Site inspections and fairness

David Merson considers the issue of planning related site inspections and reports on the recent High Court decision in R (on the application of Wilkson Properties Limited) v Royal Borough of Kensington & Chelsea.

Site inspections are an occupational necessity for those involved in the planning process.

Surveyors, Architects and Planning Consultants carry them out as a matter of course before advising private clients on development proposals and drawing up schemes for consideration by local planning authorities. Council planning officers carry them out in order to understand and assess schemes before making decisions under delegated authority or advising the relevant development control committee which determines them. Committees very often allow members to undertake formal inspections in accordance with strict local protocols. Planning Inspectors carry them out when hearing and determining appeals although their initial inspection is unaccompanied and from a public viewpoint only, while their formal accompanied visit does not allow further discussion of the issues by the parties.

None of these situations generally give rise to difficulties because the parties are usually co-operative and in attendance. Landowners are generally part of the process and therefore readily consent. Appointments are often made in advance with the applicant or the agent.

Where difficulties arise is in the context of enforcement type action, when there is often an absence of co-operation or where not all of the relevant parties are in attendance.

Background

One such example arose in the case of R (on the application of Wilkson Properties Limited) v Royal Borough of Kensington & Chelsea [2010] EWHC 3274 (QB).

This case involved the making of an emergency Tree Preservation Order (“the Order”) which, while taking effect immediately, only remained valid for six months unless confirmed by the order making authority within that time.

The Royal Borough of Kensington & Chelsea (“the Council”) made such an order which, by virtue of its internal scheme of delegation, required that opposed orders had to be considered by its Planning Applications Committee (“PAC”) which was empowered to confirm orders in such circumstances.

In doing so in this case the PAC heard representations from the landowner’s representative on its objections to the order. At the committee meeting which heard these objections the Chairman of the PAC reported that he had personally carried out his own site inspection of the location of the affected tree and that he had done so accompanied only by the Council’s arboricultural officer.

It was suggested in the complaint that this was not a formal site visit at which the landowner would otherwise have been entitled to have been present. If only one party has access to the tribunal on a site visit then this must lead a reasonable and fair-minded observer to have a reasonable suspicion that a fair hearing was not possible (see R v Ely Justices ex p Burgess [1992] Crim LR 888). In the Burgess case the prosecutor had returned from a site view in the same car as the magistrates trying the case, while the facts in the present case give a much stronger indication of unfairness because the site visit was undertaken with the express purpose of allowing the Council’s arboricultural officer (who was in effect promoting the order) to talk to the Chairman about the order. They were alone together throughout the visit and those opposing the order were not able to observe or comment upon the arboricultural officer’s remarks. This inevitably leads to an appearance of bias/unfairness.

It was further suggested that the fact that the Chairman had visited without the other PAC members or the landowner was fatal to the fairness of the hearing. Any fair minded and informed observer would think and be entitled to infer that the Chairman’s evidence obtained on this site visit might have played a part in influencing the decision making process (see R (Broxbourne Borough Council) v North and East Hertfordshire Magistrates’ Court and Geoffrey Oliver [2009] EWHC 695 (Admin) and the cases referred to therein).

Statutory Powers and Guidance

There is provision within the Town and Country Planning Act 1990 section 214B to allow for access to any land for the purpose of “(a) surveying it in connection with making or confirming a tree preservation order with respect to the land; (b)…, if there are reasonable grounds for entering for the purpose in question”.

Section 214C provides for the issue of a Justice’s warrant to enter the land where “(a) there are reasonable grounds for entering any land for any of the purposes mentioned in section 214B (1) or (2); and (b) that (i) admission to the land has been refused, or a refusal is reasonably apprehended; or (ii) the case is one of urgency.

These provisions however also need to be read in the context of the Department for Communities and Local Government’s (“DCLG”) non-statutory guidance on TPOs entitled Tree Preservation Orders: A Guide to the Law and Good Practice (“the DCLG Guidance”).

