Gilman, R (on the application of) v Rutland County Council & District Council [2004] EWHC 2792 (Admin)

Case No CO/3992/2004[2004] EWHC 2792 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 25 November 2004
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF FRANK EGERTON GILMANClaimant-v-
Between
RUTLAND COUNTY COUNCIL DISTRICT COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS MEGAN THOMAS (instructed by Beachcroft Wainsborough) appeared for CLAIMANTMR IAN JONES (instructed by Legal Services, Rutland CC) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal under section 288 of the Town and Country Planning Act 1990, against the decision by the defendant Council to confirm a Tree Preservation Order. The order covered four trees in the garden of the appellant's house in a village in Rutland.[2]The main challenge relates to the manner in which the report to the Committee was framed. It is submitted that the Committee were given the impression that, unless this order was made, the four trees would be felled and thus would be lost. What triggered the consideration of the possibility of a Tree Preservation Order was a concern expressed by a neighbour that there was a need to consider preservation of trees in the village. As a result, a visit was made and a decision taken that four of the trees in the appellant's garden merited a Tree Preservation Order.[3]What also concerned the Council was that Mr Gilman had made an application for development of the site, which consisted of the demolition of the single dwelling on it and the erection of two dwellings in its place. He had lived in the house since 1968 or thereabouts and he had decided that the time had come when he wanted to sell the property, but he was going to take the opportunity of obtaining planning permission, which obviously would enhance the value of the property, and of demolishing the existing building which he had been responsible for building. He recognised that whatever may have been the taste at the time it was built, now it was regarded as something of an eyesore. I do not need to go into the merits of that; they are not strictly material. But it is important to note that, in the application for planning permission, it was made clear that no trees were to be affected by the proposals and, in particular, that these trees were not to be affected by the proposals. Nonetheless, the Council (and they cannot be criticised for this), in the light of that and the concern expressed by the neighbour, decided that they would make a survey and, as I say, that the four trees should be made subject to an order.[4]It has been pointed out that one at least of them does not appear, on the face of photographs which I have seen, to have been a likely candidate for protection, having regard to the criteria which are normally applied. There were at least four neighbours who had taken the trouble to write to the Committee, indicating their view that the trees did not merit a Tree Preservation Order. Thus, there was by no means unanimity that it was in the interests of amenity that these trees should be preserved. However, the officer sought advice from an arboriculturalist, who formed the view that they did need preserving, and the Committee, before confirming the order, went to see for themselves.[5]It seems to me that they were entitled to form that view and it is quite impossible for me to say, on the material before me, that there was any error of law in that decision being made.[6]The real question boils down to this: was it expedient that the order should be made? In that respect, the report to the Committee was, in my view, misleading in important respects. It is right that I should draw attention, as has Mr Jones, to the letter which had been written by Mr Gilman to the Committee, objecting to the confirmation of the order. It was a letter dated 15 March 2004. He explained by way of background that he and his wife had made the garden, and, in particular, three of the trees subject to the order had been planted by him to celebrate the birth of each of their three children. Thus, obviously, the trees meant something to him and it could perhaps have been inferred from that that he was at least unlikely to want to demolish them. Certainly, he would not want to demolish them unless there was a very good reason for doing so.[7]He pointed out that the land value was about the same as the value of the whole site plus the farmhouse, ie the farmhouse itself added nothing to the value of the land, no doubt because it was regarded as an eyesore. But he then went on to set out his grounds of objection. With the greatest respect to Mr Gilman, they were not entirely helpful grounds because they largely constituted a broadside against TPOs in general and the bureaucracy of the Council and its taste in what it had done in the past in particular. One can well understand that a degree of umbrage may have been taken at that, but certainly the letter did not say in terms, as it should have done, that there was no intention of felling these trees, or of doing anything to harm them, and further pointing out, as indeed Mr Gilman did, that none of them merited a TPO in any event. Those were perfectly proper and sensible grounds of complaint.[8]He did however, in the course of his objections, refer to the TPO as being contrary to the Human Rights Act, though he did not specify the manner in which it was said to be contrary.[9]Included in the objections were two which Mr Jones has relied on. First, he said that future owners might have different opinions as to what design of garden pleased them in what would by then be their property, and it was not for Rutland County Council to interfere with such personal decisions concerning every day lives of the free citizens of Rutland; that being, no doubt, an attack on the concept of Tree Preservation Orders in general.[10]The ninth ground for objection was that the four trees related to the "existing ugly brute of a house" which he wished to demolish. He said "we are trying to do something better and your provisional TPO inhibits our design possibilities". That, Mr Jones says, shows that it was quite proper to take the view that there was a real risk that these trees would be demolished as part of the design for the future. That, of course, ignores the fact that the planning application specifically indicated that nothing was going to be done to the trees.[11]Then we go to the report. It refers to the planning application in paragraph 1.1, notes that it was submitted during the autumn of the previous year and was subsequently withdrawn, but does not indicate that the application specifically excluded any question of damage to, or removal of, the trees in question.[12]In paragraph 3.4 reference was made to the Rutland Local Plan and it was noted that the County Council had the power to make Tree Preservation Orders where appropriate to safeguard trees which made a significant contribution to amenity. That is the only reference to the powers. Although the Act is mentioned, it is not spelt out, and the precise terms of section 198(1) of the Act, which indicate the basis upon which their powers can be exercised, was not specifically referred to. 198(1) reeds:
"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."
[13]Mr Jones points out that consideration of Tree Preservation Orders is something which a committee such as this would regularly have to deal with, and should therefore be taken to be familiar with the legislation. The reference to the Rutland Local Plan and the powers there set out do reflect the powers in section 198.[14]Miss Thomas complains that it does not refer specifically to the need for it to be expedient to make the order. But that would not, in my view, matter, provided that the report indicated properly what were the dangers if the order were not made and why it was expedient, without necessarily using that word, for the order to be made. Unfortunately, this report did not do that. In 3.7, under the heading "Planning Officer Comments", this was said:
