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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Beyers v Secretary Of State For Environment, Transport & Regions & Anor [2000] EWHC Admin 387 (31 August 2000) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/387.html Cite as: [2000] EWHC Admin 387

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MS BEYERS v. SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT AND REGIONS and UTTLESFORD DISTRICT COUNCIL [2000] EWHC Admin 387 (31st August, 2000)

IN THE HIGH COURT OF JUSTICE CO 4446/99
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

Royal Courts of Justice
Strand
London WC2

Thursday, 31st August 2000

Article 6 provides that, where consent is granted to fell any part of a woodland, the authority shall give to the owner of the land a direction in writing specifying the manner and time of re-planting.
Article 8 and the Third Schedule apply the provisions of Part III of the 1971 Act as adapted and modified, including:
"S.36(1) Where an application is made to the authority for consent under the Order and that consent is refused by that authority or is granted by them subject to conditions or where any certificate or direction is given by the authority, the applicant ... may by notice under this section appeal to the Secretary of State";
Section 36(2), which requires the notice of appeal to be served within 28 days "from the receipt of notification of the decision, certificate or direction, as the case may be, or such longer period that the Secretary of State may be allow";
Section 36(3) "Where an appeal is brought under this section from a decision, certificate or direction of the authority," the Secretary of State ... may allow or dismiss the appeal or may reverse or vary any part of the decision of the authority, whether the appeal relates to that part thereof or not, or may cancel any certificate or cancel or vary any direction and may deal with the application as if it had been made to him in the first instance";
Section 37, provides an appeal in default of decision within the specified two month period and applying Section 36 "as if the consent to which it relates had been refused by the authority"; and
Section 33, provides that any consent under the Order shall enure for the benefit of the land.
.
Finally, by Article 4(2) of the TPO:
"The authority should keep a register of all applications for consent under this Order containing information as to the nature of the application, the decision of the authority thereon, any compensation awarded in consequence of such decision and any directions as to replanting of woodlands; and every such register should be available for inspection by the public at all reasonable times."
BACKGROUND
The Close is a Grade 2 listed complex of Victorian buildings. The tree in question is a mature English Oak, some 120 years old, which stood outside the Claimant's house,1, the Close. The tree was prominent in the street scene. Unfortunately, the house suffered structural damage from subsidence and ground heave as a result of the action of tree roots in the clay subsoil.
On 19th January 1998 loss adjusters involved in a claim in respect of the damage applied for consent to fell the tree. The decision was delegated by the Second Defendant to one of its planning officers. A landscape officer of the Second Defendant, following a site inspection, recommended that the application should be refused and that a certificate under Article 5 should be issued. The planning officer accepted that recommendation and instructed the landscape officer to issue a Notice of Refusal and a certificate under Article 5.
On 26th March 1998 a Notice of Refusal was sent to the loss adjusters. It gave no reasons for refusal. The notice was accompanied by a proforma note setting out the right to compensation and the right to appeal, including that "Compensation is not payable in respect of any trees which are the subject of a certificate issued by the District Council in accordance with Article 5 of the Tree Preservation Order when giving a decision upon an application. Particulars of any such certificate are attached to the Notice of Decision." The notice also made reference to the right of appeal against "any certificate ... given by the District Council in pursuance of the provisions of the Tree Preservation Order". The notice had been sent under cover of a letter dated 26th March 1998, which referred to the decision notice attached and continued:
"Your application has been refused. However, I suggest you may wish to make a new application for consent to carry out an overall crown reduction of the tree. You do have a right of appeal against the Council's refusal of consent and the issuing of the Article 5 certificate accompanying the Decision note. Guidance notes on how to appeal are attached. If you would like further information about the Council's decision or procedures, please contact this office quoting the reference number given above."
No Article 5 certificate was enclosed.
On 23rd April 1998 the loss adjusters applied for consent to reduce the crown of the tree by 50%. Consent was granted on 7th May 1998. It was subject to a condition that work be carried out between the 1st October and 31st March for the reason that it was "in the interests of good arboricultural practice".
