Brennon, R (on the application of) v Bromsgrove District Council

A tree preservation order is valid if it identifies the protected trees sufficiently to remove doubt, even if the plan contains immaterial inaccuracies. The authority need not conduct a formal survey or give separate reasons for each tree or group. Brief reasons may suffice where the decision involves a planning judgment under the Town and Country Planning Act 1990. A later order may adopt a different classification from an earlier urgent order. The statutory scheme, including representations and appeals against refusal of consent, provides adequate safeguards for property, home and fair-hearing rights.

The claimant sought to quash a tree preservation order confirmed by Bromsgrove District Council under section 288 of the Town and Country Planning Act 1990. He alleged procedural defects concerning service, endorsement, reasons and identification of the trees, abuse of power, irrationality, and breaches of Articles 1 of Protocol 1, 8 and 6 of the Convention.

The challenged order replaced an earlier urgent order and individually identified two ash trees and a group of ash trees. The claimant made no representations before confirmation and later challenged the order after the council refused to accept representations out of time. The central issues were whether the order complied with the statutory regulations and whether the statutory scheme and its application were Convention-compliant.

The claim was dismissed. The court rejected each ground of challenge.

1. Service and endorsement. Regulation 6 of the Town and Country Planning (Trees) Regulations 1999 required service of a further copy of the order only where it had been confirmed with modifications. Where confirmation was without modification, service of a confirmation notice was sufficient because the claimant already had the provisional order. Regulation 5 did not require the schedule or map to be separately endorsed. The endorsement on the body of the order was sufficient because the schedule and map formed part of that order.
2. Prejudice. Even if there had been a technical procedural defect, section 288 required substantial prejudice. None was shown.
3. Reasons and identification. The reasons that the trees had special amenity value and that the order was made in the interests of amenity were brief but adequate. The authority was not required to provide separate reasons for each tree or group. The trees were sufficiently identified. Any inaccuracies in the plan or number of trees were immaterial because there was no real doubt about which trees were protected. The principles in Robinson v Secretary of State for the Environment, Transport and the Regions were applied.
4. Change of approach. The council was entitled to replace an urgent area-based order with an order identifying trees individually or by group after assessment. The earlier order did not prevent that course, and there was no abuse of power or irrationality.
5. Convention rights. The statutory scheme struck a fair balance between the community interest and individual property rights. Its safeguards also justified interference with the right to respect for the home under Article 8. The court was not required to resolve disputed evidence about the condition of the trees, particularly since the claimant had made no representations before confirmation.
6. Article 6. The council’s factual findings were merely staging posts to the broader planning judgment required by section 198. Representations, the right to seek consent and a section 78 appeal, together with judicial review under section 288, provided sufficient safeguards. The reasoning in Alconbury Developments Ltd v Secretary of State for the Environment, Transport and the Regions and Begum v London Borough of Tower Hamlets supported that conclusion.

The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.