Robinson, R (on the application of) v Secretary Of State For Environment, Transport & Regions & Anor

For a tree preservation order to be lawful, the authority must comply with the relevant statutory requirements and undertake a real, sufficiently informed amenity assessment. Although the Town and Country Planning (Trees) Regulations 1999 did not expressly require a survey, a perfunctory exercise could undermine the order. A map copied from an earlier order could likewise be vulnerable if it showed no genuine reconsideration. The availability of a later planning application or appeal did not necessarily cure such defects, because the order itself could affect that process. The Regulations permitted trees to be specified by reference to an area. A challenge based on Article 6 of the European Convention on Human Rights failed where the system remained subject to judicial review and section 288 of the Town and Country Planning Act 1990.

Mr Robinson sought permission to appeal Sullivan J’s order of 16 January 2002, which dismissed two applications. The first challenged under section 288 of the Town and Country Planning Act 1990 a tree preservation order made by East Riding of Yorkshire Council over trees at Marton Hall. The second sought permission for judicial review of the promulgation of the Town and Country Planning (Trees) Regulations 1999.

The central issues were whether the Regulations permitted area-based identification of trees, whether the Council had carried out a proper survey and reconsidered its map, whether objections and alleged bad faith required further inquiry, and whether the planning and tree-preservation arrangements complied with Article 6.

Disposition. Permission to appeal was granted in restricted form in the proceedings against East Riding of Yorkshire Council. Permission was refused in the proceedings against the Secretary of State and on the remaining grounds. Extensions of time were granted for both applications, with no order as to costs.

1. The challenge to the Regulations failed. The Town and Country Planning (Trees) Regulations 1999 had to be read as a whole. Schedule 1 contemplated trees being specified individually, by reference to an area within a marked line, or as a group or woodland. The requirement in paragraph 2(1)(b) to state the number of trees applied to a group and did not exclude area-based specification.
2. Although the Regulations did not expressly require a survey, a council could not sensibly decide whether a tree preservation order was justified in the interests of amenity without some form of survey. If no proper survey had been undertaken, that might undermine the order as effectively as no survey at all. The judge therefore erred in treating the existence of a survey as sufficient and in refusing cross-examination on its adequacy. The issue was remitted for consideration on appeal; the court did not finally determine whether the survey was adequate.
3. The map ground was arguable to the extent that the map might simply reproduce the earlier, unconfirmed order without genuine reconsideration. If a proper survey and full reconsideration had occurred, complaints about later buildings, roads or scale were technical and unlikely by themselves to have materiality.
4. The availability of a later planning application or appeal did not necessarily cure a defective order, because the order itself could be an obstacle or relevant consideration. The consultation complaint, the challenge to the area order, and the allegation of bad faith by the confirming subcommittee disclosed no sufficient ground. The officers’ bona fides formed part of the survey inquiry.
5. The Article 6 complaint was untenable. The planning and tree-preservation systems were compliant where decisions remained subject to judicial review and section 288 safeguards, consistent with the observations in R v Alconbury Limited v Secretary of State for the Environment Transport and the Regions [2001] 1 WLR 1389.
6. The Secretary of State’s late costs statement meant that the judge might have declined detailed assessment, but did not prevent summary assessment. The £2,000 costs order disclosed no realistic ground of appeal.

• Court of Appeal (Civil Division): Permission to appeal granted in restricted form against the Council; otherwise refused. [2002] EWCA Civ 530.
• Administrative Court, Queen’s Bench Division: Sullivan J dismissed Mr Robinson’s section 288 challenge and judicial review permission application by order dated 16 January 2002.