Thompson v Pendle Borough Council

A person aggrieved by a tree preservation order must show a sufficiently substantial connection with the planning process or a relevant interest in the affected land. A commercial interest in carrying out tree-felling work, or a speculative expectation of future work or accommodation, is insufficient.

Procedural defects in making or confirming an order do not justify quashing it unless they caused substantial prejudice to the claimant’s interests. The court retains a discretion to quash even where that threshold is met. An authority’s assessment that trees have amenity value is not unlawful merely because another view is possible, provided its reasoning is rational and legally sound.

The claimant challenged provisional and varied tree preservation orders made by Pendle Borough Council in respect of nine trees under the Town and Country Planning Act 1990. The orders were made urgently after the Council was told that the trees might be felled.

The claimant had carried out occasional work for the landowner’s company and expected further work if a proposed residential development proceeded. He had not himself objected to the order, attended the Council meeting, or acquired an interest in the affected land. He alleged defects concerning the identification of the trees, notices, confirmation, and variation of the order. The central issues were whether he was a person aggrieved with standing under section 288 and, if so, whether the procedural defects caused substantial prejudice or rendered the Council’s decision unlawful.

1. Standing. The claim was dismissed. Under section 288, standing required more than an economic or personal interest in the outcome. The claimant had to be either a person who had taken a sufficiently active role in the planning process, such as a substantial objector, or a person with a relevant interest in the affected land. The principles in Eco-Energy v First Secretary of State [2004] EWCA Civ 1566 and Bown v Bristol City Council [2009] EWHC 1747 were applied.
2. The claimant had made no objection in his own name, had not attended the relevant meeting, and had made no other representations. His occasional work for a company connected with the landowner did not make him a substantial objector. A speculative promise of future accommodation or work on a property not yet built and without planning permission could not amount to a relevant interest in the land.
3. Procedural defects. The court considered the procedural grounds notwithstanding the lack of standing. Errors included an incomplete statutory reference in the confirmation notice, failure to include regulation 4 with the provisional-order notice, failure initially to specify the number and species of trees, and failure accurately to record that confirmation was with modification. Those were technical breaches, but none caused substantial prejudice within section 288(5).
4. The relevant question was whether the particular procedural failure had substantially prejudiced the claimant’s interests, not whether the making of the order as a whole had caused him economic loss. Everyone concerned knew which trees were covered, the objections were made in substance, and the defects did not affect the decision that the order should be made.
5. The later variation order merely identified the number and types of trees already within the order. Regulation 8(2) applied only where an order was varied to add trees, groups of trees or woodland not previously covered. It did not apply to this corrective variation.
6. Amenity value. The Council’s officer had assessed the trees as a roadside feature, a screen for nearby houses and a valuable component of the grassed area. The decision-making process was rational and disclosed no error of law. The challenge to the substantive decision therefore failed.
7. The claim was dismissed. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed. The defendant was directed to notify him by 18 May 2011 whether it intended to pursue the costs order.