Roden v Secretary of State for Communities and Local Government & Ors [2016] EWHC 2701 (Admin)

[2016] EWHC 2701 (Admin)Case No CO/1615/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 October 2016
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
ALEXANDRA KYLLIKKI RODENClaimantSECRETARY OF STATE FOR COMMUNITIESDefendantsAND LOCAL GOVERNMENTDefendantFRANCO DI CAPITE and PATRICIA ANN DI CAPITEDefendantFORTITUDO (BEAUMONT ROAD) LTDDefendant
The Claimant in person for in personMs Victoria Hutton (instructed by Government Legal Dept) for First Defendant for The Second and Third Defendants did not attend and were not representedHearing Hearing date: 11 October 2016
Judgment ApprovedMr Justice Supperstone :Introduction
[1]In this application under s.288 of the Town and Country Planning Act 1990 (“the 1990 Act”) the Claimant challenges the decision of an Inspector, appointed by the First Defendant, dated 11 February 2016 (“the Decision”) to allow the appeal against the decision of the Borough of Poole (“the Council”) dated 1 June 2015 and grant planning permission for the demolition of the existing dwelling and the erection of three detached dwellings with associated access, parking and landscaping at 1 Beaumont Road, Poole, BH13 7JJ (“the Site”), in accordance with the terms of the application, Ref. APP/15/00329/F, dated 6 March 2015, subject to the conditions set out in the Annex.[2]The Site is described in the Decision (“DL”) (at para 5) as follows:
“The appeal site occupies a position towards the western end of Beaumont Road and is a comparatively large site in the context of other plots within Bodley Road and Beaumont Road. The site is currently occupied by a large detached property with its principle elevation and access onto Bodley Road, but possesses a significantly wider frontage to Beaumont Road. The flank boundary runs parallel to Bessborough Road, which is indicated to be a private access road. The site accommodates mature trees which occupy much of its boundaries, and in particular along the Beaumont Road and Bessborough frontages towards the south-west corner of the plot. The mature trees on the site make a significant contribution in terms of their amenity to the character and appearance of the street scene and the area.”
[3]The Borough of Poole (Canford Cliffs No.2) Tree Preservation Order 1966 (“TPO”) was made under s.29 of the Town and Country Planning Act 1962 and grants protection to many of the trees in the area, known as Canford Cliffs.[4]The Claimant is a local resident and has lived with her family at 23 Bessborough Road since May 2015 when they completed the purchase of the property.[5]The application for planning permission was made by the Second Defendant on 6 March 2015. The Third Defendant is the developer.

Relevant factual background

[6]The application made by the Second Defendant on 6 March 2015 for planning permission was accompanied by an “Arboricultural Impact Assessment and Method Statement” (“the Report”), prepared by Mr AJ Scott dated 23 March 2015. The Report contained an Aboricultural Impact Assessment (“AIA”) and an Aboricultural Method Statement (“AMS”). The AIA stated under the heading “Potential Impact Upon Retained Trees”:
“Direct Impact Upon Area 3.1 No trees are required to be felled due to the location of the new buildings or outbuildings. Indirect Impact 3.2 One category U tree and four category C trees which are likely to be subject to the TPO are shown for removal to improve the amenity areas of the new dwellings.”

