St Vincent's Housing Association Ltd v Secretary of State for Communities and Local Government

A planning inspector may assess the likely consequences of proposed development for protected trees, including the risk that future occupiers will seek their removal. Such predictions are lawful where supported by the development layout, the degree of shading, relevant planning policy and the inspector’s specialist experience. The inspector need not express the prediction in precise statistical terms. Adequate reasons may be given by explaining that the proximity of the trees and the degree of shadow would make it difficult for the local planning authority to resist future applications on safety and amenity grounds. The court may uphold the decision where any alleged error would not have affected the outcome.

The claimant, a registered provider of social housing, challenged under section 288 of the Town and Country Planning Act 1990 a planning inspector’s decision dated 29 March 2011. The inspector had refused permission for ten bungalows on green-field land at Shelf, Halifax.

The challenge concerned the inspector’s treatment of mature trees protected by a tree preservation order. The claimant argued that there was no evidence for predicting that future occupants would regard the trees as a nuisance or danger, that the local planning authority would permit their removal, or that a further 20 trees would consequently be lost. It also argued that the inspector’s reasons were inadequate and that the alleged errors could have affected the balancing exercise.

1. The application was unsuccessful. The inspector was entitled to treat the tree shadow zone plan, produced on behalf of the claimant, as representing the proposed development’s circumstances, even if it showed a worst-case position.
2. The inspector was entitled to take account of the likely effects of large trees, including shading, dampness, darkness, debris, noise and possible nuisance or danger. These were matters of ordinary common sense, supported by the development plan’s discussion of shade cast and its policy seeking to prevent unacceptable overshadowing by retained trees.
3. The inspector was also entitled to predict that future applications to fell the protected trees would be difficult for the local planning authority to resist on safety and amenity grounds. His specialist status and the relevant policy commentary provided a sufficient basis for that conclusion. The prediction did not require a stated numerical probability.
4. The reasons were adequate. The inspector explained that the proximity of the trees and the degree of shadow cast would make it difficult to resist applications for felling. That was sufficient to explain the anticipated loss of trees.
5. In any event, the alleged error concerning the likely removal of a further 20 trees was immaterial. Whether the trees were removed or retained, the inspector considered that their relationship with the proposed bungalows created a planning problem. The refusal would therefore have remained justified.
6. Permission to appeal was refused because there were no real prospects of success and no other sufficient reason for an appeal. Costs were awarded to the defendant, subject to reductions agreed or directed by the judge.

The judgment does not state a prior court decision. It records a statutory challenge to a planning inspector’s decision dated 29 March 2011.