The loss adjusters then engaged Michael Lawson, an arboricultural consultant. He concluded that the proposed reduction by 50% would not be effective to prevent further damage. He met the Second Defendant's planning officer on 7th August 1998. On 11th August 1998 Mr Lawson wrote to the officer summarising the discussion including
"(1) The refusal of Uttlesford District Council to allow the felling of the oak tree was not made with any enforceable Article 5 Certificate."
On the same day the planning officer wrote, referring to the letter dated 26th March 1998 and stating
"It has come to my attention that the Article 5 Certificate referred to in our own letter did not accompanying the decision notice. Consequently, I herewith enclose the Certificate together with the guidance notes on the right of appeal."
The enclosed certificate was dated 10th August 1998 and stated that the Second Defendant was satisfied that the tree had special amenity value and set out reasons for issuing the certificate including the contribution of the tree to the street scene. The certificate indicated that the Claimant could appeal within 28 days from the date "he received that decision".
On 23rd September 1998, the Claimant appealed against both the refusal of consent and the certificate, relying in respect of the latter upon the contention that the issue of the certificate was unlawful because it had not been issued at the same time as the refusal of consent. The appeal was accepted by the First Defendant. It was dealt with by written representations.
The decision letter of the First Defendant was dated 30th September 1999 and was accompanied by a report of an officer who had inspected the site. The First Defendant dealt with the validity of the Article 5 Certificate in Paragraph 13 of the decision letter as follows:

"In respect of the Article 5 Certificate, the Secretary of State notes that Article 5 of the Order states that when refusing consent the local planning authority may certify that, inter alia, the trees have an outstanding or special amenity value. The Secretary of State considers that this means that the decision to certify should be taken at the same time as the decision to refuse consent. The expectation therefore is that the decision notice in the Article 5 Certificate would be issued on the same date. The key issue in deciding if the Certificate is valid is to establish whether the decision to certify was taken at the same time as the decision to refuse consent. The Council have confirmed that covering letters which accompany notices of refusal in cases where Article 5 Certificates are to be issued are not produced from a standard draft but are prepared freshly each time. They have also confirmed that the decision to issue a Certificate was taken at the same time as the decision to refuse consent for the felling of the appeal tree. The Secretary of State sees no reason not to accept the Council's assurance that the decision of issue a certificate was taken at the same time as determining the application. He considers the omission of the Certificate was most likely to have been an oversight. In the circumstances he considers that the Certificate is valid. In dating the Certificate 10th August 1998, the Council sought to give your client the opportunity to appeal against the certificate. In trying to ensure that your client was not prejudiced by the omission of the Certificate, the Council have raised doubts about its validity. However, the Secretary of State is satisfied, for the reasons given above, the Article 5 certificate is valid."
In paragraphs 14 to 16, the First Defendant considered the merits of the proposal to fell the tree and accepted his inspecting officer's view that it would not be justified and that the appeal should be dismissed. In paragraph 17, the First Defendant considered the merits of the Article 5 certificate, concluding that in its local context the tree merited the description as having special amenity value. He concluded:
"Although he appreciates that after a 50% reduction the tree would no longer merit such status, he is satisfied that the Council's issuing of the Certificate at the time of refusing consent for felling was justified. He therefore intends to dismiss this part of your client's appeal."

I should add that at the time of the appeal decision the 50% crown reduction pursuant to the consent dated 7th May 1998 had not been carried out. He went on to dismiss the appeals.
At the time the First Defendant had issued advice on tree preservation orders in the Memorandum to Circular 36/78, which at paragraph 62 advised in respect of compensation:
"The issue of (Article 5 certificates), particularly in the (case of trees with outstanding or special amenity value), should be undertaken discriminately and should not be used just to avoid compensation claims."