Indirect Impact

[7]The AIA included a tree schedule at Appendix B which assessed the quality of each of the trees on the site. Table 2 of Appendix B headed “Tree works required at 1 Beaumont Road” identifies 6 trees to be felled “prior to commencement of works”. The category U tree is T5 and 5 category C2 trees are T1, T6, T8, T9 and T22 (the first four being Monterey Pines and the fifth being Holly).[8]Table 2 notes that “All works to be in accord with BS3998/2010. All works to be carried out [by] personnel holding the relevant NPTC Certificate. All debris to be removed from site to recycling centre.” All debris to be removed from site to recycling centre.”[9]The Executive Summary of the Report concluded that “… this proposal has minor direct impact upon the area and that the indirect risks identified can be easily managed by precautions specified within the Arboricultural Method Statement (AMS).”[10]On 1 June 2015 the Council refused the application. Four reasons were given for that refusal. The only reason relevant for present purposes is:
“The layout of the scheme fails to adequately address the context and constraints of the site and would be harmful to the immediate and future health of protected trees within the site due to an unsatisfactory tree and building relationships and increased pressure to prune due to the overbearing and overshadowing impact on the dwellings and gardens. The proposal is therefore considered to be contrary to Policy DM1 of the Poole Site Specific Allocations and Development Management Policies DPD (Adopted April 2012).”
[11]The relevant part of Policy DM1 states:
“iii. Trees – Development proposals which result in the loss of protected or unprotected trees that make a significant contribution to the character of the area will be resisted. An Arboricultural Method Statement will be required when there is a likely adverse impact on the health and wellbeing of the trees, either through the pressure to prune or fell or through excavation works which could harm the root systems. The Statement should set out the measures that will need to be taken to protect the health of the trees during the construction period and afterwards. Any scheme that requires the removal of trees, whether protected or unprotected, should include for replacement trees, where appropriate, to mitigate their loss and be identified on a landscape plan.”
[12]The Council’s representations on the appeal by letter dated 6 July 2015 requested that the Inspector consider the Case Officer report as the “defence and justification for the decision taken”. The Council attached at Appendix 1 to the letter a list of suggested conditions in the event the Inspector considered the scheme acceptable. Condition 11 provided for the provision of an arboricultural method statement providing comprehensive details of construction works in relation to trees to be submitted to, and approved in writing by, the Local Planning Authority prior to the commencement of demolition/development and for all works subsequently to be carried out in strict accordance with the approved details. In particular the method statement was to provide a schedule of tree works conforming to BS3998, and details of all other activities which have implications for trees on or adjacent to the Site. The “Reason” given for this proposed condition was:
“In order that the Local Planning Authority may be satisfied that the trees to be retained on-site will not be damaged during the construction works and to ensure that as far as possible the work is carried out in accordance with current best practice and in accordance with Policy DM1(iii) of the Site Specific Allocations and Development Management Policies (April 2012).”
[13]The Officer’s report in relation to “Protected Trees” included the following:• “The application site is covered by numerous protected trees, predominantly on the southern side.• an Arboricultural Impact Assessment and Method Statement and Tree Protection Plan have been received. However, the quality of this information is considered to be inadequate and fails to properly identify the arboricultural constraints and implications for trees. The tree survey schedule is not in accordance with the guidance and standards set out in BS5837:2012. Twenty-three trees have been listed in the tree schedule and are categorised mostly as B2 and C2 trees. However, at least eleven of the trees which have been categorised as C2 in the submitted arboricultural information are considered to be better quality and should be B category. These trees present a significant constraint to more intensive development of the site.• …• Virtually all the trees on site are of sufficient quality, condition and life expectancy to warrant retention, both individually and as a group. They are located along the boundaries of the application site and are highly visible within the street scene. They provide a positive contribution to the character of the area and their long term retention needs to be preserved. The existing dwelling has a reasonably harmonious relationship between the trees and dwelling.• In terms of the current proposal for three dwellings, the tree and building relationships are unacceptable by virtue of their close proximity to important trees. The resultant tree loss and damage that would occur to root systems due to construction activities and the intensified use of the land would be obvious and detrimental to the sylvan character of the area.• Many of these constraints and the resultant shading, dominance and increased risk to persons or property are due to the significant erosion of adequate separation between the trees and buildings. This would result in future pressure to prune or fell trees. In this instance, the presumption in favour of development is unachievable due to the unacceptable harm it would inflict on the trees.”[14]By a letter dated 6 August 2015 the Claimant made representations on the appeal. With regard to the impact to trees on the Site she wrote:
“Beautiful Trees It is difficult to see how the dwellings as per the plans submitted can be built without damaging the numerous beautiful trees on the plot.”
[15]Representations were also made by the Canford Cliffs Land Society Ltd (“the Society”) which represents the interests of over 100 properties on the Canford Cliffs. The Society supported the Council’s conclusion that the proposed development will lead to serious harm to protected trees, and continued:
“In particular, nowhere in the Tree Consultant’s response does it address the fundamental issue of the proposed dwellings being sited too close to protected trees. Therefore, in addition to the four protected trees that have to come out to support the development it is clear from the plans (and it does not require a professionally trained tree consultant to conclude this) that the aggressive siting will put pressure on further protected trees to be removed over time as a result of this development. This is why (despite the Appellant’s Tree Consultant’s view set out in Appendix D that the under-categorisation of trees not shown to be removed is of no consequence) the categorisation of all trees that stand to be affected by the development is in fact a key issue to understand at this stage and an entirely reasonable position for the Council’s Tree Officer to take.”
[16]The Appeal Statement of the Second Defendant contended that this reason for refusal essentially “comes about through a professional disagreement between the LPA’s arboricultural officer and the arboricultural consultant advising the Appellant” (para 6.4). It was submitted that “the appeal proposal provides adequate information and subject to a typical condition requiring no development until a finalised Arboricultural Method Statement is agreed with the LPA and the appropriate measures for tree protection and monitoring to take place” (para 6.7).

