Barney-Smith & Anor v Tonbridge and Malling Borough Council

Planning permission for a continuing use does not, merely because it leaves flexibility about the number or siting of activities, override a tree preservation order. The exemption for work immediately required, required to enable, or necessary to implement a permission applies only where the protected-tree work is objectively necessary to carry out the authorised development. If the development can be carried out without the work, the owner must obtain the authority’s consent. The owner’s preferred method of implementation is immaterial. A court undertaking will ordinarily be varied or revoked only for a material change of circumstances or a material misstatement of the original facts. Promptness, finality and prejudice to the respondent are important considerations.

The appellants owned land used as a caravan site. A tree preservation order made in 1983 protected woodland on the site. Following earlier unauthorised felling, the appellants gave the court an undertaking in June 2008 not to cut down, lop, top, damage, uproot or destroy trees in a wider area.

After further felling, they applied for release from the undertaking, arguing that the 1983 planning permission authorised use of the whole site as a caravan site and made the tree work exempt from the TPO. Stewart J refused the application on 18 December 2015. The appeal concerned whether the planning permission displaced or rendered inapplicable the TPO, and whether the undertaking should consequently be revoked.

Appeal dismissed. The Court of Appeal agreed that the felling of protected trees breached the tree preservation order and that there was no basis for releasing the appellants from their undertaking.

1. The statutory regimes for planning permission and tree preservation orders are complementary. Under the Town and Country Planning Act 1971 and the Town and Country Planning Act 1990, a local planning authority may protect trees through planning conditions, a TPO, or both. The absence of a tree-protection condition does not prevent a TPO from being made or make it ineffective.
2. The relevant TPO exemption applies only where work to a protected tree is objectively necessary to make the authorised development possible. If the development can be implemented without cutting down or damaging protected trees, the work is not immediately required, required to enable implementation, or necessary to implement the permission. A landowner’s preference for a particular method of implementation is immaterial.
3. The 1983 permission was interpreted from its grant, conditions and incorporated documents, applying the conventional approach described in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74. It authorised continuation of use as a caravan site, not a change of use or operational development. Although it imposed no numerical or siting limit on caravans, the authorised use could be continued without felling protected trees. Felling to add or reposition caravans therefore required the council’s consent. The later wording of the exemption in the 1999 and 2012 regulations did not alter that conclusion.
4. The power to vary or revoke an order or undertaking is to be exercised on principled grounds. The guidance in Tibbles v SIG Plc (Trading as Asphaltic Roofing Supplies) [2012] EWCA Civ 518 identified material change of circumstances and material misstatement of the original facts as the usual grounds, with finality, promptness and prejudice also relevant. There had been no material error or change of circumstances, and the application was made more than seven years late.
5. The TPO was lawfully made in the public interest. Any interference with property rights under article 1 of the First Protocol was lawful and proportionate, as were the injunction proceedings. Lord Justice Elias added that retrospective revocation would not have been appropriate even if the substantive argument had succeeded; the Chancellor and Elias LJ left any different question of prospective release open.

Directions in the outstanding contempt proceedings were left to a judge in the Planning Court, with the court indicating that those proceedings should be concluded without further delay.

• Court of Appeal (Civil Division) dismissed the appeal from Stewart J’s order, holding that the tree preservation order remained effective and that the undertaking should not be revoked: [2016] EWCA Civ 1264.
• High Court of Justice, Queen’s Bench Division refused the appellants’ application for release from the undertaking on 18 December 2015.