Fowler, R (on the application of) v London Borough of Ealing

A tree preservation order may lawfully include a diseased or potentially dangerous tree where the local planning authority has rational material supporting the view that the tree has sufficient life to warrant preservation. The statutory exemption for cutting down dangerous trees does not prevent the order being made.

Whether a plant is a tree is judged by its ordinary English meaning and may depend on context. A court should not interfere merely because another view is reasonably available. Misfeasance requires cogent evidence and is not established by delay, disagreement with expert evidence, inaccuracy or an honestly held mistake.

The claimant appealed under section 288 of the Town and Country Planning Act against the defendant local planning authority’s confirmation of a tree preservation order covering nine trees at a listed property. The challenge concerned a diseased chestnut, two arbutus said to be shrubs rather than trees, and alleged misfeasance by council officers.

The chestnut had subsequently been removed after a successful appeal to a Secretary of State inspector against refusal of consent to remove it. The issues were whether the order could lawfully cover the chestnut, whether the arbutus were trees, and whether alleged misconduct justified quashing the order.

1. Appeal dismissed. The tree preservation order was upheld. The claimant was ordered to pay the defendant’s costs, summarily assessed at £3,500.
2. Under section 198 of the Town and Country Planning Act, the authority could make an order where it appeared expedient in the interests of amenity to preserve trees. Section 198(6), which exempted cutting down or other operations on dying, dead or dangerous trees, did not create a legal prohibition against including such a tree in the order. The authority could reasonably conclude that the chestnut retained sufficient life to justify protection, even though that view later proved wrong.
3. The fact that a tree was diseased did not necessarily make an order inappropriate. One purpose of protection was to secure replacement planting where removal became necessary. The landowner’s protection lay in the statutory ability to undertake dangerous-tree work, subject to the risks of acting without first seeking consent.
4. The Act contained no definition of “tree”. The expression therefore bore its ordinary English meaning. The classification of the two arbutus involved an evaluative question, potentially affected by their form and context. It was not irrational or unlawful for the authority to regard them as trees.
5. The allegation of misfeasance could not succeed on the evidence. The claimant had not shown a proper basis for inferring an ulterior motive. A disagreement with an arboricultural report, even if later shown to be mistaken, was not equivalent to dishonesty or misfeasance. The appeal procedure was not an appropriate vehicle for resolving disputed allegations requiring oral evidence.
6. Any error concerning the chestnut would not in any event justify quashing the whole order, since the authority could immediately have made a replacement order.

The judgment records that the claimant had previously appealed to a Secretary of State inspector against the local authority’s refusal of consent to remove the chestnut. The inspector found in his favour, and the tree was subsequently removed. The present statutory appeal under section 288 was dismissed by the Administrative Court.