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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Brewer & Ors, R (on the application of) v Three Rivers District Council [2007] EWHC 1290 (Admin) (30 April 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/1290.html Cite as: [2007] EWHC 1290 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		30 April 2007

1. MR JUSTICE SULLIVAN:

Introduction

2. This is an application under Section 288 of the Town & Country Planning Act 1990 ("the Act") to quash the Three Rivers (Long Lane, Heronsgate) Tree Preservation Order 2005 (TPO 649) ("the TPO"). The TPO was made by the defendant's officers under delegated powers on 2 December 2005. Once made, a TPO requires confirmation. Regulation 5 (1) of the Town & Country Planning (Trees) Regulations 1999 ("the Regulations") provides that a local planning authority -

"shall not confirm an order which they have made unless they have first considered any objections and representations duly made in respect of it and not withdrawn."

If no objections are made to a tree preservation order the defendant's officers have delegated authority to confirm the order. If an objection to the making of a TPO is made in accordance with the regulations, then the decision whether or not to confirm the order is made by the defendant's development control committee.

3. The claimants, through their solicitors Hughmans, objected to the making of the TPO by letter dated 19 January 2006. The development control committee considered the matter at a meeting on 9 March 2006 and decided to confirm the TPO. The claimants are aggrieved at the manner in which the committee considered their objections.

Factual Background

4. Before considering the claimants' complaints, it is helpful to summarise the factual background. The claimants are the owners of the land covered by the TPO. It was their family home, Waterfield, a substantial house with associated paddock and gardens. In the early 1980s the northern half of Waterfield was sold for development and eight houses were erected on that part of the site. The southern part of the land remained undeveloped.
5. On 16 June 1988 the Three Rivers (Long Lane, Chorleywood No 2) Tree Preservation Order 1988 (TPO 251) was confirmed. It was an area TPO and covered all the trees standing on the undeveloped part of the Waterfield site ("the site"). The plan attached to that order divides the site into two halves. The northeastern half appears to be devoid of trees whereas the southwestern part contains scattered trees and some trees are shown alongside the boundaries.
6. The claimants contend that residents in the eight houses have been using the site as a rubbish tip. The claimants wanted to use the site for grazing horses and made a number of applications for the erection of stables on the land. Those applications were refused and an appeal was unsuccessful. In February 2005 a revised application for a stable, together with associated paddock, was submitted. The application was refused on 24 March 2005. As part of the defendant's normal consideration of that application for planning permission, the site was visited by Mr Parkin who is an arboriculturist employed by Jacobs Babtie and seconded to the defendant as a consultant on arboricultural matters. Having checked the defendant's records, Mr Parkin discovered the existence of the 1988 area TPO which would protect only those trees which were in existence at the time when that order was made. His witness statement explains that he discussed the matter with Julie Hughes, the defendant's principal landscape officer and a member of the Landscape Institute. It was concluded that a revised TPO should be made under delegated powers.
7. The order, the Three Rivers (Long Lane, Chorleywood) TPO 2005 (TPO 595), was made on 22 April 2005. The reason given for making the order in the formal notice of making the order was as follows:

"We have made the order because the specified trees should be retained in order to preserve and maintain the present and future landscape character of the area."

8. Mr Parkin explained his reasoning in his witness statement:

"From my site inspection I considered that the area shown as A1 in the order could now be divided into two sections which would more effectively protect the amenity of the area. In accordance with Government guidance the most appropriate method consisted of a wooded section in the southwestern section and five single trees in the northeast section. TPOs allow trees to be designated in one of four ways. Single tree, areas of land containing trees, groups of trees, and woodlands. The woodland classification differs from the other classifications in that it extends protection to trees that grow after the order is made, therefore protecting the continuity of the feature. In considering the suitability of this type of protection I considered the woodland to be of sufficient size and quality and to provide sufficient amenity value to qualify for the 'woodland' designation. I assessed the site from Long Lane, from within Waterfield and from within the site and considered the amenity value these trees provide justified their continued protection by TPO."

The order was in the model form. Schedule 1 to the order specified five individual oak trees along the boundary to the northeastern part of the site and woodlands on the southwest half of the site, described in the order as "predominantly mixed broadleaf woodland containing oak, ash, sycamore, holly, lime and hazel".

9. The claimants instructed Hughmans who instructed a firm of arboriculturists, Landscape Planning Group Ltd ("LPG"), on their behalf. LPG objected to the making of the order by letter dated 8 July 2005. That letter raised a number of procedural issues not relevant for present purposes and stated this as to the form of the order:

"In this case there are five oak trees and an area of woodland subject to TPO. The trees and woodland must be very accurately plotted or they will not be protected. Equally for woodland, the land must be all reasonably identifiable as woodland, and large open areas or other land uses should not exist.

In this instance the land subject to the woodland designation is in our opinion not consistent with a woodland designation and equally that this designation is a poor use of council resources and likely to lead to the site becoming neglected, and/or is unenforceable given the landowner's reasonable right to continue to allow horses or other animals to remain present on the land.

