EU Plants Ltd v Wokingham Borough Council [2013] EWCA Civ 1542

Case No C1/2012/3276[2013] EWCA Civ 1542
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSCTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue BRISTOL HEARING CENTRE[2012] EWHC 3305 (Admin)
Mr Justice Beatson
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/12/2013
Before
LORD JUSTICE LONGMORELORD JUSTICE RIMERSIR JOHN MUMMERY
Between
EU PLANTS LIMITEDAppellantWOKINGHAM BOROUGH COUNCILRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr David Fletcher (instructed by Thrings LLP) for AppellantMr Hugh Flanagan (instructed by Shared Legal Solutions) for RespondentHearing Hearing date: 16 July 2013
JudgmentLord Justice Rimer :
[1]This appeal, by EU Plants Limited (‘EUP’), is against an order made by Beatson J (as he then was) on 22 November 2012 in the Administrative Court dismissing with costs EUP’s application under section 288 of the Town and Country Planning Act 1990 for the quashing of a tree preservation order (‘the TPO’) made by the defendant/respondent, Wokingham Borough Council (‘the Council’), on 31 July 2012 in respect of trees at EUP’s property, Manor Farm, Finchampstead.[2]The claim was based on four grounds, all of which the judge rejected. The appeal, brought with the permission of Patten LJ, was advanced on just two of such grounds:
‘the roadway ground’ and ‘the condition of the trees ground’
.

Tree preservation orders

[3]The power to make a TPO is provided by section 198(1) of the Town and Country Planning Act 1990:
‘(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.’
[4]The Town and Country Planning (Tree Preservation) (England) Regulations 2012 (SI 2012/605) provide, so far as material:
‘13. Prohibited activities … no person shall – (a) cut down; (b) top; (c) lop (d) uproot; (e) wilfully damage; or (f) wilfully destroy, any tree to which an order relates, or shall cause or permit the carrying out of any of the activities in sub-paragraphs (a) to (f) to such a tree, except with the written consent of the authority and, where such consent is given subject to conditions, in accordance with those conditions. 14. Exceptions (1) Nothing in regulation 13 shall prevent – (a) the cutting down, topping, lopping or uprooting of a tree – (i) which is dead; … (b) the removal of dead branches from a living tree ….’
[5]Regulation 16 provides for the making of applications for consent to the cutting down, lopping or uprooting of any tree in respect of which a TPO is for the time being in force; and regulation 17 provides that the local planning authority can grant consent, either unconditionally or subject to specified conditions, or can refuse consent.

The facts

[6]Following an inspection of the site in December 2011, the Council made a provisional TPO (1414/2012) on 3 February 2012. Its provisional nature was that it would continue in force for six months or until confirmed by the Council, whichever occurred first. It was made in respect of six species of trees in an area of land described as: ‘[o]n Manor Farm … within a 5-metre strip adjacent to the west side of the “permissive” path between the south east corner of the boundary of “The Rectory”, Jubilee Road, Finchampstead and grid point 480246 and 162989 on the “permissive” path …’.[7]The grounds for making the TPO were stated as follows (I have numbered the paragraphs for the purposes of subsequent reference):
‘1. [The Council] has made [the TPO] in response to recent tree felling … undertaken on … Manor Farm. 2. Following a change of ownership and the removal of trees in this location, [the Council] thinks the site may be subject to development in the future. Specific development along the permissive pathway appears to be to install a roadway which would potentially cause significant harm [to] the roots and canopy of the trees. This would reduce their amenity value to … the public viewing from the pathway [and nearby roads]. These trees are growing along a ditch and their age implies a long association between trees and the ditch/field boundary line, as such this group is of additional historic importance. 3. [The Council] therefore considers it expedient to include the trees to the west of the pathway in a [TPO]. This is to ensure they are adequately protected and will continue to make a long term contribution to the visual amenity of the local area. It will also ensure that only appropriate works are undertaken to the trees.’
[8]EUP objected to the TPO and made representations opposing its confirmation. It relied on a report of 3 April 2012 by Crown Consultants Ltd, tree consultants.[9]The Council’s Planning Committee met on 25 July 2012 to consider whether or not to confirm the provisional TPO. It had before it a report by Coralie Ramsey, the Council’s Tree and Landscape Officer. The report noted that the making of the TPO was supported by 21 residents but was opposed by EUP. It recommended the confirmation of the TPO. Its conclusion was that:
‘The making of [the TPO] is considered expedient, as it is to ensure the retention and appropriate management of highly visible field-boundary trees within [Manor Farm]. The expediency of this [TPO] has been demonstrated by prior works to the trees, which are not considered to be in accordance with best arboricultural practice. Confirming the [TPO] will ensure that only appropriate work is undertaken to the trees and that their removal can only be undertaken with written permission from [the Council]. It will also enable replacement planting to be undertaken, when appropriate, for any trees that may be removed in the future.’
[10]The Council confirmed the TPO on 31 July 2012 for the same reasons as those for the making of the provisional TPO.[11]EUP’s claim form asking for the quashing of the TPO was issued on 10 September 2012.