The First Defendant's Guide to the Law and Good Practice of Tree Preservation 1994 at paragraph 6.49 advised authorities to include in their decision notice reasons for their decision and at paragraph 6.55, in respect of Article 5 certificates that authorities should ensure that "The applicant is left in no doubt that a certificate has been issued" or the grounds for it.

THE CERTIFICATE
Submissions
Mr Cosgrove submits that under the Act, the Regulations and the TPO the general principle is that a person who has sustained loss and damage in consequence on the refusal of consent is entitled to recover compensation for it. The exception from that general principle is where a certificate is issued in accordance with Article 5 of the Order. Article 5 makes two requirements, first that the authority "certifies" that it is satisfied that the requirements of Article 5 are met, that is that the decision is in the interest of good forestry or that non- woodland trees have outstanding or special amenity value and, second, that it must so certify when making its decision on the application. Thus a certificate issued many months later after the application had been decided would be invalid.
This was not, he submits, merely a procedural requirement. It went to jurisdiction. The policy underlying the provision was to ensure that the process of certification was contemporaneous with the decision and not a matter of hindsight, possibly in the face of a claim for compensation. To certify meant, at the very least, communication of the fact, normally to the applicant. Thus an unrecorded or uncommunicated decision, even if made at the same time as the decision to refuse or grant conditional consent, would not suffice. Mr Cosgrove referred to the decision of the Lands Tribunal in Henriques v Swale Borough Council [1997] 1 PLR 1.
That construction of Article 5, he submits, would be consistent with Section 36 of the 1971 Act, as modified by the Third Schedule to the TPO, which gives a right of appeal within 28 days from the date of the certificate. Thus it pre-supposed that the process of certification would involve the physical issuing of a certificate, as indeed was required by Article 9.
In this case the First Defendant had misdirected himself in that in paragraph 13 he concluded that the decision to certify should be taken at the same time as the decision to refuse consent. A decision to certify is not necessarily the same as certifying or issuing a certificate, particularly as here where the decision was delegated to an officer rather than made by a committee sitting in public. There was no evidence of any certificate being issued contemporaneously with the decision to refuse consent.
Mr David Forsdick, who appears for the First Defendant, submits that to succeed the Claimant must demonstrate that the certificate issued in the present case pursuant to the decision of the officer was a nullity and void. He points out that there is no special or formal requirement for a certificate under Article 5. He does, however, accept that some form of communication would be necessary. Specifically, he accepts that the discussion between the landscape officer and the planning officer, as a result of which the planning officer decided to refuse consent and to certify that the tree had a special amenity value, would not suffice. He does rely, however, on the fact that the planning officer instructed the issue of the certificate and that the letter dated 26th March 1998 recorded that the Claimant had a right of appeal, not only against the refusal of consent, but also against "the issuing of the Article 5 certificate accompanying the decision notice". Thus there was both a decision to certify and an indication of the right of appeal. The only failure was the simple omission to enclose the certificate with the decision notice.
In those circumstances, he submits, the Claimant and the loss adjusters would have been aware that the Second Defendant had through its officer had decided to issue a certificate and of their right of appeal in that respect. There was no ground for issuing a certificate in the case of this tree, which did not form part of a woodland, other than under Article 5(b), that is as a tree of outstanding or special amenity value. No questions were raised at the time as to the issuing of the certificate. On the contrary, the loss adjusters applied for consent for pruning of the tree by 50%, pursuant to the advice in the same letter.
The certificate, issued and dated 10th August 1998, he submits, ensured that the Claimant's right of appeal was maintained. There was no prejudice. If there was any error, it was technical and could not render the certificate a nullity. In answer to the question what comprised the certification by the Second Defendant under Article 5, Mr Forsdick submitted that it was the planning officer's instruction to the landscape officer to issue the certificate together with the letter dated 26th March 1998. That was, he submitted, effectively what the First Defendant had decided in paragraph 13 of the decision letter.
