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Mr Beyers house suffered structural damage through subsidence caused by the roots of an
adjacent Oak tree located upon his property which was the subject of a Tree Preservation
Order (TPO). He applied to Uttlesford District Council (UDC) to fell the tree. The tree
was visited by a landscape officer who recommended to a planning officer that the
application be refused and that an Article 5 certificate be issued.
A refusal notice and covering letter was sent to the claimant. The letter stated that
the application had been refused and informed the tree owner of his rights regarding
appealing against this decision and against the issuing of an article 5 certificate which
accompanies the decision notice. It also invited him to apply for a 50% crown reduction.
However, no Article 5 certificate was included with the decision notice.
An arboriculturist was engaged. He concluded that such a reduction would not be
effective in preventing further damage. He wrote to the planning officer at UDC informing
him that no Article 5 certificate was issued. On the same day an Article 5 certificate was
sent to the claimant.
The claimant appealed to the Sec of State against the refusal of consent and against
the issuing of the certificate with the contention that the certificate was unlawful
because it had not been issued with the original decision notice. This was dismissed by
the Sec of State where he held that the issuing of the certificate had been decided and
that the lack of an actual document being sent to the claimant 'was likely to be an
oversight' but in his view is still considered valid.
Part of the case for the claimant was that the certificate was not valid because a
document had not been physically sent with the decision notice. The defence maintained
that it was valid because the planning officer had 'instructed its issue' and informed the
claimant by letter concerning his rights of appeal.
"I do not accept that uncommunicated instructions to another officer would be
capable in law of amounting to certification for the purposes of Article 5."
"Both the letter and the notice of the right to appeal refer to the Article 5
Certificate accompanying or attached to the decision notice. The letter did not itself
purport to be a certificate at all. The terms of the letter are in my view at best
equivocal as to whether or not a certificate had in fact been issued, when none was
attached to the decision notice".
The decision of the Secretary of State was quashed.
See full transcript at link below. |