The Decision of the Inspector (“DL”)

[17]The Inspector conducted a site visit on 4 November 2015. The appeal was determined by way of written representations.[18]At DL4 the Inspector noted one main issue as being “the effect of the proposed development on the character and appearance of the area, having regard to its effect on protected trees”.[19]The Inspector considered the impact of the development on the trees:• The mature trees on the site make a significant contribution in terms of their amenity to the character and appearance of the street scene and the area (DL5).• At DL6 he said that the close relationship between mature trees in the wider area and residential development is a well-established one.• At DL7 he noted that the AIA submitted with the planning application indicates that no trees would need to be removed as a direct consequence of the position and layout of the proposed development, but concludes that five of the lowest quality trees would be felled in order to allow new planting, and to break up the “monoculture” of Monterey Pines currently present on the site.• He considered that the submitted site plan indicates that the majority of the proposed development is set away from the retained protected trees, and is beyond the indicated protection zones. However the plan does illustrate that with respect to Units 1 and 2 there would be some limited encroachment of the root protection zone of the protected trees, particularly by the garage of Unit 1 (DL8).• He considered how the impact of the development can be mitigated in relation to the garages to Unit 1 and Unit 3 (DL8-9).[20]At DL11-13 the Inspector turned to the Council’s criticisms of the content of the AIA and the AMS:
“11. I have carefully considered the Council’s argument, but note that despite the broad criticism levelled by the Council, no specific or detailed contrary technical evidence has been placed before me to support the Council’s contention or identify how precisely the submission fails to accord with the guidance within BS5837:2012 and therefore why it should be disregarded as suggested. Nevertheless, I have had regard to the Council’s concerns over the resultant tree loss and damage that could occur to root systems due to the construction period and intensified use of the land. However, the Council has suggested the submission of a finalised arboricultural method statement in accordance with the guidance, be secured by condition, and whilst I have had regard to the appellant’s submitted arboricultural method statement within the AIA, I consider that this is a matter which could be satisfactorily addressed and resolved by condition in the manner suggested by the Council, and I note that this is a conclusion with which the appellant agrees in the Grounds of Appeal. 12. I have also considered whether the proposed development would be likely to result in pressure to substantially prune or fell existing trees on amenity grounds. In this respect, I observed that with the retained trees essentially confined to the boundaries of the appeal site, significant areas of the site were not encumbered by the canopies of existing trees, which in any event I observed on many trees to be located at comparatively higher levels to the height of the proposed development. Furthermore, it is evidence that there is a co-existence between existing mature trees and residential development within the wider area, and I have not been provided with any compelling evidence to suggest that the Council has been unable to resist other inappropriate works to trees within the locality. On this basis, I am not persuaded that there would be significant pressure for extensive works beyond normal arboricultural management, or the removal of trees over a period of time as a result of amenity concerns. In any event, I am satisfied that the Council would retain control over the scope of works to any of the trees, and would be in a position to carefully assess any justification advanced for proposed works. 13. On the basis of the submitted evidence, the suggested conditions, and my own observations of the site, I conclude that the proposed development would not result in an unacceptable or adverse impact on the long-term vitality of the retained protected trees, and as a consequence the character and appearance of the area. I am therefore satisfied that the proposal would accord with Policy DM1 of the Poole Site Specific Allocations and Development Management Policies Development Plan Document 2012 (the Development Management DPD). The Policy seeks to ensure that development demonstrates that it has responded to a site’s specific constraints, including trees, which can make a significant contribution to the setting or character of a site, with development resulting in the loss of protected trees which make a significant contribution to the character of an area resisted.”