Decision
While the power to make a tree preservation order was found in Section 60 of the 1971 (now the 1990 Act Section 189), the specific statutory requirements for the exercise of the power were for the purposes of the present case in the 1969 Regulations and, in effect, are reproduced in the TPO itself. In particular, the provision for compensation pursuant to Section 174 of the 1971 Act is required to be included by Regulation 4(1) of and Articles 5 and 9 of the Schedule (as amended in 1981) to the Regulations. I accept the submission of Mr Cosgrove that the substantive provisions for compensation there set out go to jurisdiction and are not merely procedural.
Article 9 is the principal provision giving the right to compensation. It is specific but conditional, and subject to a proviso. It provides a fundamental right to compensation, if a person has suffered loss and damage in consequence of any refusal or conditional consent. The right is, however, subject to the other provisions of the TPO and is conditional on a claim made within the time and in the manner provided by the Order. A claim made outside the 12 month period under Article 11 would be ineffective. The proviso is that no compensation is payable in the case of any tree, the subject of a certificate in accordance with Article 5 of the Order. While there is no formal requirement for a certificate other than it is to be made in accordance with Article 5, the normal use of that term would, in my judgment, contemplate something in writing that certifies or declares what is to be certified.
Article 5 provides that the authority can, when it refuses consent or grants it subject to conditions, certify in respect of any tree, the subject of that refusal or conditional consent, that it is satisfied as set out under sub-articles (a) or (b). The Article is , accordingly, dependent upon a decision made by the authority on an application for consent. For example, there is no power to grant a certificate in the case of an appeal in default of decision under Section 37, as modified under Schedule 3.
What then is the meaning of "certify" for the purposes of the Article? In my judgment it requires a formal and communicated act of attesting or declaring the authority's satisfaction in accordance with the Article. Thus one officer giving instructions to another officer to issue a certificate would generally not constitute certification for the purpose of Article 5. There must be at least a public or communicated act of certification. The question whether an actual certificate is required to be issued is more difficult. I have already referred to Article 9 above, which in my judgement plainly presupposes that a certificate would be issued. That is consistent with the provisions of Section 36, as modified by Schedule 3, which gives the right of appeal against "any certificate" (Sections 36(1) and (3)), and the 28 day period for appeal from the receipt of the certificate (Section 36(2)). In my judgment, reading Articles 5 and 9 together in the context of the TPO as a whole, the authority is required to certify by issuing a certificate, which would entail a written document to that effect. It does not seem to me that sense can be given to the TPO, unless that is the effect of the requirement to certify under Article 5 and the certificate under Article 9.
I then turn to consider the qualification that the authority may do so "when refusing or granting conditional consent". That again seems to me a condition that goes to jurisdiction rather than procedure. In other words, the authority cannot certify for the purposes of Article 5 other than when it is refusing or conditionally granting consent. I accept Mr Cosgrove's submission in this respect as to the underlying policy of the Article, that is that, if the authority is to take advantage of the exception, it must do so at the time of the decision and is required to do so in a form that is on the record and communicated.
What in the circumstances of a particular case would amount to certifying "when refusing or granting consent" would be for determination as a matter of fact and degree by the decision-maker. For example, if the decision is by committee, there would normally be a committee resolution for refusal and for the issue of a certificate. That would be followed by the actual issue of a notice of decision and the certificate itself. In those circumstances it would seem to me that the process of refusal and certification would embrace both the decision of the committee and the issue of the notice and the certificate. With a delegated decision a similar approach would be appropriate, in that the process would start with the officer's decision to refuse and issue a certificate and would be completed by the issue of the relevant notices. However, I would stress that each case would turn on its own facts as to whether the certificate was in that sense contemporaneous with the decision.
