Reuben Barney-Smith and Another v Tonbridge and Malling Borough Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lindblom,Lord Justice Elias
Judgment Date09 Dec 2016
Neutral Citation[2016] EWCA Civ 1264
Docket NumberCase No: C1/2016/0178

[2016] EWCA Civ 1264






Royal Courts of Justice

Strand, London, WC2A 2LL


Sir Geoffrey Vos, Chancellor of the High Court

Lord Justice Elias


Lord Justice Lindblom

Case No: C1/2016/0178

(1) Reuben Barney-Smith
(2) Royston Barney-Smith
Tonbridge and Malling Borough Council

Mr Alan Masters (instructed by Stokes Solicitors LLP) for the Appellants

Mr Richard Ground Q.C. (instructed by Tonbridge and Malling Borough Council) for the Respondent

Hearing date: 13 October 2016

Judgment Approved by the court

for handing down

(subject to editorial corrections)

Lord Justice Lindblom



In this appeal we must consider whether the judge in the court below was wrong to refuse to release the appellants, Reuben and Royston Barney-Smith, from the undertaking they gave to the court on 9 June 2008, by which they undertook not to "cut down[,] lop[,] top[,] damage[,] uproot or destroy … any tree" on their land, now known as Forest Hill Park, at Labour In Vain Road in Wrotham, Kent.


With permission granted by Treacy L.J. on 25 January 2016, Messrs Barney-Smith appeal against the order of Stewart J., dated 18 December 2015, refusing their application for release from the undertaking, after a hearing on 10 December 2015. The application had been resisted by the respondent, Tonbridge and Malling Borough Council.


The land to which the undertaking relates, "land east of New Bungalow[,] Butts Hill Farm[,] Labour In Vain Road …", has a long planning history. On 20 May 1983 the council granted planning permission for the continuation of use of part of that land as a caravan site. Further planning permissions were granted between then and March 2014. On 1 July 1983 the council made a tree preservation order ("the TPO"). In early February 2008 some of the trees on the land were felled. On 7 February 2008 Treacy J., as he then was, granted an injunction preventing Messrs Barney-Smith's father, other named defendants and persons unknown from cutting down, damaging or destroying any tree protected under the TPO. More trees were felled. The council began proceedings for contempt. It was in the course of those proceedings that the undertaking of 9 June 2008 was given. In an order made on that day Rafferty J., as she then was, adjourned the application for committal and granted permission for Messrs Barney-Smith to be added as defendants. The undertaking seems to have been complied with until November 2014. But felling then began again, and on 1 December 2014 the council launched further proceedings for contempt. Those proceedings were adjourned by consent on 12 January 2015. The application for release from the undertaking was made on 30 September 2015, Messrs Barney-Smith now contending that the undertaking had been entered into on a false understanding of the law.

The issues in the appeal


The first issue in the appeal is whether Messrs Barney-Smith would be entitled, but for the undertaking, to fell trees on the land without breaching the TPO, because, as they contend, relevant planning permissions granted by the council make it lawful for them to do so. The second issue is whether, in the light of our conclusion on the first, it would now be appropriate to release Messrs Barney-Smith from the undertaking they gave to the court in June 2008. Several other questions arise from the submissions made to us by Mr Alan Masters on behalf of Messrs Barney-Smith, and I shall deal with those in discussing the two main issues.

Tree preservation orders – the legislative regime


The legislative regime for tree preservation orders originated in section 46 of the Town and Country Planning Act 1932. It has evolved through succeeding statutes.


When the TPO was made, the relevant statutory provisions were in Part IV of the Town and Country Planning Act 1971. Section 59 of the 1971 Act, "Planning permission to include appropriate provision for preservation and planting of trees", provided:

"It shall be the duty of the local planning authority –

(a) to ensure, wherever it is appropriate, that in granting planning permission for any development adequate provision is made, by the imposition of conditions, for the preservation or planting of trees; and

(b) to make such orders under section 60 of this Act as appear to the authority to be necessary in connection with the grant of such permission, whether for giving effect to such conditions or otherwise."

