Khan applied to the Council for leave to fell two of the 15 trees which he regarded as dangerous. In addition to the yew, there was a redwood, T6. That application did not come before the Council apparently until 11th August, when consideration of the application was deferred pending a site inspection. On 5th September Mr Khan, having heard nothing from the Council, wrote, saying that he intended to fell the yew tree on 10th September, thus giving the Council a further five days' notice. He employed a contractor for that purpose. It cost him £400.
Meanwhile on 8th September the Council at long last refused consent to Mr Khan's application and indeed resolved to prosecute Mr Khan for the work which he had already carried out without authority, in breach of the tree preservation order. That must be a reference to a mountain ash, T11, which Mr Khan says was little more than a bush.
In the very early morning of Sunday 10th September, Councillor Graham telephoned Mr Tapp, the chief executive, to tell him that men were at work cutting down the yew tree. Mr Tapp arrived on the scene at 8:10 a.m. Mr Khan was not there, but Mr Tapp introduced himself to the third defendant, Mr R.T. Roderick, who was the man in charge of the operation. He told the third defendant to stop. But the third defendant refused, whereupon the plaintiffs obtained an interim injunction from Judge Morgan the same day. That injunction was served on the defendants at 12 noon. But by that time the yew tree was no more than a stump.
On Monday 11th September the case came before His Honour Judge Crowther. The defendant gave an interim undertaking to the court, pending a further hearing on 14th September. On 12th September the plaintiffs served Particulars of Claim, in which they say they are entitled to damages in the sum of £5, 000 for loss of or damage to the amenity of the area. It is now conceded that such a claim for damages cannot possibly be sustained. On 14th September Judge Crowther accepted a further undertaking from Mr and Mrs Khan and granted an interlocutory injunction against the third defendant.
On 13th October Mr Khan gave notice of an application to be released from his undertaking and to discharge the injunction. His grounds were, first, that the statement of claim disclosed no cause of action known to the law, and second, that the County Court had no jurisdiction to grant an injunction, since the claim for an injunction was not ancillary to a viable claim for damages or other relief within the jurisdiction of the County Court, see section 38 of the County Courts Act 1984.
The hearing of that application came before Judge Crowther on 22nd November. He held that he had jurisdiction to grant an injunction, on the ground that the injunction was in respect of or relating to any land or the use or enjoyment of any land within the meaning of section 22 of the County Courts Act 1984. Accordingly he refused to release Mr and Mrs Khan from their undertaking and continued the injunction until trial. There is now an appeal to this court.
When the case came on for hearing before us, Mr Khan appeared in person to support his appeal. It seemed to us that the question of the jurisdiction of the County Court to grant an injunction in support of a tree preservation order might be one of some importance, as also might be the scope of the local authority's powers under section 222 of the Local Government Act 1972, and the proper exercise of the judge's discretion in a case such as the present. So we adjourned the hearing in order that we might seek the help of an amicus. At the resumed hearing Mr Guy Sankey has appeared in that capacity and has given us every possible assistance.
Section 22 of the County Courts Act 1984 provides:
"Subject to the provisions of this section, a county court shall have the same jurisdiction as the High Court to grant an injunction or declaration in respect of, or relating to, any land, or the possession, occupation, use or enjoyment of any land."
I need not refer to subsections ( 2) or (3). Section 222 of the Local Government Act 1972 provides:
"Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area—
(a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name."
I need not read the rest of that section.
Logically, the first question for our consideration is whether the High Court has jurisdiction to grant an injunction in a case such as this, seeing that the breach of a tree preservation order is a criminal offence for which Parliament has provided specific penalties. For if the High Court has no such jurisdiction, neither has the County Court.
It appears that there is no reported case in which the jurisdiction of the High Court to grant an injunction at the behest of the local authority in support of a tree preservation order has been directly in issue. The nearest case is Kent County Council v. Batchelor (No. 1) 75 Local Government Reports 151. In that case, Mr Justice Cusack or Mr Justice Chapman—it is not clear from the reports which—granted the plaintiffs an injunction to restrain a farmer from cutting down trees in breach of a tree preservation order. There was then an application to commit the farmer for contempt on the ground that he had disobeyed the injunction. Mr Justice Caulfield committed the farmer to prison for a month. His appeal was allowed by the Court of Appeal, but not, be it noted, on the ground that the injunction should never have been granted, but on the ground that there was insufficient evidence to establish a breach of the injunction. There was then a further application to commit. This time it was argued that there was no jurisdiction to grant the injunction. But Mr Justice Talbot held, in Kent County Council v. Batchelor (No. 2) [1979] 1 W.L.R. 213, that in view of the course that the previous proceedings had taken in the Court of Appeal, where it was assumed on all sides that there is jurisdiction to grant an injunction in a tree preservation order case, he was bound so to hold in the case before him.
In my judgment Mr Justice Talbot was right so to hold. If there remained any doubt, it was dispelled by Lord Templeman's speech in Stoke-on-Trent City Council v. B. & Q. (Retail) Limited [1984] 1 A.C. 754, where he referred at page 774 to the decision of Mr Justice Talbot with evident approval as a typical case in which the local authority is in the best possible position to judge whether it is expedient, in the interests of a particular locality, to apply for an injunction under section 222 of the Local Government Act.
So I would hold that the High Court does indeed have jurisdiction to grant an injunction at the behest of a local authority in support of a tree preservation order in an appropriate case. I will return to Lord Templeman's speech later, when I come to consider the principles which ought to govern the exercise of the jurisdiction.
The next question is whether, if the High Court has jurisdiction to grant an injunction in a tree preservation order case, as I have just held, the County Court has a similar jurisdiction by virtue of section 22 of the County Courts Act 1984. This depends on whether such an injunction would, if granted, be an injunction in respect of or relating to any land or the use of any land, having a rateable value of less than £1, 000. Once again there appears to be no reported case on this point, in...
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