EU Plants Ltd v Wokingham Borough Council

A statutory challenge to a Tree Preservation Order is concerned with legality, not a review of planning merits. The court will intervene only where the order is outside the statutory power, relevant requirements were not met, or the decision is unlawful on a public law ground.

Under section 198 of the Town and Country Planning Act 1990, an authority may make an area order where it is expedient in the interests of amenity. The authority may consider the collective amenity of the trees, the risk arising from proposed changes in land use or management, and whether a precautionary order is needed to secure appropriate management.

Democratically accountable councillors may be predisposed by policy and constituency concerns, provided they retain an open mind, consider material matters and fairly address relevant representations. The fair-minded and informed observer test governs apparent bias.

EU Plants Ltd applied under section 288 of the Town and Country Planning Act 1990 to challenge Wokingham Borough Council’s confirmation of a Tree Preservation Order protecting trees within a strip beside a permissive path at Manor Farm.

The applicant argued that the Council had misunderstood arboricultural evidence, acted contrary to relevant guidance, lacked a proper basis for finding expediency, and proceeded on an improper purpose concerning a proposed farm track. It also alleged actual or apparent bias because the chairman of the Planning Committee lived nearby, had discussed Tree Preservation Orders with the applicant’s managing director, and had communicated with local residents.

The central issues were whether the Order was within the Council’s statutory powers and whether the decision-making process was affected by bias or apparent bias.

1. The application was dismissed. Section 288 provides a legality challenge and does not permit the court to review the planning merits. The decision letter is not scrutinised as if it were a contract or statute, and irrationality presents a particularly difficult hurdle in this context.
2. The Council was entitled to conclude that it was expedient in the interests of amenity to confirm the area TPO under section 198(1) of the Town and Country Planning Act 1990. It was open to the Council to treat the removal of self-sown trees as tree felling, to consider the risk associated with the existing agricultural track and proposed roadway, and to take a cautious view of the applicant’s stated intentions in light of substandard pruning.
3. The arboricultural evidence did not require the Council to reject the Order. The condition of individual trees and the question whether an area order was appropriate involved planning judgment. The group’s collective contribution to amenity could be considered, and the Committee had been informed of the applicant’s objections and relevant guidance.
4. For bias, the applicable question was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. Democratically accountable councillors may hold policy views, take account of constituents’ concerns and communicate with them, provided they consider all material considerations and fairly address relevant points. The evidence did not establish that the chairman had instigated the TPO or approached the matter with a closed mind.
5. The chairman’s non-voting position, his local residence and his prior communications did not establish apparent bias. The court also observed that an allegation of actual bias was probably unavailable on the evidence and that apparent bias by one committee member would not, in itself, suffice. The alternative arguments concerning statutory protection, waiver and related matters therefore did not need to be determined.

First-instance statutory application under section 288 of the Town and Country Planning Act 1990. No earlier appellate decision is stated in the judgment.