Neutral Citation Number:  EWCA Civ 158
IN THE SUPREME COURT OF JUDICATURE C/2000/6155
IN THE COURT OF APPEAL (CIVIL DIVISION) PRO FORMA
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Jackson)
Royal Courts of Justice
Thursday 8th February, 2001
B e f o r e:
LORD JUSTICE DYSON
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ON THE APPLICATION OF DIANE BARKER
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(1) LONDON BOROUGH OF BROMLEY
(2) LONDON & REGIONAL PROPERTIES
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
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MR R McCRACKEN and MR J PERERIA (Instructed by Messrs Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the Appellant
MR G STONE QC and MR J STRACKAN (Instructed by London Borough of Bromley, Bromley BR1 3UH) appeared on behalf of the First Defendant
MR M HORTON QC and MR C BOYLE (Instructed by Lawrence Graham, London WC2R 1JN) appeared on behalf of the Second Defendant
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J U D G M E N T
(As approved by the Court)
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1. LORD JUSTICE DYSON: This is an application by the applicant for the continuation of an injunction that was granted first by Grigson J on 2nd February 2000 and then continued by me two days ago, to restrain both respondents from felling or otherwise interfering with trees situated on the site of the former Crystal Palace.
2. The position is that the second respondent has obtained outline planning permission for a very large development on that site. It also received approval of reserved matters on 6th May 1999 in respect of the development. There is now no longer any challenge to the grant of the outline planning permission. There is, however, a subsisting challenge to the grant of approval of the reserved matters, and it is in respect of that decision that earlier this afternoon I gave the applicant permission to appeal, directing that the hearing should be expedited.
3. It is accepted by Mr Stone, who appears on behalf of the London Borough of Bromley, that the main motivation for the wish to fell the trees is to facilitate the development for which outline planning permission and approval of reserved matters have been given.
4. As I have said, the trees are all on the site of the former Crystal Palace and would all, inevitably, have to be removed as part of the development of the site. The proposal for the removal of the trees has been the subject of an approved landscaping scheme, which itself was approved by the council by a notice dated 13th October 2000. It follows that the removal of the trees would be in an accordance with the terms of that outline planning permission and the conditions made thereunder.
5. Some concern was expressed in evidence put forward by Mr Buxton, who represents the applicant, that the trees had a special status and importance. There was a suggestion that the trees may be a remnant of the Great North Wood, and that they represented an important feature in the formation of a tree-lined ridge. There is evidence which has now been placed before me by Mr McMillan, the chief planning officer of Bromley, which shows that neither of those suggestions is well-founded. There is no basis for saying that the trees are a remnant of the Great North Wood. It seems that the trees were planted, after the destruction by fire of the former Crystal Palace in 1936, on made ground. An ecological report has been obtained in respect of the trees which was examined at the time that the application for outline planning permission was under consideration. That report did not identify the trees as ecologically valuable. Mr McMillan states that there is no objective basis for asserting the importance of these trees in terms of strategic visual importance of the site. The Urban Development Plan for the area does not in any part refer or attach weight to the existing trees on the site as forming part of strategic views of the ridge. Moreover, the site has been the subject of proposed development for many years. It is designated for development in the Unitary Development Plan. The Crystal Palace Act 1990 was passed expressly for the purpose of empowering the development of the site. Finally, there is the outline planning permission for the development to which I have already referred.
6. Mr McMillan also states that the trees on the top site at Crystal Palace represent a very small proportion of the total number of trees in the Crystal Palace Park, and there is an ongoing replanting scheme as part of the restoration of the park which involves the planting of over 600 new trees and 140,000 shrubs and plants.
7. That is the background. The reason why the council, supported by the developer, wish to have the trees felled as a matter of urgency is that unless the trees are felled before the end of this month, it will be unlawful for any felling operations to be carried out until about October. That is the effect of section 1(1) of the Wildlife and Countryside Act 1981 which deals with the question of damage or destruction of the nests of wild birds whilst they are in use or being built.
8. There is no evidence before me as to the nature of the developer's interest in the land (if any). However, Mr Horton submits that his client has some form of equitable interest pursuant to a contract, the terms of which, as I say, are not clear.
9. The principal basis upon which Mr McCracken challenges the resolution of the council to fell these trees is that in public law terms, as I understand it, it would be unreasonable to fell trees before a scheme has been approved in all its details and before finance is available to ensure that the scheme can go ahead. That is a stiff hurdle for any applicant to have to overcome, and in my judgment it has not been overcome even arguably in this case.
10. The background here is that there has already been very considerable delay, to the prejudice of the development of this site. That delay will have been exacerbated by the decision that I reached earlier today to grant permission to appeal. It is to be hoped that the appeal will be heard very shortly, and certainly well before October. The reason why the council wishes to fell the trees is because, if it does not do so now, it will not be able to do so until October, and that may well add to the delays in the implementation of this development.
11. There is no escape from the fact that this site has been allocated for a large development, that outline planning permission has been granted for it and there is no longer any possible challenge to that grant of outline planning permission. If the appeal is unsuccessful, then the council and the developer will wish, without any further delay, to be able to proceed with the development. It seems to me, in these circumstances and having regard to the various facts about the trees mentioned by Mr McMillan and to which I have already referred, that the decision taken by the council to go ahead with the felling now is one which was entirely reasonable for it to take. It was certainly one which fell within the scope of the reasonable exercise of its discretion.
12. For that reason, it seems to me that it would not be appropriate to continue this injunction and I accordingly propose to discharge it.
ORDER: Application for permission to appeal granted on all grounds, save ground 2; costs of the application to be costs in the appeal; order for expedition; estimate of 2-3 days; assessment of the applicant's community legal funding certificate; injunction discharged; claimant to pay the respondents' costs in the injunction application, not to be enforced without leave of the court; liberty to apply.
(Order not part of approved judgment)