Gilman, R (on the application of) v Rutland County Council & District Council

A Tree Preservation Order may be made only where the local planning authority considers it expedient in the interests of amenity. The committee must receive a fair and accurate report identifying the relevant risks and explaining why making the order is expedient. A report which falsely presents the choice as confirmation of the order or the likely felling of the trees materially misleads the decision-maker. Where the court cannot conclude that the committee would inevitably have reached the same decision without the misinformation, the confirmation must be quashed.

The claimant brought an appeal under section 288 of the Town and Country Planning Act 1990 against the defendant council’s confirmation of a Tree Preservation Order covering four trees at his property. The council’s report stated or implied that, unless the order was confirmed, the trees would be felled as part of redevelopment. The claimant’s planning application had specifically stated that the trees would not be affected. The central issue was whether the committee had been materially misdirected when deciding whether confirmation was expedient in the interests of amenity.

1. The appeal was allowed and the council’s confirmation of the Tree Preservation Order was quashed.
2. Under section 198(1) of the Town and Country Planning Act 1990, the relevant question was whether it appeared to the local planning authority that it was expedient, in the interests of amenity, to make provision for preserving the trees. The committee was entitled to form its own view on the trees’ amenity value, and no error of law was established in that assessment.
3. The report nevertheless materially misled the committee. Its conclusions conveyed that the trees would be felled unless the provisional order was confirmed, although the planning application expressly excluded damage to or removal of the trees. The report also suggested that expiry of the provisional order would require a fresh order to prevent felling. That presentation was not supported by the evidence.
4. The court rejected the submission that the committee would inevitably have reached the same decision. There was no unanimity about the trees’ amenity value, and the committee had to reconsider the matter on the basis of a fair and proper report, taking account of the claimant’s stated intention not to fell the trees.
5. The human-rights argument did not require determination. The system of Tree Preservation Orders was described as Convention-compliant, although such an order could in some circumstances diminish property value or complicate planning permission. The issue was left undecided because the misleading report independently required the decision to be quashed.
6. Costs were ordered against the council, subject to detailed assessment if not agreed.