The landowners benefit from the availability of grazing facilities for their horses and these animals will, effectively, maintain the woodland free of a herb and shrub layer by grazing. Therefore the nature of the order is invalidated as regeneration of woodlands will not be possible. Equally councils are advised by guidance from the Secretary of State to agree management plans with landowners rather than to automatically resort to TPOs which will inevitably have the impact of removing landowners' commitment to manage the land effectively."

10. The officer's report to the committee meeting on 15 September 2005 stated in part:

"2.3 The TPO 596 is specified as five individual oak trees along the southeast boundary and a woodland on the part of land adjacent to Long Lane and Waterfield. Objections have been made regarding the woodland area.

2.4 At the officer's site visit it was felt that this area constituted woodland, there being trees of varying ages and species which as a collective add amenity value to the surrounding area. At the time the TPO was served, this woodland had areas that were abundant with young trees which had naturally regenerated giving the woodland amenity value for present and future. The woodland is very visible to the public as it is adjacent to Long Lane and Waterfield."

The committee confirmed the order.

11. Hughmans complained that they had not received notice of the meeting and so had lost the opportunity to address the committee on behalf of the claimants. The defendant responded with a pragmatic solution. A second TPO would be made identical to the order made in April 2005 and confirmed. The claimants would then have the opportunity to object to the second TPO and would be able to address the committee when the confirmation of that order was being considered. If the second order was confirmed by the committee then the first order would be revoked. So it was that the second TPO was made on 2 December 2005 in identical terms (save as to dates) as the first. Hughmans objected to that order on behalf of the claimants in a letter dated 19 January 2006.
12. In view of one of the complaints pursued by Mr Black, on behalf of the claimants, that letter was inadequately paraphrased in the officer's report to the committee; it is necessary to set out the letter of 19 January 2006 in full:

"Dear Sirs.

Re: Town and Country Planning Act 1990 - Three Rivers (Long Lane, Heronsgate) Tree Preservation Order 2005

We are writing to formally object to the Tree Preservation Order served on 2 December 2005 over land at Long Lane, Chorleywood, designated as TPO 649.

Evans v Waverley Borough Council (1995) establishes that a woodland order is very different in scope to an area order, being far more restrictive to the landowner. TPO 649 is a woodland order. The relevant land is already the subject of an area order.

Quite clearly, the form of the new TPO (649) is inappropriate, as the land in question is in fact not woodland. Historically whilst the land was formerly the extensive garden curtilage to a domestic property which was used to graze horses, we recognise that that disuse has allowed trees to regenerate. However we note Charles Mynor's view that the character of ordinary woodland is that of the ordinary dictionary definition. That is land covered by trees, which clearly this is not. This is not a last resort. There are areas of open space between the trees, which is inconsistent with the classification of the land as woodland. Consequently, there is no need for a woodland order, which would have the effect of allowing previously open spaces to become overgrown. It is appropriate to have individual TPOs on relevant trees only.

Furthermore, the Secretary of State guidelines indicate that woodland orders are to be used with the utmost discretion, owing to their restrictive effect on the owners of the land in question. For example, the (then) DETR publication 'Tree Preservation Orders: A Guide to the Law and Good Practice' (2000) advises local authorities that woodland orders are 'difficult and cumbersome so that owners may be induced by an order to allow their woodland to grow derelict. It is better, therefore ..... to use [woodland] orders as a last resort'. This is clearly not a last resort case.

The council has failed to have regard to this unambiguous guidance from government. We require disclosure of all documents leading up to the decision to make a woodland order rather than some other, less restrictive form of TPO. We also require the council to provide evidence of any liaison with the local Forestry Commission Conservancy over the intention to serve a woodland order. We refer you to government advice in the 'Blue Book', which has the weight of a circular, and the council must confirm how they have discharged guidance on the use of the woodland designation in relation to controls exercised by the Forestry Commission under the Forestry Act 1967 (as amended). As the council will be aware, neighbours have used the land as a dumping ground for waste.

In addition, we fail to see how TPO 649 was made initially. The order itself states that it is made in relation to section 198 of the Town and Country Planning Act 1990. This section is not concerned with development control, but the Committee Report appended to the council's letter of 12 October 2005 refers only to a development reason to make the order. An order under section 197 of the Town and Country Planning Act 1990 would take development considerations into account, however TPO 649 was made under section 198, and is therefore inconsistent with the legislation under which it is purportedly authorised.

Section 198 is instead concerned with 'amenity'. The land in question has been subject to an area order for some 18 years. It is difficult to see how the interests of amenity are served by modifying this into a woodland order, which will have the effect of preventing the effective upkeep of the land, leading to eventual dereliction.

There appears to have been no evidence whatsoever under S 198 before the council on any aspects so as to allow the order to have been made.

