Thursday, 5 February 2009

immediate suspension of the tree felling

we ask Cllrs to call for an immediate suspension of the tree felling?

Thank you for your reply below with the extract from Lord Denning’s judgement.

I am not talking about a ‘change in use’ of a front garden to retail purposes, but about the separate sub-clause:

(e) any change in the use of any land which constitutes material development.

so that part of your argument can be discarded.

This development includes the felling of mature trees in the Conservation Area (that otherwise would not be permitted) and tree planting within the Park to replace the existing tree screen (immediately to the east of the dock feeder and to the north and south of the planning application site boundary).

Lord Denning distinguishes between bringing equipment onto the site or pegging out a site – “operations” that can be readily reversed – and activities causing physical alteration “with some degree of permanence to the land itself:…”.

I note that

# felling of mature trees indisputably satisfies the “some degree of permanence” criterion – we don’t need to argue a 10 year or 30 year duration, even if semi-mature trees were to be planted (not yet determined)

# the landscape of Bute Park is a key characteristic (Grade 1 landscape)

# mature trees are an ecosystem that cannot be quickly recreated, providing habitat for a range of birds and plants and invertebrates lower in the food chain.

# land denuded of trees suffers changes in nutrient balance, erosion and leaching (eg. into the canal). This could be relevant to at least one pre-condition.

Thus Lord Denning’s condition - for operations that cannot readily be reversed having a degree of permanence to the land covered by the development as conditioned - clearly applies to felling of mature trees, at least in this special location.

Lord Denning does indeed conclude on the matter of sympathy for the developer or the public, saying when sympathies are balanced, one must decide “by the true interpretation of the statute”. Council officers have no role in deciding that the balance of sympathies lie with the developer as you imply they have done.

You say “it is a matter for the Planning Officer to consider the facts and come to a professional conclusion” to justify, post hoc, their decision. I infer they did it without taking legal advice on what you claim to be an arguable area of law.

The Planning Officers were unaware of Lord Denning’s “degree of permanence” argument and are not qualified to draw a “professional conclusion”. You have not been able to provide them with a defence, so instead of passing the buck to their “professionalism” you need to tell them their position is not a true interpretation of the Statute.

-----"Shimell, Geoff" wrote: -----

From: "Shimell, Geoff"
Date: 02/05/2009 12:48PM
Subject: College of Music

I refer to your email of 4 February timed at 15.26, which has been forwarded to me by the Planning Officer. The question of whether a planning permission has been implemented is complex issue which turns on the facts of individual cases. Litigation normally arises where the Planning Authority is contending that permission has not been implemented when a developer seeks to preserve a permission which has run out of time by contending that some preliminary works amount to "implementation".

I thought it would useful to send you the attached extract which sets out the view of a senior Judge ie Lord Denning in a 1982 Court of Appeal case, called Malvern DC v. Secretary of State for the Environment [even though the Judges in that case disagreed on their interpretation of the facts!] The case refers to section 43 of the 1971 Planning Act which has now been replaced by section 56 of the current Act

As you will see, Lord Denning says that preparatory works will not implement a permission. The section talks about a "material operation" and " a change in use of any land which constitutes material development". By reference to Lod Denning's interpretation of "a material operation" I am not aware of the College having carried out any works which fall within the definition. In regard to a change of use which is material development, you will note Lord Denning's reference to changing the use of a front garden occuring when the new use begins. The planning officer has advised you of his view that Bute Park is an open space consisting of trees, shrubs and grass land. He removal of the tress as preparatory works does not change that open space use. That will only occur when the College implements it construction of the Concert Hall.

Lord Denning concludes that there is a diffcult balance to be drawn between the interests of the developer and others. However the Planning Officer has considered the present set of facts and has come to the conclusion that there has not been a material operation or a change of use which constitutes material development. The view of Lord Denning was followed by Mr Justice Elias in a 2001 case called Connaught Quarries Ltd v. Secretary of State for the Environment, Transport and the Regions and Hampshire County Council, where the Judge said that "this was an area where different [Planning] Inspectors could have come to different conclusions without erring in law". That is to say, it is a matter for the Planning Officer to consider the facts and come to a professional conclusion.

Geoff Shimell
for Legal Services / Gwasanaethau Cyfreithiol
County Hall/Neuadd y Sir
Atlantic Wharf/Glanfa Iwerydd
CF10 4UW

Tel/Ffon 029 20 872430
Fax/Ffacs 029 20 872470

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