The question of who can apply to the court under section 288 of the Town and Country Planning Act 1990 as a “person who is aggrieved” arose earlier in the context of a challenge to the decision of the secretary of state to grant planning permission on a called-in application for a controversial development: see PP 2009/78. The procedure is available, however, to question the validity of a variety of orders and a range of actions on the part of the secretary of state: see section 284 of the Act. Bown v Bristol City Council [2009] EWHC 1747 (Admin) concerned a tree preservation order (TPO). The facts of the case, however, are a little unusual.
Mr Bown was employed by the council as an arboricultural officer. As such, he acted as the case officer in investigations that resulted in the council making a woodland TPO in respect of a belt of trees within a conservation area. Mr Bown believed that the order should not have been made, and he applied to the court under section 288. The court took the view that it was consistent with the objectives of the Civil Procedure Rules and the concept of proportionality to deal with the question of whether Mr Bown could be a “person who is aggrieved” for the purpose of section 288 as a preliminary issue.
The question of who can apply to the court under section 288 of the Town and Country Planning Act 1990 as a “person who is aggrieved” arose earlier in the context of a challenge to the decision of the secretary of state to grant planning permission on a called-in application for a controversial development: see PP 2009/78. The procedure is available, however, to question the validity of a variety of orders and a range of actions on the part of the secretary of state: see section 284 of the Act. Bown v Bristol City Council [2009] EWHC 1747 (Admin) concerned a tree preservation order (TPO). The facts of the case, however, are a little unusual.
Mr Bown was employed by the council as an arboricultural officer. As such, he acted as the case officer in investigations that resulted in the council making a woodland TPO in respect of a belt of trees within a conservation area. Mr Bown believed that the order should not have been made, and he applied to the court under section 288. The court took the view that it was consistent with the objectives of the Civil Procedure Rules and the concept of proportionality to deal with the question of whether Mr Bown could be a “person who is aggrieved” for the purpose of section 288 as a preliminary issue.
The court held that Mr Bown was not “a person who is aggrieved” and therefore dismissed the claim. The judge referred to the decision of the Court of Appeal in Eco-Energy (GB) Ltd v First Secretary of State [2004] EWCA Civ 1566; [2005] 2 PLR 33 as the most recent authoritative exposition on the point and as a decision that was binding on him. There, Buxton LJ had stated that a “person who is aggrieved” for the purposes of section 288 is either: (i) the appellant in the planning process; (ii) someone who took a sufficiently active role in the planning process – that is to say, probably a substantial objector, not merely somebody who objected and did no more about it; or (iii) someone who has a relevant interest in the land.
In Bown, the court found that Mr Bown had at no stage objected in a private capacity to the making of the TPO. He had no conceivable interest, be it legal or equitable, in the land on which the trees stood and did not even live in the immediate vicinity of the land. The court also held that Buxton LJ did not intend that his phrase “someone who took a sufficiently active role in the planning process” should extend to an employee of the decision maker who has participated in the decision-making process and who disagrees with the decision reached.
Once more, the courts have made it clear that third parties that seek to rely on a claim under section 288 have to clear a quite substantial threshold in order to qualify. They should be conscious of this at an early stage and plan their actions accordingly.
John Martin is a freelance writer