It is abundantly clear that it was made simply due to a second planning application being submitted for a stable by our clients. It was a misguided and misapplied order, which was not based on any fact whatsoever, but was a knee jerk reaction. It calls into question as to who instigated the process. We require full disclosure of the names of councillors who have been involved together with a declaration of their interests; in addition, we need to have disclosed whether any councillor has any connection with the original planning decision in the 1980s.

Following on from this question, we would like to know by what means the technical assessment of the land was carried out. We submit that; either council officers entered our client's land without taking the courtesy to inform them, or that the assessment took place from outside the site. If the latter, how was an assessment of the viability of the 'woodland' structure carried out? If however officers entered the land, we require sight of the correct entry card, and clarification of the council's procedure regarding land entry. We will require details of the Tree Assessment System used by the landscape officer. We will also require disclosure of the relevant council officer's notes from the site visit, with his/her interpretation of how the assessment system should be applied to the land in question, and in particular the reasons why a woodland order was deemed necessary. We also require the arboricultural report on the land.

The council has been systematically obstructive in relation to disclosure of documents. We have been requesting the same since 30 June 2005 and we attach copies of the letters remitted.

We will, if still obstructed, seek full disclosure of council's entire file relating to the land in question, under the freedom of Information Act 2000.

We understand that the government has issued guidance for local councils to review area orders. We require sight of all documents regarding the form, scope and progress of the council's review programme, in order to ascertain whether our clients are being prejudiced by the action taken by the council.

Finally we require this matter to be listed before the next committee following the 15 February 2005 as our clients are not prepared to countenance any further delays." (emphasis added)

13. Ms Hughes replied on 1 March 2006:

"I can confirm that the matter of confirmation of the TPO will be being considered at Development Control Committee on 9 March 2006. The committee meeting will start at 7.30 pm and will take place in the Penn Chamber. It will be possible for a representative of the owners of the property to speak for up to 3 minutes at the meeting; however there is a need to register your intention to speak with the committee manager at 7.00 pm. I enclose guidance notes regarding representation at policy panels, scrutiny committee, committee and sub-committee meetings which must be adhered to should you wish to make a representation.

Some of the issues raised in your letter have been reported in the committee report, which is enclosed within the attached Notice and Agenda of Development Control Committee for your information. Officers of the council have delegated authority to make TPOs. I can confirm that it was the Landscape Officer who instigated the making of this TPO. The trees were already protected by the much older area order and in accordance with current guidance, it was considered in that it would be appropriate to review the order and remake a tree specific and woodland order to take the place of the previous order. It is intended that, in accordance with good practice, that the older order would then be revoked.

I can confirm that the council did not serve the Forestry Commission with a copy of the order, as this is no longer required. The Forestry Commission provides us with a weekly bulletin of their applications, which is considered to be adequate consultation. The aims of the council and those of the Forestry Commission with respect to woodlands are very similar and the council would wish to encourage woodland owners to proactively manage their woodlands. The Forestry Commission would always require the owner of any woodland to submit details of any TPOs when applying for a felling licence. The owner is obliged to give them this information, and the Forestry Commission then consults with the council prior to granting any such licence of management agreement.

With regard to the making of the TPO I must advise that it is section 197 of the Town and Country Planning Act 1990 that gives local authorities the power to make a TPO, however any TPO is made under section 198 of the Act.

I note your request for the names of councillor who have been involved; I have attached a copy of the Development Control Notice and Agenda. On the front page are listed the members of Development Control Committee. I can confirm that when the previous TPO was confirmed on 15 September 2005, which no members present declared an interest. I fail to see the significance of the original planning decisions in the 1980s to a TPO made in 2005.

There is additional information on file with regard to any technical assessment of the land and no formal Tree Assessment System, or arboricultural survey was used in the making of the TPO. Trees on the site were already protected by the area TPO and therefore the site was resurveyed selecting the most appropriate trees and designation. Landscape officers have authority to enter property under the Town and Country Planning Act 1990 Section 214, sub-sections B, C and D and carry 'Authority to Enter' cards, therefore there is no requirement to seek landowners' permission to enter land for the purposes of making a TPO. It is certainly possible for you to arrange to come into the officers for the purposes of viewing the relevant 'Authority to Enter' card for your information.

The Government has not issued any formal guidance for local councils to review area orders, however you will be aware that it is good practice (as identified in the DETR publication Tree Preservation Orders: A Guide to the Law and Good Practice). The council has recently reviewed one of its oldest and largest Tree Preservation Orders, and continues to review other orders as is deemed appropriate, for example when sites have either become developed since the order was made, or when sites are identified for redevelopment.

I trust that this letter deals with all matters raised in your letter and that you will contact me with any further queries."

14. Ms Hughes enclosed her report for the committee meeting on 9 March. That report explained to members:

"1 Summary

1.1 A Tree Preservation Order was made on 27 April 2005. It covered five individual oak trees and an area of woodland.

1.2 We were subsequently informed that Hughmans Solicitors had not been notified of the committee date and they had wanted to make representations.