[21]At DL 26-29 the Inspector considered the Council’s suggestion that a number of conditions would be appropriate were the appeal to be allowed. The Inspector stated that the submission of a finalised arboricultural method statement would be in the interests of the character and appearance of the area, and also be necessary to ensure the protection and retention of protected trees (DL27).[22]The Inspector allowed the appeal subject to the conditions listed (DL30), which included: “2. Other than as required by the conditions below, the development hereby permitted shall be carried out in accordance with the following approved plans: Drawing Nos, FB4487/001 Rev.B, FB4487/002 Rev.A, FB4487/003 Rev.B, FB4487/004, and FB4487/005 Rev.A. 6. Proposals for the hard and soft landscaping of the site shall be submitted to, and approved in writing by, the Local Planning Authority. The landscaping scheme shall include provision for landscape planting, the retention and protection of existing trees and other site features, walls, fencing and other means of enclosure and any changes in levels. … 9. An arboricultural method statement prepared by an arboricultural consultant holding a nationally recognised arboricultural qualification providing comprehensive details of construction works in relation to trees shall be submitted to, and approved in writing by, the Local Planning Authority, and implemented prior to the commencement of all demolition and development. All works shall subsequently be carried out in strict accordance with the approved details. In particular, the method statement must provide the following:- (c) a schedule of tree works conforming to BS3998:2010, Tree Work – Recommendations; (h) details of all other activities which have implications for trees on or adjacent to the site.” ] (c) a schedule of tree works conforming to BS3998:2010, Tree Work – Recommendations; (h) details of all other activities which have implications for trees on or adjacent to the site.” ]

Relevant legal framework

[23]Planning decisions must be taken in accordance with the development plan unless material considerations indicate otherwise (s.38(6) of the 1990 Act).[24]Section 197 of the 1990 Act requires local planning authorities when granting planning permission to include appropriate provison for preservation and planting of trees. Section 198 provides for the making of tree preservation orders (“TPOs”). TPOs in general prohibit the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees without consent. There are a number of exceptions. Reg.14 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012 provides an exemption at sub-paragraph (1)(a)(vii) for the lopping etc. of trees “so far as such work is necessary to implement a planning permission”.[25]Section 288 of the 1990 Act provides for an appeal to the High Court against the decision of an inspector. The general principles of judicial review are applicable to a challenge under s.288. In Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) Lindblom J, as he then was, summarised at para 19 the relevant legal principles:
“(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to ‘rehearse every argument relating to each matter in every paragraph’ (see the judgment of Forbes J in Seddon Properties v Secretary of State for the Environment [1981] 42 P&CR 26 at p.28). (2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the ‘principal important controversial issues’. An inspector’s reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and anr v Porter (No. 2) [2004] 1 WLR 1953 at p.1964 B-G). (3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, ‘provided that it does not lapse into Wednesbury irrationality’ to give material considerations ‘whatever weight [it] thinks fit or no weight at all’ (see the speech of Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at p.780 F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector’s decision (see the judgment of Sullivan J, as he then was, in Newsmith v Secretary of State for the Environment, Transport and Regions [2001] EWHC 74 Admin, at paragraph 6). (4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17-22). (5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann LJ, as he then was, in South Somerset District Council v Secretary of State for the Environment (1993) 66 P&CR 80, at p.83 E-H). (6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J in Sea Land Power and Energy Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58). (7) Consistency in decision making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill LJ in Fox Strategic Land and Property Ltd v Secretary of State for Communities and Local Government [2013] 1 P&CR 6, at paragraphs 12-14, citing the judgment of Mann LJ in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P&CR 137, at p.145).”