The roadway ground

[12]It is said by EUP that the principal ground for both the provisional and confirmatory TPO was that ‘specific development along the permissive pathway appears to be to install a roadway which would potentially cause significant harm to the roots and canopy of the trees’ (paragraph 2 of the quotation in [7] above). EUP’s case is that the installation of a surfaced roadway could only improve the position of the trees.[13]The background to this submission is that there was already an existing, unmade ‘permissive track’ within Manor Farm. EUP wished to provide road surfacing to it. Under The Town and Country Planning (General Permitted Development) Order 1995 (‘the GPDO’), Schedule 2, Part 6, Class A, the carrying out on agricultural land comprising a unit of five hectares or more of ‘any excavation or engineering operations’ that are ‘reasonably necessary’ for the purposes of agriculture within such a unit is ‘permitted development’ for which planning permission is not required. The carrying out under the GPDO of (inter alia) development consisting in the ‘formation or alteration of a private way’ is, however, subject to the ‘Conditions’ imposed by paragraph A.2(2) of Part 6. By paragraph A.2(2)(d)(i), anyone proposing to carry out such a development is required, before beginning his intended works, to apply to the local planning authority: ‘… for a determination as to whether the prior approval of the [Council] will be required for … the siting and means of construction of the private way …’.[14]Paragraph A2(2)(d)(iii) prescribes that the development shall not begin before the occurrence of(a) the receipt by the applicant of a written notice of the authority’s determination that such prior approval is not required;(b) where within 28 days of the receipt of the application, the authority notifies the applicant of its determination that such prior approval is required, the giving of such approval; or(c) the expiry of 28 days from the date of the application without the authority making any determination whether such approval is required or notifying the applicant of its determination. It is to be noted that on any such application the authority cannot, therefore, itself impose conditions as to siting and means of construction of the way: it can only, if it chooses, either approve or not approve the specifications proposed by the applicant. In practice, though, it is open to the authority to indicate that, whilst it is not willing to approve specification X, it would be willing to approve specification Y.[15]On 23 January 2012, EUP notified the Council of its intention to surface the track. On 16 February 2012 (13 days after the making of the provisional TPO on 3 February), the Council notified EUP of its determination that ‘on the basis of the current level of agricultural activity on site [EUP] has not … demonstrated that the track is reasonably necessary’ and that therefore the intended work did not fall within the provisions of the GPDO.[16]On 18 April 2012, EUP made a fresh application under the GPDO, one supported by additional information. We do not have a copy of it, but derive from other documents that EUP’s stated intention was to install a load spreading surface in accordance with British Standard 5837. On 14 May 2012, the Council notified EUP of its determination that ‘the proposed track is reasonably necessary for the purposes of agriculture’ and so was development that did fall within the GPDO. The Council did not, however, within the prescribed time notify EUP either that the Council’s prior approval as to ‘the siting and means of construction’ of the road was not required or that it was required. The consequence was that, upon the expiry of 28 days referred to in alternative (c) in [14] above, EUP was at liberty to proceed with its road surfacing works. EUP did not then come under any obligation actually to carry out such works, but if it was going to carry them out, it had to do so within five years of 18 April 2012.[17]Building on this factual background, EUP’s assertion is that the Council’s objective in its confirmation of the TPO in July 2012 was to enable it to do that which, under its response to EUP’s second application under the GPDO, it had not sought to do, namely to assume a power to control the construction of the road to a reasonable standard. That, it is said, was to use the TPO to achieve a purpose for which it was neither designed nor suited, and was therefore to use it so as to achieve an improper purpose. Although the reasons for the making of the TPO included that the installation of the proposed roadway ‘would potentially cause significant harm [to] the roots and canopy of the trees’, this was said to be factually wrong. Moreover, the Officer’s report had said that:
‘The purpose of the [TPO] is not to prevent any development in this area; but is to ensure that any road that may be constructed is built so as to minimise impact on the trees in accordance with industry best practice.’
[18]Mr Fletcher, for EUP, also pointed out that, in his judgment, Beatson J had said this:
‘51. Again, the officer’s summary of the objection dealt with the position if the track was left without surfacing, and what had been proposed by [EUP] in the planning application received on 19 April 2012. It is clear that the trees were at risk from the established use of the track by agricultural vehicles. It is also clear that it was common ground that the type of roadway [EUP] stated it wished to install would minimise the harm.’
The last sentence was a reference to EUP’s stated intention to construct the roadway to BS5837.[19]EUP’ s case came down to this. EUP was, at the date of the TPO, entitled to use the track as it was – in its unsurfaced state – and could not be stopped from doing do so even though such use was likely to be more damaging to the roots of the trees than would the use of the track if it were surfaced. The construction of a road, even with a substandard surface, would provide more protection to the roots than no surfacing at all, but would provide less protection than a road built to a higher standard (for example, BS5837). Neither the use of an unsurfaced track, nor the use of a road with a substandard surface, can or could rationally be regarded as constituting ‘wilful’ damage to the tree roots (see [4] above for the prohibitions imposed by regulation 13 of the 2012 Regulations); and a TPO cannot be imposed with a view to compelling an owner to construct a roadway to a particular standard so as to achieve the best available protection for tree roots. If the Council wanted the track to be surfaced to a particular standard, it had the opportunity of so requiring by way of response to EUP’s application under the GPDO. It did not so require, and cannot instead seek to achieve the like result under the TPO. The expressed reason in paragraph 2 of the TPO was wrong.

The judge dealt with this in the final two sentences of the following paragraph:

‘52. The relevant circumstances about this site included the fact that Mrs Ramsey [the Council’s Tree and Landscape Officer] had, on her visit, found examples of [EUP] not following best practice in relation to pruning. This was not disputed by [EUP] at the meeting of the Planning Committee. (Although not relevant to the legality of the Planning Committee’s decision, I observe that it was also not disputed at the hearing before me). Given all these circumstances, it was open to the Committee to conclude that, notwithstanding [EUP’s] expression of intention [with regard to the standard to which the road was to be constructed], a TPO was needed to ensure the outcome that [EUP] stated it was [its] intention to achieve. I accept Mr Flanagan’s submission [for the Council] that, in light of the background, the Council was entitled to be cautious about that expression of intention.’
[21]That paragraph reflects the Council’s concern as to whether EUP was in fact going to construct a road to BS5837. Mr Fletcher submitted, however, that the last two sentences were flawed and irrational. First, they provided a reason for upholding the TPO which was inconsistent with the reason contained in paragraph 2 of the Council’s expressed reasoning, but was by way of adoption of the Officer’s different reason contained in her report (see [17] above). Second, that substitute reason was anyway deficient because a TPO cannot be used to impose conditions as to how a project of proposed road surfacing is to be carried out. The undisputed fact is that the permitted use of the road even with substandard road surfacing would be less damaging to the tree roots than would the use of the track with no surfacing, but in any event the Council cannot use the TPO to dictate that the track must be surfaced to a particular standard. To make the TPO on the basis that it could be used to achieve such an end was to misunderstand the nature and purpose of TPO and was a flaw in its making that undermined its lawfulness.[22]Mr Flanagan, for the Council, disputed that the reason for the TPO contained in paragraph 2 of the reasons – ‘Specific development along the permissive pathway appears to be to install a roadway which would potentially cause significant harm [to] the roots and canopy of the trees’ – did not represent the true reason for the making and later confirmation of the provisional TPO. He recognised that the reason was perhaps expressed over-succinctly. His submission was that its essence was, however, a proper reason for making the TPO.[23]At the time of the making of the provisional TPO, there was (so the Council was to determine) no valid notification of an intention by EUP to carry out works falling within the 1995 Order. The TPO was made in the context of a change in the ownership of Manor Farm, with the new owner proposing and undertaking a change in working practices there. The Council was, he said, entitled to regard the risk of increased use of the track, and the risk that any surfacing of it would or might be substandard, as likely to result in damage to the tree roots. The Crown Consultants’ report recognised that there is a spectrum of road surfacing that might be applied to the track and that the risk of damage to tree roots will vary according to the standard of the surfacing that is applied. Mr Flanagan accepted that EUP’s later stated intention to surface the road to BS5837 would be to surface it to an acceptable standard. That was, however, no more than a statement of intention, which might not be carried out. The TPO could not compel, nor did it purport to compel, EUP to surface the track to any particular standard. Its rationale was, however, that the continued use of the unsurfaced track, or its use with a substandard surface, could be said to amount to the causing of wilful damage to the tree roots, and it