1.3 It was decided to re-make the order and ensure all parties including Hughmans were served with the new order and informed of the Development Committee date.

2 Details

2.1 A new Tree Preservation Order was made on 2 December 2005. This order was identical to the previous one in the trees it protected. It protected five individual oak trees and an area of woodland.

2.2 It is the intention of the council to revoke a much earlier area order (TPO ref: TPO251) and the previous 2005 order which this order replaces, on confirmation of this one.

2.3 An objection has been received by Hughmans Solicitors acting on behalf of the owners of the property. The objection is concerned regarding a number of issues listed below:

2.4 Inappropriate designation of a woodland TPO: The agent argues that this area is not 'an area of land covered by trees', and that therefore a woodland designation is not appropriate. The agent considers that only specific trees should be protected. An officer has visited the site and advised that this area constituted woodland, there being trees of varying ages and species which as a collective add amenity value for present and future. The woodland is very visible to the public as it is adjacent to Long Lane and Waterfield.

2.5 The agent quotes the DETR publication 'Tree Preservation Orders: A guide to the Law and Good Practice' advises that woodland orders are 'difficult and cumbersome so that owners may be induced by an order to allow their woodland to grow derelict ..... ' The publication does advise that woodland orders are unlikely to be appropriate in gardens. It also warns that a woodland TPO should not be used as a means of hindering beneficial management work. Any Forestry Commission consultations relating to woodland management plans are looked upon favourably by the council whether woodlands are protected or not.

2.6 The agent has requested evidence that the Forestry Commission were consulted regarding the making of the TPO. The Forestry Commission were not served with a copy of the TPO. Advice in 'Tree Preservation Orders: A guide to the Law and Good Practice', advises local planning authorities to consult with the Forestry Commission before making a woodland order, however the Forestry Commission consult with the council on a weekly basis requesting comments on any schemes within our district. It is considered that this is sufficient to ensure that any protected woodlands are managed in accordance with good practice.

2.7 The agent does not agree that modification of the Area TPO into a woodland TPO is in the interests of amenity and is confused over which section of the Town and Country Planning Act is relevant.

2.8 It is good practice for local authorities to review and update their TPOs. The Landscape Officer visited the site in connection with the planning application (05/0167/FUL) and advised that it would be in accordance with good practice that the order be updated as detailed in paragraph 3.18 of 'Tree Preservation Orders: A guide to the Law and Good Practice'.

2.9 With regard to the Town and Country Planning Act 1990, section 198 identifies the duty of the local planning authority as:

(a) to ensure, whenever it is appropriate, that in granting planning permission for any development adequate provision is made, by the imposition of conditions, for the preservation or planting of trees; and

(b) to make such orders under section 198 as appear to the authority to be necessary in connection with the grant of such permission, whether for giving effect to such conditions or otherwise.

2.10 The agent is concerned that no permission was sought from the owners to enter the land for the purposes of making the TPO. The site was visited by the Landscape Officer who was asked to assess the planning application. The need to review the original area TPO was identified and the new TPO plan was drawn up on site at that time. There are no additional notes relating to the making [of] this TPO.

2.11 LPAs are encouraged to re-survey their existing TPOs which include the area classification with a view to replacing them with individual or group classifications where appropriate. There is no requirement beyond this.

3 Options/Reasons for Recommendation

3.1 The options available to the committee are to confirm the order, which would make the order permanent, or not to confirm the order which would mean that the order would lapse.

3.2 The trees which were growing on the site in 1988 would remain protected by the old area order, however any regenerating saplings in the woodland would remain unprotected.

3.3 If the order is confirmed, the previous two TPOs will be revoked.

.....

7 Environmental Implications

7.1 It is considered that the removal of trees not covered by the area order would be detrimental to the character and public amenity of the area.

8 Recommendation

8.1 That the objections should be noted and Three Rivers (Long Lane, Heronsgate) Tree Preservation Order 2005 (TPO649) is to be confirmed.

Background Papers

TPO file TPO649

Objection letter from Hughmans Solicitors dated 19 January 2006.

Report prepared by Julie Hughes, Principal Landscape Officer."

The Issue

15. Before turning to Mr Black's submissions on behalf of the claimants, it is important to note a particular feature of this case. The claimants have made it clear that they do not object to the principle of a TPO in relation to the trees on the site. They had and have no objection to the area TPO which was made in 1988 (see paragraph 4 of the witness statement of the third claimant). Nor is there any objection to the TPO insofar as it relates to the five individual oak trees along the boundary of the northeastern half of the site. Mr Black's witness statement confirms that the claimants' objection is to the substitution of a woodland TPO for an area TPO in respect of the trees on the southwestern half of the site:

"The claimants have no objection whatsoever to the existing TPO No 251 which was imposed in 1988. This is an area order which covers the same ground. The claimants object to the woodland order as it covers every type of tree and undergrowth over an area which neighbours have, historically, been using as a dumping ground for garden refuse. The claimants simply wish to allow horses to graze both on the open pasture and amongst the trees which would of course, be subject to the existing TPO."