Grounds of Challenge

[26]In the Claim Form (settled by Mr Westaway, counsel then instructed for the Claimant) the Claimant contended that the Inspector’s decision was unlawful on five grounds: i) The Inspector failed properly to consider or assess the loss of trees at the Site (Ground 1); ii) The Inspector failed to consider or assess the quality of the trees at the Site (Ground 2); iii) The Inspector wrongly deferred consideration of the impact of the development on retained protected trees (Ground 3); iv) The Inspector failed to have any or any adequate regard to the deficiencies in the Second Defendant’s AIA that were drawn to his attention (Ground 4); and v) The Inspector was seriously misled about material matters by the AIA (Ground 5).[27]On 12 May 2016 Ouseley J refused permission to challenge the First Defendant’s decision and ordered that ground 5 was totally without merit.[28]On 21 July 2016, following an oral hearing, Gilbart J granted permission for the claim to proceed on Grounds 1, 2 and 3. He refused permission on Ground 4. Ground 5 was not pursued by the Claimant. The Parties’ Submissions and Discussion Grounds 1 & 2: the Inspector failed properly to consider or assess the loss of trees at the Site (Ground 1); the Inspector failed to consider or assess the quality of the trees at the site (Ground 2)

The Parties’ Submissions and Discussion

[29]It is appropriate to consider Grounds 1 and 2 together, as the Claimant and Ms Hutton, who appears for the First Defendant, agreed.[30]The Claimant submits that it is clear that the proposal involved the loss of protected trees along Bessborough Road, and that the Inspector found that those trees “make a significant contribution in terms of their amenity to the character and appearance of the street scene and the area” (DL5). That being so there is a conflict with Policy DM1 (see para 11 above) which the Inspector erred in not assessing. Indeed he erroneously found that the proposal complied with DM1. His conclusion at DL13 that the proposal complied with Policy DM1 is restricted only to the “retained” protected trees, but on his own analysis conflict arose and failed to be assessed in respect of protected trees to be removed. It is not possible, the Claimant contends, to understand from the DL how the Inspector addressed the conflict.[31]The Claimant suggests it is not clear from the DL whether the Inspector was even aware that protected trees were intended to be felled.[32]Further, the Claimant submits, the Inspector failed to consider the impact of the loss of the protected trees anywhere in the DL. He does not note that four mature trees in a row on the site (T5, T6, T8 and T9) were marked to be removed nor does he give an assessment of this loss and its impact on the site, street scene or amenity of the area. Indeed the Inspector does not state how many trees he thinks is acceptable to be felled and which trees they are; nor does he assess the quality of the trees, either those retained or those to be removed. The AIA on which the Inspector relied was inconsistent about the number of trees that required removing as a result of the development (the Executive Summary refers to three; para 1.4 to four; para 3.2 and 5.1 to five; and Table 2 to felling six).[33]Ms Hutton makes, in summary, three submissions. First, the loss of certain trees as a result of the development was not a main matter in dispute and therefore the Inspector was not required to address it explicitly in his decision. Second, in any event, the Inspector did consider tree loss at the site; and third, in any further event, this ground cannot succeed due to the operation of conditions 6 and 9 of the permission (see para 22 above).