was therefore proper to impose the TPO with a view to protecting the trees from such damage: and if EUP wished to avoid any risk of prosecution, its course was to ensure that the track was surfaced to an appropriate standard. Mr Flanagan recognised that a prosecution for alleged ‘wilful damage’ to the trees by reason of the continued use of the track might be a challenging one for the prosecutor. It could not, however, be said to be impossible to make good such a charge, and this court cannot conclude that no such case could be made out. He submitted that, once the TPO was in place, EUP was simply wrong in its assertion that it was entitled to continue to use the track with heavy vehicles regardless of whether such use damaged the trees.[24]In addition, Mr Flanagan pointed out that the Crown Consultants’ report revealed that the trees covered by the provisional TPO had received ‘little or no maintenance’. Branches had been allowed so to hang that they risked damage from farm vehicles, although EUP had lifted the lower canopies of some of the protected trees. Paragraph 8.5.4 of the Crown Consultants’ report also said that ‘No trees have been felled by [EUP] other than small self sown trees which interfere with the operation of the farm or which are in a state of collapse and considered to pose an unacceptable risk to the public.’[25]In response to that, the Officer’s report explained that a TPO is not ordinarily considered justified when pruning work to an appropriate standard has been carried out, but that in this case, and prior to the provisional TPO, pruning had been carried out to the trees that was not in accordance with British Standard 3998/2010 (Tree Work Recommendations). The purpose of the provisional TPO had been to protect not just the tree roots, but also their canopies. The report also noted that ‘it is rarely appropriate to give different value to trees based on whether they are considered to be planted or self sown’. Mr Flanagan submitted that even if the provisions of the GPDO might in practice have enabled the Council to impose conditions as to the standard of any road surfacing, it could not also impose conditions that would protect the canopies of the trees. The TPO therefore also served to protect the trees against any topping and lopping being carried out in a way other than in accordance with best practice.[26]In sum, he submitted that it had been appropriate both for the provisional TPO to have been made when it was and then to have been confirmed. The protection of the roots and canopies of the trees were squarely within the statutory purpose of TPOs, namely the preservation of the amenity value of trees. Section 198(1) of the 1990 Act was expressed in wide terms and it could not be said that ‘it was not expedient in the interests of amenity’ for the Council to make the TPO in this case[27]As between the rival arguments presented on the ‘roadway’ ground, I prefer and accept those advanced by Mr Flanagan. It appears to me that, both at the time of the making of the provisional TPO and at the time of its confirmation, the Council was entitled to be concerned as to the risk of damage to the roots of the trees by the continued use of the unsurfaced track, or by the use of the track surfaced to an inadequate standard; and entitled to be concerned that the canopies of the trees were at risk of damage from vehicles or by pruning to an inadequate standard. I do not accept Mr Fletcher’s submission that the TPO was directed at achieving an objective – namely, the surfacing of the road to a particular standard – that was beyond the vires of the Council. The Council’s concern was that the track should not be used in a manner that caused damage to the tree roots. That was a legitimate concern. It was for EUP to decide how its use of the track would avoid occasioning such damage.

