Aspdin, R (on the application of) v Derby City Council

A procedural failure in the confirmation of a tree preservation order does not necessarily justify quashing the decision. The court must assess whether the failure caused substantial prejudice and may consider a subsequent, fair reconsideration by the decision-maker. Where the later reconsideration properly addresses the omitted material and reaches the same conclusion, that may demonstrate that the original outcome would not have changed. A decision appearing regular on its face attracts a presumption of regularity. The claimant bears the burden of rebutting that presumption and proving the alleged procedural defect. Costs ordinarily follow the event, subject to the court’s discretion.

The claimant, executor of the estate of the late Mr Smith, challenged under section 288 of the Town and Country Planning Act 1990 the making and confirmation by Derby City Council of a tree preservation order concerning a pine tree at 27 Penny Long Lane.

The claimant objected to the order and supplied a colour aerial photograph which he said was an important part of his representations. Through administrative error, the Planning Control Committee initially received only a poor-quality black and white copy and omitted the accompanying text. The Committee later reconsidered the order with the colour photograph available and confirmed its original decision.

The claimant also challenged the validity of the order on the ground that the corporate seal might not have been witnessed in accordance with the Council’s procedures. The issues were whether the procedural failure required the confirmation to be quashed and whether the original order was properly executed.

1. The claim was dismissed. The failure to provide the colour photograph at the first meeting was a relevant procedural failure. It could be analysed either as a failure to consider the objection under Regulation 5(1) of the Town and Country Planning (Trees) Regulations 1999 or as a breach of procedural fairness.

2. The claimant nevertheless failed to establish substantial prejudice. The photograph principally illustrated a point already addressed in the officer’s report: its raised perspective did not show how the tree appeared from the public highway or accurately represent its public amenity value.

3. The Committee’s later reconsideration was full and fair. Members were directed to review the original decision in light of the photograph and were told that they could revoke the order or leave it in place. The photograph was available at the meeting and was considered. The Committee reached the same conclusion, which fortified the view that the initial omission could not have affected the result.

4. Although the later reconsideration occurred after the six-month period for confirmation had expired, the court would in any event have declined to exercise its discretion to quash the original confirmation. The Council had determined that the tree had sufficient amenity value to warrant protection, and that substantive assessment was not challenged.

5. The challenge to the execution of the original order also failed. The order was regular on its face, bearing the Council seal and the signatures of two authorised persons. The presumption of regularity applied. The claimant bore the burden of proof and had not discharged it merely by showing that a signatory could not specifically recall witnessing the seal’s application.

6. The claimant was ordered to pay the Council’s costs, summarily assessed at £3,237.38 on the standard basis, payable within 14 days. There was no justification for indemnity costs.

First-instance decision. No earlier judgment or appeal decision is stated in the judgment.