Whether loss of certain trees was a main matter in dispute

[34]I accept Ms Hutton’s submission that in order to establish whether the loss of certain trees on site was a main matter in dispute it is necessary to consider the application and appeal made by the Second Defendant, and the positions taken by the Claimant, the Council and other interested parties in relation to these particular trees.[35]The Second Defendant’s case was that the removal of the trees would be of planning benefit to the scheme. The AIA stated that no trees would be required to be felled due to the location of new buildings or outbuildings, but one category U tree and four category C trees are shown for removal to improve the amenity areas of the new dwellings (see para 6 above). The AIA further stated (at para 4.4) that:
“By removing the lowest quality trees new tree planting becomes an option to disrupt the current monoculture. The new planting can be ensured by means of a planning condition. By careful species selection we can enhance and improve the biodiversity of the area improving its long term amenity in accord with the Borough of Poole local plan.”
[36]The Council’s reason for refusal (in relation to trees) did not, Ms Hutton submits, take issue with the loss of the five trees (see para 10 above).[37]The officer’s report on which the Council relied (see para 13 above) did not, Ms Hutton contends, take issue with the quality of the five trees which would be lost or the negative planning impact of the loss of those five trees.[38]The Claimant, Ms Hutton submits, also did not raise an issue with regards to the loss of the five trees (see para 14 above).[39]It was only the Society, an objector, which referred to the loss of the trees now and in the future (see para 15 above). However it is unclear from the Society’s comments, Ms Hutton suggests, whether they are directed at the trees to which the application proposed to be removed or the possibility of further tree removal due to the impact of the buildings on nearby trees.[40]I reject this submission. I consider it clear that the Claimant, the Council and the Society were objecting to the loss of any trees that the AIA stated were to be felled.[41]That being so, I am led to the conclusion that the removal of the five trees was one of the main issues in dispute that the Inspector was required to address in his decision letter.

Whether the Inspector considered tree loss at the Site

[42]The Inspector identified one of the main issues as “the effect of the proposed development on the character and appearance of the area, having regard to its effect on protected trees” (DL4). Within the Reasons section of his decision he referred to the Appellant’s AIA and stated that: “The AIA indicates that no trees will need to be removed as a direct consequence of the position and layout of the proposed development, but concludes that five of the lowest quality trees would be felled in order to allow new planting, and to break up the ‘monoculture’ of Montery Pines currently present on the site.” (DL7). At DL11 the Inspector considered the Council’s criticisms of this document and rejected them.[43]There was an issue before the Inspector as to the quality and categorisation of the trees. The Second Defendant’s contention was that the trees to be removed were of the lowest quality; the Council contended that “virtually all the trees on site are of sufficient quality, condition and life expectancy to warrant retention”, and the officer’s report stated that “at least 11 of the trees which have been categorised as C2 in the [AIA] are considered to be better quality and should be B category”. The Claimant submits that the Inspector failed to resolve this issue. I disagree. The Inspector did assess the quality of the five trees to be lost. He accepted the assessment in the AIA. Ms Hutton makes the point that the Claimant has been refused permission to advance Ground 4 in the Claim Form, namely that the Inspector failed to have any or any adequate regard to the deficiencies in the AIA that were drawn to his attention, (and Ground 5, that he was seriously misled about material matters by the AIA).[44]The Inspector plainly understood that it was intended that 5 of the lowest quality trees (4 of which were protected Monterey Pines in the Bessborough Road frontage) would be lost as a result of the proposed development. Having accepted the content of the AIA, as in my view he was entitled to, for the reasons given (see DL11), and having correctly construed Policy DM1 the Inspector reached the conclusion that the proposal would accord with that policy. The Policy seeks to ensure, as the Inspector correctly noted, that development demonstrates that it has responded to site specific constraints, including trees, which can make a significant contribution to the setting or character of a site, with development resulting in the loss of protected trees which make a significant contribution to the character of an area resisted (DL13). When the DL is read as a whole it is, in my view, apparent that the Inspector accepted the conclusions of the AIA which were that the loss of the trees would engender a planning benefit. There was, in my judgment, nothing unlawful about this decision.