The Claimants' Submissions

16. Mr Black referred to the decision of the Court of Appeal in Stirk v Bridgnorth District Council [1997] 73 P & CR 439 in which Lord Justice Thorpe said (in the context of an objection to a decision not to modify proposals in a Local Plan in accordance with the Local Plan Inspector's and Planning Officer's recommendations):

"Where a council is both proposer and judge, the obligation to deal thoroughly, conscientiously and fairly with any objection is enhanced."

These dicta are referred to in footnote 33 in the Government's publication "Tree Preservation Orders: A guide to the Law and Good Practice", March 2000 ("the Blue Book"). Footnote 33 amplifies paragraph 3.36 in the Blue Book which deals with "Considering objections and representations" and states that -

"If objections or representations are duly made, the local planning authority cannot confirm the TPO unless they have first considered them."

Footnote 33 amplifies this advice as follows:

"See regulation 5 (1) of the 1999 Regulations. LPAs should bear in mind that, since they are 'both proposer and judge', ie since they are responsible both for making and confirming TPOs, 'the obligation to deal thoroughly, conscientiously and fairly with any objection [is] enhanced' (see Stirk v Bridgnorth District Council ..... )."

17. On behalf of the defendant, Mr Bird pointed to the somewhat different statutory context (see above) which was under consideration in Stirk and questioned whether it was strictly accurate to refer to an "enhanced" duty in the TPO context. For present purposes this reservation is of no consequence because Mr Bird, rightly, accepted that it is implicit in the obligation imposed by Regulation 5 (1) that the local planning authority's consideration of any objections and representations to a TPO must be thorough, conscientious and fair. What thoroughness, conscientiousness and fairness require in any particular case will be fact sensitive and will depend very much on the circumstances of the individual case.
18. As I understood Mr Black's submissions, he advanced four main reasons why these standards had not been met by the Development Control Committee in the present case:

(1) The officer's report had merely summarised his letter of objection which had been written on behalf of the claimants. The committee should have been provided with a full text of the letter of objection.

(2) The committee had not been provided with copies of LPG's letter of objection to the first TPO made in April 2005, nor had it been provided with a copy letter from Shirley Brewer, the claimant's mother, objecting to that TPO.

(3) There were no reports or minutes or documents of any kind before the committee recording the reasons why the officers had decided to make the TPO under delegated powers.

(4) The report to the committee was confusing because at the end of the report (see above) it said under the heading Background Papers that there was a -

"Report prepared by Julie Hughes, Principal Landscape Officer."

Mr Black had understood that reference to mean that there was another report so he spent much of the three minutes time he was allowed in which to address the committee asking for that (non-existent) other report.

19. Ms Hughes' witness statement, filed on 17 August 2006, states:

"It would appear with hindsight that the standard committee report template is misleading in that it lists 'Report prepared by Julie Hughes, Principal Landscape Officer' at the end, as if it were a background paper. This is not the case and merely refers to the author of the Committee Report itself. I can confirm that the only report before the committee when deciding to confirm TPO 649 was that which had previously been supplied to Hughmans solicitors."

Conclusions

20. Dealing with these points in turn:

(1) the letter of objection dated 19 January 2006 was listed as one of the background pages. It was thus available to members of the committee if any issue had arisen as to whether or not the report fairly summarised the claimant's objection. There can be no objection to an officer's report summarising an objector's case provided it identifies the points of substance that have been made by the objector.

21. In Hobbs v Horsham District Council [2006] EWHC 165 (Admin) I rejected a submission that a planning committee had to be supplied with a copy of the objection itself. That submission had been based on a decision of the Federal Court of Australia in Norvill v Chapman (1995) 133 ALR 226 (see paragraphs 15-17 of Hobbs). In paragraph 17 I said this:

"Mr Walton [counsel for applicant) readily accepted that Norvill was distinguishable on these grounds and that a planning committee considering whether or not to confirm a tree preservation order could lawfully do so upon the basis of a report which summarised the representations or objections made pursuant to the Regulations. It follows that the only question under ground 1 is whether the report fairly summarised and then grappled with the points of substance in the objections made by the claimant. I emphasise 'the points of substance', because the report was not required to grapple with each and every point, however 'insignificant or insubstantial'."

Mr Black did not seek to persuade me that the decision in Hobbs was wrong.