The condition of the trees

[28]The First Schedule to the TPO identified the trees as ‘trees specified by reference to an area’, and the area was then defined. The protected trees were not all trees within that area, but were all the identified species of six types of tree. Mr Fletcher said the Council’s reasoning in relation to the condition of the trees was only to be found in the Officer’s report. That was said to reflect an approach under which it was regarded as appropriate to make an area TPO in relation to trees and then leave it to EUP to seek to have exempted from it any substandard or unhealthy trees that did not merit preservation. He said that the report recorded, and did not apparently disagree with, Crown Consultants’ opinion that a number of the trees in the area were not safe and healthy or capable of reasonably long life and were contributing damage to buildings (eg subsidence damage), and that some trees were damaging ditches. The report also recorded Crown Consultants’ view that any TPO should not include the goat willows, as they blocked the ditch; nor should it include birches, ash or sycamore as they were small, self-sown trees in poor condition. Their view was also that the holly trees had low amenity value and would overpower adjacent trees. They considered that any TPO should include only field maple and oak trees.[29]Crown Consultants’ view as to the limits of any TPO was not, however, adopted by the Officer or by the Council. The Officer noted that the Council had ‘successfully used “Area” designation type TPOs to administer many sites’, and gave as an example the Edgcumbe Park Estate; and an area TPO was also made in this case. An area TPO of such a nature, specifying species of trees, but including admittedly unhealthy trees, was, however, said by Mr Fletcher to be out of line with Government Guidance (Tree Preservation Orders: A Guide to the Law and Good Practice), in which he referred us to the following parts:
‘Individual Trees and Groups of Trees 3.14 If trees merit protection in their own right, they should be specified as individual trees in the TPO. The group category should in general terms be used for trees whose overall impact and quality merit protection. The intention of the group classification is not simply to protect trees which have individual merit and happen to be standing close to one another, but for their merit as a group. The number of trees in the group and their species should be specified in the 1st Schedule of the TPO, and if each tree’s location can be indicated within the broken black line on the map, so much the better. … Areas of Trees 3.17 Using the area classification (the so-called “area order”) is an alternative way of specifying scattered individual trees. All the trees within the defined area on the map are protected if their description in the 1st Schedule of the TPO is all-encompassing (eg “the trees of whatever species within the area marked A1 on the map”). The LPA may limit the TPO’s protection to those species within the area which make a significant contribution to amenity, and this should be made clear in the description of the trees in the 1st Schedule (eg “the oak and beech trees within the area marked A2 on the map”). The area classification has its drawbacks. Firstly, it is possible that trees will be included in the TPO which do not merit protection. … 3.18 In the Secretary of State’s view the area classification should only be used in emergencies, and then only as a temporary measure until the trees in the area can be assessed properly and reclassified. LPAs are encouraged to resurvey their existing TPOs which include the area classification with a view to replacing them with individual and group classifications where appropriate ….’
[30]The TPO was also said to be out of line with the Council’s own guidance, which was that, so far as material:
‘• The tree(s) must be highly significant when viewed from a public place such as a road or footpath. Trees that can only be viewed from a neighbouring property and are not significant in the wider landscape cannot be included . … • The tree must be safe and healthy, capable of a reasonably long life and not be contributing to any known damage to buildings … • It must be expedient to include the trees in a TPO. This usually means that they are under some form of threat, such as from a proposed development. We will not normally protect trees at individual properties, which are perceived as being under threat from more general risks such as changes of ownership. ….’
[31]Mr Fletcher’s submission was that the inclusion in the area TPO in this case of unhealthy and unsound trees, when what ought to have been done was to specify the particular trees that merited protection, was therefore to ignore both the Government Guide and the Council’s own guidance. This was not a case falling within paragraph 3.18 of the former Guide: there was no emergency, and the confirmed TPO was not made as a temporary measure. As the Officer’s report appeared to recognise that, as Crown Consultants had pointed out, a material number of the trees in the area did not merit protection, the TPO should not have included them. It was not a correct application of the TPO procedure to leave it to the landowner to apply for exemption from the TPO of any particular tree in respect of which it was sought to carry out work.

