Robinson v East Riding of Yorkshire Council

An application under section 288 of the Town and Country Planning Act 1990 examines the validity of a tree preservation order, not its planning merits. The legislation does not require a formal tree survey before an order is made. A physical inspection will often be appropriate, but its adequacy is ordinarily relevant only insofar as it affects statutory validity. An area order may lawfully be used, particularly in an urgent case, although detailed inspection and more precise classification represent good practice. A map complies with the regulations if it adequately indicates the position of the protected trees or woodland. Cross-examination on a section 288 application is exceptional and was unnecessary where it could not affect the validity of the order.

The appellant owned Marton Hall, a listed building surrounded by extensive land and trees. The respondent local planning authority made a provisional tree preservation order after an earlier order had lapsed, and confirmed it following the appellant’s objections.

The appellant challenged the confirmed order under section 288 of the Town and Country Planning Act 1990. Sullivan J dismissed the challenge. Permission to appeal was granted on issues concerning the adequacy of the inspection, the accuracy and scale of the plans, and whether the council had genuinely reconsidered the need for the order.

1. Appeal dismissed. The court’s jurisdiction under section 288 of the Town and Country Planning Act 1990 was limited to the validity of the tree preservation order, including whether it was within the statutory powers and whether relevant procedural requirements had been met. The court was not entitled to review the merits of the order.
2. Section 198 required the local planning authority to judge whether preservation was expedient in the interests of amenity. Neither section 198 nor the Town and Country Planning (Trees) Regulations 1999 imposed a formal survey requirement. A site inspection would often be appropriate, but the relevant question was whether the statutory test and procedural requirements had been satisfied.
3. The departmental guide was guidance rather than a statutory code. An area order was not unlawful merely because it covered a broad area or because a more detailed exercise had not yet been completed. Nevertheless, detailed inspection and classification were good practice, and an area order should not ordinarily continue for a substantial period where more precise protection was appropriate.
4. The plans adequately indicated the position of the trees and woodland as required by regulation 2. Alleged inaccuracies or deficiencies in other respects did not invalidate the order where the statutory objective had been met.
5. Cross-examination on a section 288 application was unusual and appropriate only in exceptional circumstances. The proposed cross-examination concerned the quality and duration of the officer’s inspection, matters which could not affect the validity of the order on the evidence. Sullivan J was therefore entitled to refuse it.
6. Lord Justice Thorpe and Lord Justice Pill agreed. The order was dismissed with costs, summarily assessed at £5,023.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld Sullivan J’s dismissal of the section 288 challenge.
• High Court, Queen’s Bench Division, Administrative Court: Sullivan J dismissed the substantive challenge to the confirmed tree preservation order. Forbes J had earlier dismissed the council’s strike-out application.