22. It follows that the only question under this heading of complaint is whether the officer's report fairly summarised the objection that had been made on behalf of the claimants by Hughmans. In my view, it undoubtedly did. I have set out the full text of the letter of objection above together with the relevant passages in the officer's report. As I have already mentioned, this is not a case where it was being contended that there should be no TPO in respect of the trees on the site. Nor were any detailed arguments being advanced in respect of individual trees. The only question was whether the southwestern half of the site, which undoubtedly contained a number of trees, some of which had regenerated since 1988 (see the letter of objection dated 19 January, para 12 above) should be subject to an area TPO or to a woodland TPO. The practical difference between the two being that the latter would protect trees that had grown since the area TPO was made in 1988 and would also protect new trees as the woodland continued to regenerate itself. That issue was squarely raised and answered in the officer's report.
23. The claimants are entitled to their view that a woodland order was not appropriate because the trees on the southwestern half of the site were not fairly described as a woodland in their view. But whether a number of trees do or do not constitute a woodland is pre-eminently a question of fact and degree for the local planning authority to decide. In this instance the committee had the assistance of the officer's views (see paragraph 2.4 of the report) and were also shown a number of photographs of the trees that had been taken by Ms Hughes. Having looked at those photographs, it would be impossible to conclude that the defendant's decision that a woodland tree preservation order was appropriate was Wednesbury perverse, and indeed such a submission was not advanced by Mr Black on behalf of the claimants. It is significant, in my judgment, that no criticism was made of the manner in which the claimants' objection was summarised. It was not suggested that any matter of substance had been omitted. It follows that once it is accepted that a summary of an objection is a permissible course, this complaint simply falls away.
24. (2) The defendant was under no obligation to consider the objections that had been made to the first TPO which was to be revoked if the second TPO was confirmed. The committee was entitled to proceed on the basis that, having expressly been given a second opportunity to object to the making of a new TPO, the claimants would put forward the whole of their objection. It is clear that this is in fact what happened.
25. The sole ground of objection was that the area TPO sufficed and a woodland TPO was unnecessary/inappropriate. This was the same as the point which had been made by LPG in its letter of 8 July 2005 (see the extract from the letter set out in para 9 above). Mrs Shirley Brewer, when objecting to the first TPO, had simply said that since the land had been historically used for grazing she could see no reason why a TPO should be placed upon it. That letter added nothing to LPG's objection which, in its turn, was, in substance, the same as the objection advanced by Hughmans to the second TPO.
26. Once again, Mr Black's submissions appear to be directed solely to matters of procedural form, namely that LPG's letter had not been produced to the committee on 9 March 2006, rather than matters of substance, namely whether there was any material difference between the point that was being made by LPG in response to the first TPO and the point that was being made by Hughmans in response to the second TPO. As I have said, in reality, the same point was being argued throughout and that point was addressed within the report.
27. (3) Mr Parkin and Ms Hughes have explained in their witness statements how the first and second TPOs came to be made in 2005. In the circumstances described by Mr Parkin, there was no need for a formal survey or for a written report or minute. Having inspected the site and seen the trees standing thereon, he plainly had sufficient information on which officers, acting under delegated powers, could reasonably conclude that a woodland order was more appropriate than the 1988 area TPO in respect of the southwestern half of the site (see R (on application of James Robinson) v Secretary of State for the Environment and East Riding of Yorkshire Council [2002] EWHC Admin, paragraphs 28 and 29, and [2002] EWCA Civ 1796, paragraphs 19 and 22 to 25 (per Lord Justice Scott Baker)).
28. (4) I turn to the last complaint which appeared to be the claimants' principal concern. Mr Black had understood the reference in the officer's report to "report prepared by Julie Hughes, Principal Landscape Officer" to be a reference to another report. He had, in correspondence, asked for disclosure of all reports and he therefore wasted much of his precious three minutes allocation asking for a non-existent additional report. He pointed out that Miss Hughes had accepted in her witness statement that the standard committee report template was misleading. The question however is not whether the template was unintentionally misleading but whether there was unfairness or less than thorough consideration of the claimants' objection as a consequence. There was only one report in response to the objection. The claimants' solicitors received that report in sufficient time before the committee meeting to enable them to make any additional comment they wished to make. In principle therefore there was no unfairness in the procedure.
29. The council's non-statutory practice would appear to follow the advice as to procedure given in paragraph 3.38 of the Blue Book:

"Since LPAs are responsible for making and confirming TPOs they should consider establishing non-statutory procedures to demonstrate that their decisions at confirmation stage are taken in an even-handed and open manner. For example, the LPA officer could prepare the report. A sub-committee could decide whether to confirm the TPO or a report giving details of objections or representations and the LPA officer's observations or reasons in the light of any sign of his imminent discussions with people affected by the TPO. A copy of the report could be sent to those people who have no objections or representations with an invitation to submit any further views before the committee meet to make their decision. The LPA could arrange for members of the committee to visit the site ..... before making their decision. The visit could be followed by a hearing or inquiry back at the council offices that people affected by the TPO and the LPA officer are being given the final opportunity to state their case."

Clearly a site inspection is not necessary in every case. Given the ambit of the dispute in the present case, it was entirely appropriate and in accordance with the guidance given in the Blue Book for the council to adopt the procedure which is described in Ms Hughes' witness statement.