The judge dealt with the ‘condition of the trees’ as follows:

‘55. I start with Crown Consultants’ report. It is true that paragraphs 6.2 (in the section on the Council’s guidance) and 9.4 (in the summary section) state respectively that “several of the trees that are the subject of the Order are unsafe, unhealthy and not capable of a reasonably long life” and “many of these trees are in very poor condition and will require ongoing maintenance works in order to improve their condition and reduce risks to farm staff and members of the public using the permissive footpath”. However, non-compliance with the guidance is not made out in section 8.6 of the report, which considers the trees on a species by species basis. First, that section addresses the question of whether the trees are “of sufficient quality”, rather than the questions of safety and health which are in the Council’s guidance, and reflect both the statutory purposes and the Department’s guidance. Secondly, with the exception of the ashes which, in paragraph 8.6.4, are stated to be “in poor condition”, to be of “low vigour” and in a “state of decline”, the report only addresses the question of quality. There are references to “poor quality” in 8.6.3 and 8.6.5 – 8.6.10, but “poor quality” is a different concept to “unhealthy”. It is clear from Ms Ramsey’s evidence (see paragraph 2) that her examination was for “health” as well as “amenity” and “expediency”. The question whether the proportion of the trees which were unhealthy or in very poor condition meant that it was inappropriate for the Council to make an area TPO is one of planning judgment. The Officer’s report stated that the trees were “highly visible field boundary trees”. The Departmental guidance states (paragraph 3.2 …) that “the value of a group of trees or woodland may be collective only”. The Officer’s report summarised the objection as stating that “a number of the trees are not safe and healthy, or capable of reasonably long life”, and the Committee had before it the letter of objection from Thrings [for EUP] which set out the criterion in the Council’s guidance note. The Committee neither failed to take into consideration the policy, nor, in concluding that the group of trees as a whole contributed to amenity because they appeared to be in good condition, stepped beyond the range of conclusions open to a reasonable Planning Committee. 56. The key concept in section 198 and the Departmental guidance is “expediency”. Mr Fletcher’s overall submission on “expediency” relied on his submissions on the three matters I have dealt with. My conclusions on those lead inexorably to the conclusion that the Committee’s decision on “expediency” was not flawed in law or on a public law ground. The Committee was entitled to take into account the fact that the new owner of Manor Farm was proposing and demonstrating a change in working practices and the position in relation to a roadway over the permissive track. … The sub-standard pruning cuts seen by Ms Ramsey on her inspection and identified to the Committee in photographs provided clear evidence of the trees not being under sound arboricultural management. For these reasons, the Committee did not err in concluding that it was expedient in the interests of amenity to make an area TPO on the specified area of land.’
[33]Mr Fletcher criticised those paragraphs as attaching a misinterpretation to Crown Consultants’ reference to the ‘quality’ of the trees, whereas all that such word was referring to was the health and safety of the trees, as, he submitted, the Officer and the Council correctly understood. His submission remained that this was a case in which the uncontroverted evidence before the Officer and the Council was that a majority of the trees included in the TPO were not worthy of preservation, yet the TPO nevertheless included them. That was said to be wrong in principle.[34]Mr Flanagan submitted, first, that EUP’s reliance on the Government Guide was a new point, which did not feature in its particulars of claim, its argument below or its ground of appeal in relation to the condition of the trees. It had hitherto relied simply on the case that the Council had acted in breach of its own guidance. The point was not, therefore, one that could now be taken. In any event, it was mistaken. He referred us to the Preface to the Guide, which said expressly that:
‘Authorities are not required to follow the advice given; the Guide imposes no new burdens on them. But for many authorities the Guide is a useful point of reference which is relevant to their day-to-day work.’
In any event, the Council had followed the guidance in paragraph 3.17, which permitted a TPO in relation to species of trees within a particular area. Whilst he recognised that the confirmation of the TPO was not made in circumstances of emergency or as a temporary measure, and so did not meet the criteria of paragraph 3.18, the TPO did not need to do so. The making of an area TPO was specifically recommended by the Officer’s report: the Officer explained that such an area TPO had been successfully used in many sites. There was nothing in EUP’s point that an area TPO was inappropriate in this case.[35]Second, Mr Flanagan submitted that EUP’s challenge to the Council’s approach to making of an area order in this case, rather than an order identifying for protection specific trees, was a challenge to its planning judgment. The appeal against the Council’s decision to confirm the TPO was made under section 288 of the 1990 Act, and any challenge under that section could only be on the basis that the decision was not within the Council’s power under section 198(1), or that the Council had not complied with relevant requirements in relation to its exercise of that power. EUP’s application was not, however, an opportunity for the carrying out of a review of the planning merits of the Council’s decision. Since in a case such as this there was scope for a broad range of possible views, the burden of showing that the particular decision made was Wednesbury unreasonable (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223) was a heavy one. In support of this submission, Mr Flanagan referred us to Newsmith Stainless Ltd v. Secretary of State for the Environment Transport and the Regions and another [2001] EWHC (Admin) 74. He said that EUP did not discharge the requisite burden.[36]Third, the Council’s own guidance in relation to the consideration of whether to make a TPO in any particular case included the criterion that:
‘The tree must be safe and healthy, capable of a reasonably long life and not be contributing to any known damage to buildings (eg subsidence damage).’
In the present case, Mr Flanagan submitted that Crown Consultants’ report did not, on a fair reading, invite the conclusion that most of the trees the subject of the TPO did not meet this criterion. Section 8.6 of the report was headed by the question ‘Are the Trees of Sufficient Quality to be Worthy of Protection?’ Mr Flanagan submitted, I consider correctly, that it is apparent from paragraph 8.6.2 that the report’s use of the word ‘quality’, whilst also covering considerations of safety and health, included wider considerations of the trees’ amenity value, aesthetic quality and contribution to the landscape. Paragraph 8.6.4 referred to the ashes as being in such poor condition as not to be of sufficient quality to merit protection, and Mr Flanagan accepted that a significant proportion of the ashes are unhealthy. But the report then turned, in paragraph 8.6.5, to refer to a self-sown, semi-mature sycamore tree, adding that ‘Self sown sycamores of such age are very common and this non-native species is considered to be invasive. This tree is not considered to be of sufficient quality to be worthy of protection.’ Nothing was said of the sycamore to suggest that it was not safe or healthy. All that Crown Consultants were here doing was making their own value judgment of the merit of this sycamore and others like it. It was for the Council to make its own judgment as to the trees that merited protection.[37]Paragraph 8.6.6 dealt with the field maples, which were described as in reasonable condition for their age. It was said of them that they would require active management if they were to be retained in a safe condition. It was not, therefore, said that they were currently unsafe, nor that they were unhealthy. The report opined that several of the smaller trees were considered to be of low quality and not of sufficient quality to be worthy of protection. This was another value judgment by Crown Consultants. It was open to the Council to form a different judgment.