The operation of Conditions 6 and 9

[45]Ms Hutton submits that in any event the appeal on grounds 1 and 2 cannot succeed as a result of conditions 6 and 9 which the Inspector imposed on the permission. The evidence, which the Inspector accepted, was that the trees which would be removed as a result of the scheme were merely to allow new planting and to break up the monoculture of Monterey Pines on the site. Therefore, the Inspector, Miss Hutton submits, accepted that their removal was not a necessary result of a grant of permission. Condition 9 of the permission gives the Council control over any works to be conducted to trees on site. Patently, she submits, this includes those to be removed. Further, condition 6 requires approval by the Council of proposals for the hard and soft landscaping of the site (including provision for the retention and protection of existing trees).[46]The Claimant contends that condition 9 (and condition 6) relate to works on retained trees, not on trees shown to be felled. The reason given by the Council for the imposition of condition 9 (then condition 11) referred expressly to “trees to be retained” (see para 12 above). Further, condition 9 provides for the submission of information on “activities which have implications for trees on or adjacent to the site”; it does not address the principle of tree loss (Reply, para 24).[47]In my view DL11 and 12 are clear. The Inspector knew from the Report (see paras 6-8 above) and the representations of the Council, the Claimant and the Society (see paras 12-15 above) that there were issues between the parties that encompassed both loss of trees (to be felled during the building out of the development) and damage to trees in the future (as a result of the works). The Inspector decided, having considered the competing contentions and the Council’s concerns, to impose condition 9. The decision letter states at DL12:
“In any event, I am satisfied that the Council would retain control over the scope of works to any (emphasis added) of the trees, and would be in a position to carefully assess any justification advanced for proposed works.”
[48]There is, in my view, no justification for excluding from the ambit of condition 9 the trees that were shown for removal in Table 2 of Appendix B to the AIA. Such an interpretation is not warranted by the terms of condition 9. Further I note that the AIA referred under the heading “Potential Impact Upon Retained Trees” (emphasis added) to the trees that are shown for removal (see para 6 above). Para 7.3 of the AMS states that prior to commencement “the tree works discussed in Table Two of Appendix B shall be implemented”. The effect of condition 9 is that tree works may only be carried out in accordance with the details of an AMS that is to be submitted to, and approved in writing by, the local planning authority, and implemented prior to the commencement of all demolition and development.