Those provisions were substantially reproduced in section 197 of the Town and Country Planning Act 1990. Section 60 of the 1971 Act, "Tree preservation orders", provided:

"(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 (in this Act referred to as a "tree preservation order") with respect to such trees, groups of trees or woodlands as may be specified in the order; and, in particular, provision may be made by any such order –

(a) for prohibiting (subject to any exemptions for which provision may be made by the order) the cutting down, topping, lopping or wilful destruction of trees except with the consent of the local planning authority, and for enabling that authority to give their consent subject to conditions;

(5) Provision may be made by regulations under this Act with respect to the form of tree preservation orders …


The corresponding provisions in the 1990 Act are in section 198. A tree preservation order could be given provisional effect pending its confirmation, by including in it a direction under section 61 of the 1971 Act, now section 201 of the 1990 Act.


Under section 202E of the 1990 Act, as in preceding statutes, provision is made for the payment of compensation in certain circumstances where consent required under the regulations is refused or granted subject to conditions (see Bell v Canterbury City Council (1988) 56 P. & C.R. 211).


The regulations in force at the time of the making of the TPO were the Town and Country Planning (Tree Preservation Order) Regulations 1969 ( S.I. 1969/17), as amended ("the 1969 regulations"). Regulation 4(1) of the 1969 regulations provided that a tree preservation order was to be "in the form (or substantially in the form) set out in the Schedule hereto". The form of tree preservation order set out in the Schedule included, in the Second Schedule, a provision exempting from the requirement for the local planning authority's consent "(3) the cutting down, uprooting, topping or lopping of a tree … (c) where immediately required for the purpose of carrying out development authorised by the planning permission granted on an application made under Part III of the [1971] Act, or deemed to have been so granted for any of the purposes of that Part" (my emphasis).


The corresponding exemption in the Schedule to the Town and Country Planning (Trees) Regulations 1999 (S.I.1999/1892) ("the 1999 regulations") was "(5)(1)(d) the cutting down, topping, lopping or uprooting of a tree where that work is required to enable a person to implement a planning permission (other than an outline planning permission or … a permission granted by or under the Town and Country Planning (General Permitted Development) Order 1995) granted on an application under Part III of the Act, or deemed to have been granted (whether for the purposes of that Part or otherwise)" (my emphasis). Regulation 18(2) provided that the revocation of previous regulations, including the 1969 regulations, was not to affect any tree preservation orders made before the 1999 regulations came into force, which was on 2 August 1999.


Following changes to the law made by section 192 of the Planning Act 2008, regulations made under section 202C of the 1990 Act now provide for the exceptions to the general prohibition on the "cutting down [etc.]" of trees protected by a tree preservation order. The Town and Country Planning (Tree Preservation) (England) Regulations 2012 ("the 2012 regulations") introduced a uniform set of procedures for all trees protected by tree preservation orders. Orders made before 6 April 2012 continued to protect the trees and woodlands to which they relate. It was not necessary for those orders to be made afresh, amended or reissued. But the legal provisions embodied in them were cancelled, and replaced by the provisions in the 2012 regulations. In regulation 14(1)(a)(vii) of the 2012 regulations an exception is now made for "the cutting down, topping, lopping or uprooting of a tree … so far as such work is necessary to implement a planning permission (other than an outline planning permission or … a permission granted by or under the Town and Country Planning (General Permitted Development) Order 1995) granted on an application under Part III of the Town and Country Planning Act 1990 (control over development), or deemed to have been granted (whether for the purposes of that Part or otherwise)" (my emphasis).


Guidance on that provision is given in the Planning Practice Guidance published by the Government ("the PPG"), as revised on 15 April 2015. Under the heading "Is there an exception for tree work relating to planning permission and permitted development?", paragraph 36-083-20150415 of the PPG states:

"The authority's consent is not required for carrying out work on trees subject to an Order so far as such work is necessary to implement a full planning permission. For example, the Order is...

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