Turning then to the decision letter, the First Defendant's primary findings in this respect are found in paragraph 13. The First Defendant identified his "key issue" as whether the decision to certify was taken at the same time as the decision to refuse consent. The First Defendant specifically emphasised the phrase "the decision to certify" by underlining it. He went on to answer that issue by making three findings of fact, first that the decisions were taken at the same time, second that the omission of the Certificate was likely to have been an oversight and, third, that the Certificate was dated 10^th August 1998 to preserve the Claimant's opportunity to appeal. The First Defendant expressed his conclusion that the Certificate was in the circumstances valid following the first two findings. In a sense the first finding was sufficient to answer the identified key issue. The findings in respect of the Certificate seems to have been more by way of explanation how the finding as to the timing of the decision was consistent with the issue of the Certificate on and dated 10^th August 1998.
In the last sentence the First Defendant stated that he was satisfied as to the Certificate's validity for the reasons set out in the paragraph. I have no doubt that the First Defendant was there referring to the Certificate issued on 10^th August 1998. The basis for his conclusion was that the decisions were made at the same time, not that the certification was contemporaneous with the decision to refuse consent. Thus, at the critical part of the decision letter in this respect, the First Defendant in my judgement misdirected himself as to the appropriate test to be applied to answer the question as to the validity of the Certificate issued on 10^th August 1998. It does not seem to me that he considered at all whether, in the circumstances and as a question of fact and degree, the Certificate had been issued at the time of the decision to refuse. Indeed, on the evidence it is doubtful whether that conclusion would have been open to him at all. The process of refusal of consent was effectively concluded by the issue of the notice of refusal with a note as to the right of appeal. The issue of the certificate arose out of the realisation of the omission to issue the certificate with the decision notice at or following the meeting on 7^th August 1998.
Although in this Court the First Defendant has relied upon the instruction given by the officer to issue the certificate and the letter dated 26^th March 1998 rather than the Certificate itself, it does not seem to me that that was the approach of the First Defendant in his decision letter at all. For the reasons I have given I do not accept that uncommunicated instructions to another officer would be capable in law of amounting to certification for the purposes of Article 5. While the First Defendant accepted that the letter was not a standard letter, there was nothing on its face, accompanied as it was by both a notice of refusal and notes of the right to compensation and to appeal that were plainly based on a standard format, to indicate that the letter was not itself also based on a standard format. Both the letter and the notice of the right to appeal refer to the Article 5 Certificate accompanying or attached to the decision notice. The letter did not itself purport to be a certificate at all. The terms of the letter are in my view at best equivocal as to whether or not a certificate had in fact been issued, when none was attached to the decision notice. While I accept that, if this was simply a matter of procedure, the letter might be relevant to the question of prejudice, the failure to certify in accordance with the requirements of Article 5 and in particular at the time of refusing consent was in my judgement fatal to reliance by the Second Defendant on the Certificate subsequently issued on 10^th August 1998.
For completeness I should refer to paragraph 17 of the Decision Letter where the First Defendant states "... he is satisfied that the Council's issuing of the Certificate at the time of refusing consent for felling was justified". In this Court Mr Forsdick did not rely upon that statement, which was not made as part of the consideration of the validity of the Certificate, as adding to or altering what I find to be his reasons clearly set out in paragraph 13. In my judgment he was right not to do so.
In the circumstances, for the reasons set out earlier in this judgment, I am satisfied that the decision taken by the First Defendant, upholding this Article 5 certificate, was not within the powers of the Act and that the decision should be quashed on this ground. While in the circumstances it is unnecessary for me to consider the other grounds relied upon by Mr Cosgrove, as they were argued I will shortly set out my conclusions in respect of them.
REASONS
As I have indicated above, no reasons were given for the refusal of consent in the present case. Mr Cosgrove accepts that there is no requirement to give reasons in the Regulations or the TPO. He referred me to de Smith, Judicial Review of Administrative Action, Fifth Edition, particularly at paragraph 9.058, that is that as a matter of fairness reasons may be required for administrative decisions. He relied upon the advice in the First Defendant's guide, that reasons should be given for decisions refusing consent or imposing conditions. He submitted that without reasons the Claimant could not properly judge whether and, if so, on what grounds to appeal. Without reasons the decision to refuse and the notice of refusal were bad in law and of no effect. Thus, he submits, in the absence of a lawful refusal the certificate, which is parasitic on the refusal, must also fail.
