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Tree Protection Order Confirmed Unfairly

Gregory Jones QC

Wilkson Properties Ltd v Royal Borough of Kensington and Chelsea [2010] EWHC 3274 (QB)7

Gregory Jones successfully represented the claimant in a statutory review of a decision to confirm a Tree Preservation Order (TPO), which was brought under section 288 of the Town and Country Planning Act 1990. 

The claimant property company owned premises at which a London Plane tree was growing.  Under the Council's procedures, TPOs were issued in the first instance by the Council's arboricultural officer and were then confirmed by the elected members after the subject of the order had had an opportunity to raise objections.  The Council had served a TPO on the claimant in respect of the tree, and the members voted to confirm it at a meeting of its Planning Applications Committee.  At the meeting, the arboricultural officer was promoting the order and the claimant was objecting to it.  The committee chairman announced that he had visited the site with the arboricultural officer (but not with representatives of the claimant) prior to the meeting.

Deputy High Court Judge Fraser held that objections had to be considered in an ‘open and even-handed manner' (at [78]).  He applied the case of Stirk v Bridgnorth (1997) 73 P&CR 439, considering the Council was under an enhanced duty to deal ‘thoroughly, conscientiously and fairly' with objections where it was ‘both proposer and judge' and there was no independent review of the merits of its decision (see paragraphs [42] and [43]).  Applying those principles, he held that the procedures adopted by the Council were not even-handed and were not seen to be fair ([76], [78] and [79]).  The confirmation of the TPO was quashed.