"The provisional TPO was made following a written request from an adjoining neighbour ... and the previous Parish Clerk to evaluate all the trees contained within the site and consider them for a TPO. Concern was expressed at the time that the trees would be removed to make way for the proposed re-development of the site."
It may be that that concern was expressed at the time by someone, but there was no basis for that so far as the application was concerned, and, indeed, it does not appear that Mr Gilman was ever asked what his intention was in respect of those trees.[15]The conclusions, which I should read in full, were as follows:
"5.1. In the opinion of the Local Planning Authority, the removal of T1 to T4 would be detrimental to the visual appearance and character of the area. No substantive evidence has been submitted to demonstrate a need for the removal and consequently it is considered that there is not sufficient justification to allow the trees to be felled. 5.2. In the light of the arboricultural advice, and having considered the reason put forward for the trees' removal, it is considered that the amenity value of the trees is such that the removal cannot be justified on the basis of the objections made. 5.3. In this case members must decide whether to confirm the provisional Tree Preservation Order. a) without modification, or b) subject to 'such modifications as they consider expedient'. OR they may decide not to confirm the order thereby allowing the trees to be felled. 5.4. Members should note that if for some reason they are minded to defer this decision, the Order will have to be remade and re-served because the six month statutory period in which the order must be confirmed in order to be valid expires on 23 August 2004."
[16]As far as that last paragraph is concerned, Miss Thomas submits that that is wrong, that it was not necessary to remake and re-serve the order even if the six-month period expired. All that the expiry would mean would be that the interim order would cease to have effect, in the sense that it would cease to prevent anything being done to the trees. In context, 5.4 simply adds to the impression which is being conveyed by these conclusions, that there will be a need to make a fresh interim order in order to stop the trees being felled.[17]It is impossible, in my judgment, to read those conclusions in any way other than conveying the message to the Committee that, unless they made this Tree Preservation Order, those trees would be felled. Indeed, the stark choice in 5.3 is between confirming the provisional order or deciding not to confirm it, thereby allowing the trees to be felled. That was simply not the case. It was never being suggested that the trees would be felled as part of the re-development proposals. What was being suggested, perhaps, from the terms of the letter from Mr Gilman was that that might happen in the future. It might happen if someone else got the property and had ideas of his own about how the garden should be set out. Equally, there was at least reference to the possibility of his own plans for development being frustrated to an extent by the presence of a Tree Preservation Order. But, one goes back to the planning application where no such suggestion was made, and there really was no basis for the assertion in the concluding paragraphs of the report that, unless the order was made, these trees would go.[18]It is suggested by Mr Jones that, in the light of the construction which he says should be placed upon Mr Gilman's letter, it was inevitable that, even if they had not been misled, and I use that word deliberately because it clearly was misleading, the Committee would have reached the same conclusion. I find it quite impossible to accept that submission. The Committee will want to reconsider the matter on the basis of a fair and proper report. It may be that, on that basis, they will decide in due course that an order should be confirmed. That will be a matter for them. It certainly is not impossible that that might be the result. It is difficult for me to judge the need on amenity grounds and they will have to recognise that Mr Gilman has said that he has no intention of felling these trees. Indeed, there is every reason why he should not in the case of at least three of them.[19]Incidentally, I should say that Mr Jones, as part of his submission, asserted that Mr Gilman had never said anywhere, not even in his evidence put before this court, that he did not intend to fell those trees. I pointed out what was said in paragraph 14 of Mr Gilman's statement, which was in these terms:
"The Officer Report to Committee ... suggests that I intended to fell the four TPO'd trees. This was and still is entirely false."
It is a little difficult to see what more positive assertion could be made that he had no intention of felling them than that. I am afraid Mr Jones' submission in that respect simply is wrong. Be that as it may, in my judgment, it cannot be assumed that this Committee, having been misled, would come to the same decision if they had not been misled, particularly as there was not unanimity as to whether it was in the interests of amenity that these trees should be preserved. That is sufficient to require me to quash this decision.[20]Miss Thomas took a second point, that the Committee were not specifically referred to the need to consider the human rights aspect. There was, she submits, an interference within Article 1 of the First Protocol and there was thus a need to balance that against the interest of the public in preserving these trees in the interests of amenity. She submits that that is something which should have been referred to specifically in the report.[21]Since I have reached the clear view in relation to the first ground, it is not necessary for me to go into the rights and wrongs of that matter. Suffice it to say that, in the case of Tree Preservation Orders, the system as a whole is clearly Convention compliant and the existence of a Tree Preservation Order may, of course, have the effect in certain circumstances of diminishing the value of property and may create a slight extra problem in obtaining planning permission. However, the presence of trees is something which obviously will concern the Council if applications for planning permission for development are made, if those applications involve the possibility or certainty of felling of trees, whether or not they are the subject of a Tree Preservation Order.[22]As it happens, outline planning permission has now been granted to Mr Gilman for development and a condition of that is that there should be no felling of, or damage to, the trees, including these trees. So there is protection available there. The point is made: well, there is nothing to stop him before he starts the development from cutting down those trees. The answer is: no, there is nothing to stop him, absent a Tree Preservation Order, but it should not necessarily be assumed that Mr Gilman is the sort of person who is going to cut down those trees if, because he is perfectly content to have the condition imposed on the planning permission, there is no Preservation Order in being. However, I do not need to go further into the human rights question.[23]For the reasons that I have given, this confirmation must be quashed and this appeal, therefore, allowed.[24]MISS THOMAS: I am grateful, my Lord. Could I address you on costs?[25]MR JUSTICE COLLINS: You can address me on costs. Have you a schedule?[26]MISS THOMAS: I have.