Mr Forsdick counters these submissions on the ground that there is no requirement for reasons. Insofar as the requirement for reasons rests on the question of fairness, he submits that in this case there was no injustice or prejudice in that the concern of the Second Defendant was plain. If there was any uncertainty, the Claimant or the loss adjusters could have asked for particulars. Their failure to do so demonstrated the absence of prejudice, particularly seeing that the loss adjusters did act on the letter dated 26th March 1998 by applying for consent for the 50% crown reduction. In any event, if the refusal was invalid, the appeal would have been against non-determination and the decision of the First Defendant would still be valid. In that respect he referred me to Brayhead (Ascot) Limited v Berkshire County Council [1964] 2 QB 303.
In my judgment, Mr Forsdick is correct in his submissions. There is no requirement under the TPO for reasons. If there is to be a requirement for reasons, it could only be as a matter of fairness. In this case I am not persuaded that there are any grounds to conclude that the absence of reasons created any unfairness which would warrant striking down the refusal. In my judgment, accordingly, this ground fails.
50% REDUCTION
Mr Cosgrove further challenges the decision of the First Defendant to uphold the certificate on the ground that the First Defendant failed to have regard or sufficient regard to the grant of consent for 50% reduction, as a result of which the First Defendant accepted in paragraph 17 of the decision letter that the tree "would no longer merit such status".
For the purposes of this ground Mr Cosgrove had to argue that the appropriate date for determining the merits of the Certificate was either the date of the First Defendant's decision or 10^th August 1998, when the Certificate was in fact issued. The original decision and the notice of refusal were both before the grant of consent for the crown reduction, which was on 8^th May 1998, and could not therefore have been taken into account at that time in any event. As the consent had not been implemented at either of the later dates, it was immaterial to Mr Cosgrove's argument which would be the appropriate date for the First Defendant's consideration. That question was, accordingly, not the subject of submissions before me and it is unnecessary for me to express any view on it.
Mr Cosgrove's point is a short one. He sought to support it on the basis that, where consent had been granted, any decision as to the special value of a tree should take into account the effect of an existing consent, as if it had been implemented.
I can also deal with the point shortly. I am firmly of the view that the relevant question for the authority and, on appeal, the First Defendant, is what is the value of the tree in question in its existing state, not what it might become if a consent were to be implemented. I recognise that, once issued, the certificate is effective to remove the right to compensation in respect of subsequent decisions in respect of the tree, the subject of the certificate. However, that seems to me consistent with the structure of the Regulations and the TPO. That is that the authority should not in the public interest be responsible for paying compensation in respect of decisions to refuse consent or impose conditions in respect of a tree which is of outstanding or special amenity value.
If no application to fell had been made in the present case, the Authority could in my judgement properly have issued an Article 5 certificate when it granted conditional consent for the 50% crown reduction, notwithstanding that it recognised that the effect would be to remove the tree's special amenity value. If no certificate was issued and the consent was issued and implemented so that the tree lost its special amenity value, it would no longer qualify for a certificate on any future application, whether to fell or otherwise. In the present case, for example, consent for a 30% crown reduction was given in respect of the tree in 1990 but without the issue of a certificate. It was implemented. Evaluation of the tree for the purposes of Article 5 thereafter necessarily took into account the crown reduction that had taken place. It is the tree's existing amenity value that is relevant, not what it might become in the future if one consent or another is in fact implemented.
In my judgment, the conclusion of the First Defendant in this respect that, notwithstanding the effect of the consent for 50% reduction if it was implemented, he was satisfied that the tree had special amenity value in its existing state accorded with the requirements of the TPO and cannot otherwise be criticised. Accordingly, I conclude that this ground is also not made out, but for the reasons I have given this application succeeds on the first ground relied upon by Mr Cosgrove.