EU Plants Ltd v Wokingham Borough Council

A tree preservation order may lawfully be made where a local planning authority is entitled to conclude that trees’ roots or canopies are at risk from track use, inadequate surfacing, vehicles or poor pruning. The order need not compel a particular construction standard. It is sufficient that the authority addresses the legitimate objective of preventing damage and leaves the landowner to choose how to avoid it. An area order may cover identified species even though trees within the area differ in condition and individual merit. Whether protection is expedient in the interests of amenity is a planning judgment. A statutory challenge does not permit a merits review where the authority acted within its power and reached a conclusion open to it.

EU Plants Limited appealed against Beatson J’s dismissal of its application under section 288 of the Town and Country Planning Act 1990 to quash a tree preservation order made by Wokingham Borough Council. The High Court decision was reported at [2012] EWHC 3305 (Admin).

The appeal concerned two grounds. The first challenged the Council’s reliance on the risk of damage from surfacing or continued use of a permissive agricultural track. The second challenged the inclusion of trees of differing condition within an area order. The central issues were whether the order was expedient in the interests of amenity under section 198(1), and whether the Council had acted within its statutory powers.

1. Disposition. The Court of Appeal dismissed the appeal. Lord Justice Rimer gave the judgment, with which Lord Justice Longmore and Sir John Mummery agreed.
2. Statutory purpose. Section 198(1) of the Town and Country Planning Act 1990 gives a local planning authority a broad power to protect trees where it appears expedient in the interests of amenity. The Council was entitled to consider the risk of root damage from continued use of an unsurfaced or inadequately surfaced track, and the risk of canopy damage from vehicles or pruning carried out to an inadequate standard.
3. Roadway ground. The permitted-development regime in Schedule 2, Part 6, Class A of the Town and Country Planning (General Permitted Development) Order 1995 required an application concerning the siting and means of construction of a private way. The Council’s failure to require prior approval did not prevent it from making a separate tree preservation order. The order was not unlawful merely because its practical effect might encourage construction that avoided damage. It did not impose a particular road standard; the landowner remained free to choose how to prevent damage to the trees.
4. Condition of the trees. Whether an area order was expedient was a planning judgment. The value of a group of trees could be collective, and the trees within an area order need not have uniform condition or individual merit. The Council was entitled to form its own judgment from the evidence. The consultants’ references to poor quality did not establish that most trees were unsafe, unhealthy or incapable of a reasonably long life. The Officer’s report had addressed the relevant considerations, including amenity, health, management and expediency. The Council’s decision was within the range of lawful planning judgments.

1. Court of Appeal (Civil Division). The appeal was dismissed.
2. High Court, Queen’s Bench Division, Administrative Court. Beatson J dismissed EU Plants Limited’s section 288 application to quash the tree preservation order on 22 November 2012, in [2012] EWHC 3305 (Admin).