A test of reasonableness has prevailed in the case of a developer removing a tree with a Tree Preservation Order (TPO) who was prosecuted by North East Lincolnshire Council.
In the case of:
North East Lincolnshire Council V Mr S Hewson held at Grimsby Magistrates Court in July, two charges were brought concerning 54 Humberstone Avenue, Humberstone.
Firstly, that a Tree had been removed which was subject to a Tree Preservation Order, and secondly, that there was an alleged failure to notify the Authority of a Demolition of a building.
The trial was halted after his QC successfully argued that the proceedings should be stayed as an abuse of process which “offended the public conscience”.
Stuart Hewson had been prosecuted by North East Lincolnshire Council for uprooting a tree protected by a tree preservation order.
Clive Newberry QC of Francis Taylor Buildings, argued in defence of the developer that there had been an abuse of process because the Planning Authority had failed to include any reference to the TPO in its local land charges search which Hewson had obtained shortly before uprooting the tree.
In supplying a defective search the local authority had in effect removed the ability to ascertain that the tree was protected and that to remove it was an offence, the QC added. Logic would dictate that the Authority should have been aware in the initial discussions that they had made a mistake and had not communicated the existence of the Tree Preservation Order.
A second summons issued by North East Lincolnshire alleging a failure to notify the authority of an intention to demolish a building under the Building Act was also dropped by the local authority which offered no evidence.
A North East Lincolnshire Council spokesman said “Obviously, we’re very disappointed with the judge’s decision regarding the removal of the protected tree.
“We felt we had a valid case after the house and its garden were razed to the ground without any prior notice, but following further legal advice, we also chose not to proceed.”
Some persons would argue that this calls into question either the judgement of the Local Authority’s Counsel who after the initial review is purported to have charged £7,500 if he advised that the Developer has a case to answer or the council officer who made the decision to take this matter to court. The costs were reported in a Freedom of Information request to be:
IN THE CASE OF NORTH EAST LINCOLNSHIRE COUNCIL v Mr S Hewson
COSTS INCURRED BY NORTH EAST LINCOLNSHIRE COUNCIL
Legal Costs: (Case Preparation, document drafting and related matters)
File opened 1 hour
Taking instructions and reviewing evidence 5 hours
Issuing proceedings 2 hours
Updating client department 2 hours
Compiling brief to Counsel 5 hours
Court preparation, correspondence and travel 8 hours
Liaison with opposition solicitor (telephone calls, correspondence) 8 hours
Trial preparation 8 hours
TOTAL 39 hours @ £40.00 per hour £1,580
(NELC solicitor in attendance)
28th June 2013 £40
12th July 2013 £40
26th July 2013 £40
9th August 2013 £40
13th September 2013 £40
4th October 2013 £40
22nd January 2014 £40
7th March 2014 £40
8 appearances at £40 each; £320
18th November 2013 (Pre Trial Review) £750
17th July Trial first day £6,000
18th July Trial second day £1,500
GRAND TOTAL: £10,150