Summary on Grounds 1 and 2

[49]I am satisfied that the Inspector took account of the development impact on both those trees which he knew were to be felled and those that were to be retained (Ground 1). He was equally aware of the “quality” of the trees both from the AIA and his own site inspection and took that information into account in concluding that the impact on the trees would not as a matter of judgment adversely affect the character and appearance of the area (Ground 2). The appeal on grounds 1 and 2 cannot succeed in any event as a result of the imposition of Condition 9 of the permission. Ground 3: The Inspector wrongly deferred consideration of the impact of the development on retained protected trees[50]The Claimant contends that the Inspector’s consideration of impacts was limited to the impacts on the retained trees, however he failed in fact to consider those impacts and wrongly deferred consideration to future occasions which was unlawful. The Inspector was required to take into account the potential arboricultural impacts as part of his decision on the principle of development (Details of Claim, para 39).[51]This is not correct. The Inspector in fact gave substantial consideration to the impacts on retained trees. First, with regards to encroachment of buildings on root protection zones in respect to Units 1 and 2 he analysed the evidence and concluded that a reasonable response and mitigation had been proposed by the Second Defendant (DL8-9). Second, with regard to the impacts of demolition of the existing garage and construction of the attached garage to Unit 1 he was satisfied that “it would be possible to secure an appropriate methodology and level, for the protection of trees” (para 9). Third, with regard to pressure to substantially prune or fell existing trees on amenity grounds, he was not persuaded that “there would be significant pressure for extensive works beyond normal arboricultural management, or the removal of trees over a period of time as a result of amenity concerns” (DL12). In any event he was satisfied that the Council would retain control over the scope of works to any of the trees, and will be in a position to carefully assess any justification advanced for proposed works (DL12, and see Conditions 6 and 9). I reject the Claimant’s contentions to the contrary.[52]It is contended on the Claimant’s behalf (see para 44 of the Details of Claim) that while the Council would be able to consider applications for tree preservation order consent from home owners, the justification for such applications would only arise because of the development. In St Vincent Housing Association Ltd v SSCLG [2011] EWHC 3339 (Admin) the High Court held that an inspector was correct to have regard to the likelihood of a local authority being unable to resist TPO applications. The Inspector here gave no consideration to the point. The Claimant contends that it was not appropriate to defer proper assessment because once the development is constructed and inhabited it will be too late to question the justification behind TPO applications made on amenity grounds, particularly if the trees cause a nuisance (see s.198(6) of the 1990 Act).[53]I accept Ms Hutton’s submission that in the light of the Inspector’s conclusion that there would not be significant pressure for extensive works beyond normal arboricultural management, or the removal of trees over a period of time as a result of amenity concerns (DL12). The St. Vincent decision does not assist the Claimant.[54]In her written submissions the Claimant has attempted to expand upon ground 3 in the Details of Claim, in respect of which permission was granted, in two respects. First, she seeks to argue that the AIA was deficient (see paras 90-97). However Ground 3 as originally pleaded does not allege deficiencies in the AIA (that was the subject of Ground 4 for which permission has been refused, see para 43 above). Second, she has further expanded this ground to allege that Condition 9 was defective and there was a breach of s.197 of the 1990 Act (see paras 88 and 98-102 of Claimant’s written submissions). There was no allegation in the Claim Form that Condition 9 was invalid or unlawful. Miss Hutton observes that is unsurprising as it is a perfectly proper and lawful approach for the Inspector to have taken. I agree with Ms Hutton that neither of these two additional points can be argued on this statutory appeal. Events post-decision of the Inspector The “ring barking” of protected trees

Events post-decision of the Inspector

[55]It appears that on 28 March 2016 four Monterey Pines were “ring-barked” with chainsaws allegedly by the Third Defendant. These trees were the trees shown in the Report to be felled “Prior to commencement of work” (Table 2, Tree Work Required). The Claimant’s position is that this was deliberate, destruction action not justified by the need to implement the planning permission. (See Reply, paras 3 and 6).[56]However, as Ms Hutton observes, the present claim is concerned with the lawfulness of the Inspector’s decision made on 11 February 2016. It is not for this court to determine whether the trees were ring-barked unlawfully or in breach of the TPO.

An earlier decision made in 2011 relating to Monterey Pines on the site

[57]Since filing the claim the Claimant became aware of a TPO consent application made by the Second Defendant on 3 February 2011 to carry out works to and fell a number of trees at the Site. The Council refused to consent to the felling of Monterey Pines along Bessborough Road and an appeal against that decision was dismissed by a planning inspector on 2 August 2011. The Inspector stated that “the belt of trees (mainly pines) on the southern and western boundary of No.1 Beaumont Road provides high public amenity value to this residential part of Canford Cliffs” (DL13). He noted that removal of T11 and T13 (identified in 2015 as T8 and T9) “would leave a significant gap in the belt of pines. This would cause material erosion of the cohesion of the belt, and significantly reduce its landscape impact” (DL14). The Claimant submits that this decision supports her position that had there been proper regard to the loss of the trees along Bessborough Road it is likely it would have made a difference (Reply, para 6).[58]In my view the 2011 decision cannot assist the Claimant for the reasons advanced by Ms Hutton. It was not before the Inspector in making the decision under challenge. Further, it relates to the planning judgment of a different decision maker in relation to a different planning context (an application to remove the trees without any built development), reached almost five years before the impugned decision.

Conclusion

[59]For the reasons I have given none of these grounds of challenge are made out. This application is accordingly dismissed.