[38]Paragraph 8.6.7 dealt with the birch trees. It referred to them as being small and of low quality. It also said that ‘it is unlikely that any of these trees will grow into healthy mature specimens and they are not considered to be of sufficient quality to be worthy of protection.’ That did not suggest that they were not currently healthy, and the opinion as to their quality was simply another value judgment by Crown Consultants. Paragraph 8.6.8 dealt with the holly trees. There was also no suggestion that they were not safe or healthy, but again they were said to be of insufficient quality to merit protection. Paragraph 8.6.9 accepted that the oak trees merited protection. Paragraph 8.6.10 dealt with the goat willows. Again, they were said to be of insufficient quality to merit protection, but it was not said that they were unsafe or unhealthy. Paragraph 8.6.11 expressed the general view that the inclusion of the willows within the TPO would be ‘very poor judgement’. The relevant judgment, however, was not that of Crown Consultants but of the Council.[39]Mr Flanagan submitted, therefore, that the thrust of the Crown Consultants’ report was not that the majority of the trees were unsafe, or unhealthy or incapable of a reasonably long life, and so not worthy of protection in accordance with the Council’s own guidance, but that from a more general perspective they were not regarded as of sufficient quality to merit protection. That was the expression of a matter of judgment, whereas the Officer and the Council were entitled to form their own different judgment as to whether the trees merited the protection of a TPO. The TPO was also an ‘area’ order, and it is likely that in the case of such an order not all the trees within it will be of uniform condition. Overall, however, the Council was satisfied that they merited protection. The Council was, as it is to be assumed it did, entitled to take the view (reflected in Chapter 3 of the Government Guide) that ‘the value of a group of trees … may be collective only’.[40]Finally, Mr Flanagan submitted that the Officer’s report reflected an approach to the question that amounted to a proper and considered assessment of the relevant considerations. The summary of the report recorded that the provisional TPO had been made to protect ‘significant trees’ on the west side of the track. It also noted that Manor Farm is situated within a designated Area of Special Landscape Importance, with the protected trees forming a ‘prominent landscape feature and [contributing] to the wider visual amenity provided by the mature trees in the area’. The report expressly recognised that not all the trees in the protected area were safe, healthy or capable of reasonably long life, but in the section of the report headed ‘Planning Issues’, it noted that dead and dangerous trees were exempt from the TPO, and that other applications for tree work in relation to the protected trees could be made. The report focused expressly on the question of the ‘expediency’ of a TPO, and its conclusion was that it was expedient to make one. It could not be said that the Officer’s report had not provided a balanced assessment of the relevant considerations for the Council.[41]My view on the ‘condition of the trees ground’ is, again, that Mr Flanagan’s submissions are to be preferred, and I accept them. I consider that he was correct that it is a misreading of the Crown Consultants’ report to conclude from it that their opinion was that the majority of the trees in the protected area were unsafe, unhealthy or incapable of reasonably long life. That is admittedly the case with some of them, as I infer the Council’s Officer to have recognised. The Crown Consultants’ report is, however, predominantly devoted to advancing its assessment of the ‘quality’ of the trees, being its perceived assessment of their value extending beyond matters of safety, health and potential longevity. I consider that there is no proper basis on which it can be concluded that the Council was not entitled to form the judgment that it did that it was expedient to make an area TPO in respect of the species of trees that the TPO identified.

Disposition

[42]I would dismiss EUP’s appeal.

Sir John Mummery :

[43]I agree.

Lord Justice Longmore :

[44]I agree also.