The second paragraph of the Preface explains the status and scope of the guidance as follows: “This Guide sets out the Government’s policy advice on the tree preservation order system. It outlines the law as it currently stands in England, taking into account the Town and Country Planning (Trees) Regulations 1999 which came into force on 2 August 1999. It also suggests ways in which local planning authorities can run the system in line with good administrative practice. Authorities are not required to follow the advice given; the Guide imposes no new burdens on them. But for many authorities the Guide is a useful point of reference which is relevant to their day-to-day work.”

Paragraphs 3.36, 3.37 and 3.38 of the Guidance provide as follows

“3.36 If objections or representations are duly made, the LPA cannot confirm the TPO unless they have first considered them. To consider objections and representations properly it may be necessary for the LPA to carry out a further site visit, which would in any case be appropriate if the LPA had not yet assessed fully the amenity value of the trees or woodlands concerned. Any objection or representation made on technical grounds (for example, that the tree is diseased or dangerous) should be considered by an arboriculturalist, preferably with experience of the TPO system.

3.37 Discussion between the LPA and any person who makes an objection is encouraged. Discussion can lead to a greater mutual understanding of each side’s point of view. This in turn can help clarify the main issues which will have to be considered by the LPA before they decide whether to confirm the TPO. Alternatively, discussions can lead to the withdrawal of objections.

3.38 Since LPAs are responsible for making and confirming TPOs, they should consider establishing non-statutory procedures to demonstrate that their decisions at the confirmation stage are taken in an even-handed and open manner. For example, the LPA officer could prepare a report for the committee or sub-committee that will decide whether to confirm the TPO. The report could include details of all objections or representations and the LPA officer’s observations on these in the light of any site visit or discussions with people affected by the TPO. A copy of the report could be sent to those people who have made objections and representations, with an invitation to submit any further views before the committee meets to make their decision. The LPA could arrange for members of the committee to visit the site of the trees before making their decision. The visit could be followed by a hearing or inquiry back at the Council offices. Where people affected by the TPO and the LPA officer are given a final opportunity to state their case.”

A footnote to paragraph 3.36 makes the point “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 (1997) 73 P&CR 439).

The decision

The High Court, following a two day hearing, quashed the Order confirmed by the Council.

Mr Vincent Fraser QC (sitting as a Deputy High Court Judge), in a reserved judgment, when considering the issue of apparent bias was troubled by the site visit carried out by the Chairman of the PAC accompanied only by the Council’s arboricultural officer. The judge accepted that the latter had made the Order as a result of his views as to the value of the tree and had prepared the report setting out why the objections should not be accepted. The judge acknowledged that the Council’s arboricultural officer was actively involved in the promotion of the Order.

The judge indicated that “In the context of the making and confirmation of a TPO where there is no scope for a review of the merits before an independent third party it is important that objections are considered in an even-handed and open manner as paragraph 3.38 of the DCLG Guidance advises”.

The judge made clear that “…it is important that the decision maker (in this case the members of the PAC) is not influenced by any representations of which the objectors are unaware and which they have had no opportunity to address…” and that it is “…important that an appearance of such unfairness is not created”.  Accordingly the attendance of the Council’s arboricultural officer was “… inappropriate and gives rise to real concerns as to what if anything … (he) might have been saying about the amenity value of the tree on the site visit”.

The attendance of the Council’s arboricultural officer on the site visit given his role in the proceedings and the nature of the proceedings took the case outside the type of unaccompanied site visit contemplated in Broxbourne and the authorities cited therein. The judge took the view that the Council’s arboricultural officer could not, for example, be compared with a judge’s clerk and that “There is a material difference between the situation where a local authority committee is considering whether to confirm a TPO despite objections and the position of the same committee determining planning applications in which the authority has no additional interest”.

The judge concluded that “…the procedure was not conducted in an open manner and was not seen to be even handed. The enhanced duty of fairness was not met in this case.”

The judge granted the relief sought by the landowner and duly quashed the Order. Permission to appeal was refused.

Conclusion

It is all too easy for local planning authorities and their officers to fail to appreciate the enhanced duty of fairness that must be met is such situations. The decision in the Wilkson case reaffirms the longstanding position that local planning authorities must act, and more importantly be seen to act, fairly when dealing as promoter and decision maker with decisions that impact on landowners and their property.

David Merson is Head of Planning and Environment at Steeles Law and can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..