Evans v First Secretary of State & Anor

On an application under Town and Country Planning Act 1990, an inspector may treat the harmful effect of a proposed use on tree cover as a material planning consideration independently of the continuing legal status of a Tree Preservation Order. A failure to review an area Tree Preservation Order does not prevent the inspector from assessing the likely effect of development on important trees. An inspector who identifies clear adverse effects sufficient to justify refusal need not explain why proposed conditions would not overcome them, unless the conditions are advanced as overcoming the identified objections.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of an appeal against refusal of permission to retain the use of land for the sale and display of retail goods until 30 September 2007. The site was subject to an area Tree Preservation Order made in 1991 and a woodland order. The claimant argued that the inspector had exceeded her powers by relying on the unreviewed Tree Preservation Order and had failed to give adequate reasons by not addressing draft planning conditions.

1. Application dismissed. The inspector had not erred in law or failed to fulfil the requirements governing the decision.
2. The inspector was entitled to consider the potential adverse impact of the continued use on trees. Although the Tree Preservation Order was a material consideration, the inspector’s conclusion did not depend solely on the Order. The harmful effect of the proposed use on tree cover was an appropriate planning consideration. The absence of a recent review did not remove that consideration.
3. The inspector had identified two principal issues: harm to the character and appearance of the surrounding area, including the setting of a listed building, and harm to protected trees. She concluded that the continued use was harmful in both respects and that those effects justified refusal.
4. The inspector was not required to address draft landscaping and archaeological conditions. They had been discussed as conditions which the local planning authority would seek if permission were granted, rather than as conditions capable of overcoming the objections. Had the claimant submitted that the conditions would remove or sufficiently mitigate those objections, reasons for rejecting that submission would have been required.
5. The application was dismissed. The Secretary of State was awarded costs assessed at £4,345. Permission to appeal was refused because the proposed grounds had no reasonable prospect of success.

First-instance judicial review proceedings under section 288 of the Town and Country Planning Act 1990. The application challenged an inspector’s decision dismissing a planning appeal.