30. The complaint made by Mr Black might have had some force if he had been able to point to additional matters of substance with which he had wished to deal in response to the officer's report. It has to be borne in mind that the claimants had already had an opportunity to set out their objections. The officer had responded to those objections in a report, and the question therefore was whether there was anything further to be said in reply to the officer's response to the objections. If Mr Black had been able to identify any matters with which he had been unable to deal because unnecessary time had been taken up asking for a non-existent further report there might have been the beginnings of a ground for complaint. However on the evidence available to the court there were no such matters. Mr Black did not identify any in his witness statement, and his own attendance note of the meeting makes it clear that in the remaining time available to him he took the opportunity to argue once more that a woodland order was not appropriate for the reasons that he had previously advanced in more detail in correspondence.
31. In the circumstances it is unnecessary to decide whose fault the misunderstanding was, and whether the misunderstanding on Mr Black's part was or was not justified, given that Ms Hughes had been repeatedly saying that there were no other reports in response to his requests for disclosure. The claimants may well have misled themselves as a consequence of their belief, doggedly adhered to, that there must be another report or reports.
32. In summary, it is plain that the claimants had a fair opportunity to put their objection to the form of the order viz that it should not be a woodland TPO and should continue to be an area TPO. The officers explained why, in their view, a woodland TPO was appropriate. Having seen photographs of the trees in question, the sub-committee agreed with the officers' view. That was a perfectly adequate consideration of this, very narrow, issue. There was no unfairness whatsoever.
33. In the circumstances this application must be refused.
34. MR BIRD: I have an application for the defendant's costs. It is in the sum of £9,020.
35. MR JUSTICE SULLIVAN: What do you have to say, Mr Black?
36. MR BLACK: Normally I would say simply nothing and obviously costs may follow the event. What I say in this particular case is that the costs should only be applied as against the claimants as from the date of Julie Hughes' statement - August 2006. My reasoning for that is that it was at that moment, and only at that moment, that it became apparent as to the mistake with regard to the template, and that being the case it was then open for the claimants to have withdrawn the proceedings. In my submission it would be appropriate that the order of this court would be no order as to costs up to the date of that statement - it was dated 17 August 2006, and I believe it was served thereafter upon me - and an order for costs in favour of the defendant subsequently.
37. MR JUSTICE SULLIVAN: The point would have rather more force if, following the witness statement dated 17 August 2006, the claimants had put their hands up and said, "Ah, now you tell us. Okay we will withdraw our proceedings on the basis that you pay the costs or rather we draw stumps on the costs," but you decided to go on notwithstanding being told that.
38. MR BLACK: There is a without prejudice letter which was written on 25 April 2007, if I may hand that up.
39. MR JUSTICE SULLIVAN: If it is without prejudice, query whether I should see it.
40. MR BLACK: It is without prejudice save as to costs.
41. MR JUSTICE SULLIVAN: Then I will be happy to see it if it is on that basis.
42. MR BIRD: I am not sure how it assists my friend.
43. MR JUSTICE SULLIVAN: I will certainly look at it.
44. MR BIRD: Would you look at a letter we received on 21 September 2006 from Hughmans which is not without prejudice.
45. MR JUSTICE SULLIVAN: Mr Black, shall I look at them in chronological order? September 11.
46. MR BLACK: I am trying to remember what my letter of September 2006 says.
47. MR JUSTICE SULLIVAN: It says:

" ..... We invite you at this stage to agree to an order for costs setting aside the order as it is quite clear from your own evidence that it should not have been made."

That is that part of that letter. (Pause) I have read that letter, yes. You rely on this letter?