MR JUSTICE COLLINS: Mr Jones, you cannot, can you, resist costs in principle?

[28]MR JONES: Not in principle.[29]MR JUSTICE COLLINS: You may have some concerns about the amounts, I understand that. It looks a bit on the high side.[30]MISS THOMAS: Yes, My Lord. They come to a grand total of just under £22,000. They are detailed, however.

MR JUSTICE COLLINS: Let us have a look.

[32]MISS THOMAS: Attendances on client -- attendance on counsel, though there was no conference or site visit in terms of counsel visiting the site. But there was gathering of information to be done and the work done on documents includes obviously the production of two witness statements and then dealing with the three witness statements from the other side. The attendance at the hearing is obviously too much. It is down for 7 hours at £250 an hour. That obviously can be cut down to 3. Over the page, counsel's fee, court fees, photocopying and then, of course, there will be VAT to add to this.[33]MR JUSTICE COLLINS: You have a good clerk, Miss Thomas. I am familiar with the level of fees that seem to be considered appropriate in these cases and I am bound to say I think you have done rather too well. It is difficult for me, I know, to judge. I am 10 years out of date, I have been told. But it does seem to me to be pretty high. I think the time spent and the hours claimed by your instructing solicitor are frankly far too high.[34]MISS THOMAS: I will see if I can get any further enlightenment.[35]MR JUSTICE COLLINS: They are a London firm. It is not a question of coming from Leicester. They are a London firm, hence the high costs. Well, yes, what is the position? You are entitled to ask for a detailed assessment, I suppose, are you not?[36]MISS THOMAS: We would like you to assess it summarily.[37]MR JUSTICE COLLINS: If you want me to assess it summarily, you are going to have a very substantial cut.[38]MISS THOMAS: Let me just take instructions on that. I am instructed that we would go for a detailed assessment.[39]MR JUSTICE COLLINS: I thought you might. What do you have to say? I assume you would be submitting that there should be a very substantial cut?[40]MR JONES: My Lord, I would be submitting exactly that. The costs schedule that has been submitted is manifestly excessive.

MR JUSTICE COLLINS: I agree with you.

[42]MR JONES: But not just in terms of the time spent, but particularly work done on documents, totalling some 20 --

MR JUSTICE COLLINS: That seems to me to be absurd.

[44]MR JONES: The rates are obviously based on London rates and I am not wholly familiar with what London rates are.[45]MR JUSTICE COLLINS: I think the rates are probably in accordance with London rates. I am sure they are. It is just the amount that is being claimed. Frankly, I would find it difficult to countenance more than, at most, half of this.[46]MR JONES: My Lord, we were invited by those instructing me (inaudible). My estimate was going to be in the region of £8,500.

MR JUSTICE COLLINS: But they are entitled to have a detailed assessment, are they not?

[48]MR JONES: Indeed, they are.

MR JUSTICE COLLINS: They can try their luck with a costs judge rather than me.

[50]MR JONES: I share the views regarding the fees and particularly the separate fee for -- if it is going for detailed assessment, so be it, my Lord.[51]MR JUSTICE COLLINS: So the appeal is dismissed with costs, to be the subject of detailed assessment, if not agreed.[52]MISS THOMAS: I am very grateful.