48. MR BLACK: I merely state that that letter was put into play under the CPR, under rules relating to costs. The court obviously has a discretion. Given the somewhat curious manner in which this case comes before you, I would ask you hence to provide in the costs order that no costs up until 17 August and the defendant's costs thereafter. I am aware that there is a summary assessment. I am minded to have a summary assessment. The only difficulty I foreshadow is that whilst it is stated, the standard clause, "costs estimated above do not exceed the costs which the defendant is liable to pay," in fairness, the standard clause one completes is done on an assessment. It would normally be the case that only 60 to 70 per cent of the costs would be awarded. Hence if you were minded to award costs against the claimants as from the inception of proceedings it would be my submission that it would only be 60 per cent of the sum claimed of £9,020 which, according to my calculations, is a figure shortly over £5,000 because it is clear by the certificate that there are no further solicitor and client costs to be collected, so to speak, and hence this schedule or statement has been prepared upon an indemnity costs basis, and it is not appropriate that the court should be awarding indemnity costs in a case of this nature. The figure at 60 per cent is £5,412.
49. MR BIRD: I address this in two stages; first, the issue of the principle. The application was always misconceived, misconceived from the outset. Any misunderstanding in terms of the report could have been addressed by writing a letter before action. There was no such letter. There was never any substantial prejudice suffered at any stage throughout the proceedings, so it was bound to fail in my submission. It was misconceived. It is quite clear on the correspondence that your Lordship has seen that the claimants intended to persist with all of their heads of claim. Of course although the issue about the report became an issue for this hearing, you will recall the expression that we had to clear a lot of dead wood along the way in terms of Robinson arguments. We also had to deal with the other procedural issues aside from the background paper issue.
50. It is not, in my submission the right way, even were you minded to go with the claimants, simply to apportion by reference to dates because the vast majority of expenses has been incurred addressing the other issue as opposed to background, an issue which is in one paragraph of Mrs Hughes' witness statement. We (?) would have needed the others in any event.
51. In my submission, the principle should be rejected and the council should be entitled to all its costs. This is not a case in which the council's ratepayers should have to bear any costs.
52. MR JUSTICE SULLIVAN: This is, as it were - - ie, full costs as opposed to equivalent of what you would get after assessment?
53. MR BIRD: As far as that is concerned, as far as the indemnity costs issue, I am not satisfied that in this case it makes any material difference. I pass up my copy of the costs set out (?) on indemnity basis
54. MR JUSTICE SULLIVAN: Normally the issue is taken - if it is an issue to be taken - with the rates, hourly rates or time spent whatever. Those points are not taken but - - - - -
55. MR BIRD: No.
56. MR JUSTICE SULLIVAN: Was there a summary assessment of the claimants' costs?
57. MR BIRD: There was, yes, as far as I know.
58. MR JUSTICE SULLIVAN: I always ask to see those to see if the claimants' costs are out of kilter. Sometimes it is interesting to see what was in kilter.
59. MR BIRD: It is very helpful.
60. MR BLACK: If it would assist your Lordship, I think you will conclude that ours are very reasonable.
61. MR JUSTICE SULLIVAN: Yes.
62. MR BLACK: On a second view, if I am correct, I am seeking to challenge rates. I am not challenging - - at least I am challenging a very simple premise, and that is (the two lines):

"The costs estimated above do not exceed the costs which the defendant is liable to pay or can recover for legal services in respect of the work which this estimate covers."

It is the indemnity point, and under an assessment and the costs assessment office it would be based on a proportion - the standard costs - as opposed to indemnity costs. That is why I put my stall at 60 per cent.

63. MR JUSTICE SULLIVAN: Usually on these summary assessments in fact, people put in the costs they have incurred. Unless there is a criticism of the rate or hours made - obviously there may be an exceptional basis - usually we do not knock them down by some arbitrary figure of 60 or 70 per cent. If a solicitor says "I took three hours to do this and my hourly rate is, say, £200 an hour or £180 an hour" then, unless that is criticised and someone says "You should have taken only half-an-hour, and frankly you are not worth more than £100 an hour" then - - - - -
64. MR BLACK: I accept that entirely. But it does seem to me that because of that, that the wording does then invoke the suspicion that it is indemnity costs. And it is not right that indemnity costs should be applied to a case of this nature.

R U L I N G

65. MR JUSTICE SULLIVAN: So far as the principle of costs is concerned, there is not any dispute that the claimants should pay the defendant's costs.
66. As to the quantum, there are two issues. First, whether or not costs should be awarded only as from the date of the council's witness statements in August 2006; and, second, the overall issue as to the amount.
67. As to the first of those issues, I might have had some sympathy with the claimants if they had been seeking permission to withdraw their application for judicial review on receipt of the council's explanation as to what had happened. But they did not. They persisted with their application, and so it is clear that notwithstanding that explanation - particularly about the absence of another report - they considered that it was right to pursue their case. In those circumstances it seems to me that the point is really an academic one, and the defendant should be entitled to the whole of its costs.
68. As to quantum, although it is said that effectively the claimants' costs are on an indemnity rather than a standard basis, again it seems to me that that is very much a matter of form from looking at the words because no criticism is made either of the hours undertaken and/or of the rates.
69. Moreover there are two factors, it seems to me, which are relevant in deciding whether or not these costs for this case are proportionate. First of all, the sum of £9,020 is on the high side for a one-day planning case, but this was a case where a number of issues were raised which have simply fallen by the wayside and a whole mass of matters were raised and had to be addressed in the council's witness statements and skeleton argument. A large bundle of authorities was prepared, so this undoubtedly is a heavier than normal one-day planning case. The reason why it is heavier than normal is because a number of issues were raised by the claimants which, in the end result, were not pursued, no doubt wisely in the light of the defendant's skeleton argument.
70. The second matter is this. It is always helpful to look at the other side's assessment of costs to give some sort of impression as to whether or not the successful side's costs are not unreasonable. In the present case the claimants' costs are considerably in excess of the costs that are being claimed by the council. It seems to me against this background that it does not lie in the claimants' mouths to say that the cost of £9,000 claimed by the council is disproportionate.
71. For all of these reasons the defendant's costs are summarily assessed in the sum claimed - £9,020 - and those costs are to be paid by the claimants.
72. I will give back these letters to both of you. They ought to go back on the files.