Town and Country Planning Act 1971, section 102(1)–Alleged contravention of tree preservation order–Whether knowledge of the existence of order is an essential ingredient in the offence–Respondent, a tree feller by occupation, had been erroneously informed by the landowner, who had misunderstood the situation, that permission had been given to fell a mature oak tree–Relying on this information, and despite a warning from a local parish councillor, the respondent made two cuts in the tree which rendered it dangerous, so that it had then, with official sanction, to be felled–Magistrates acquitted the respondent of the charge on the ground that knowledge of the existence of the order was essential to the commission of an offence–Held by Divisional Court that this was one of the categories of absolute offences of a quasi-criminal type for which Parliament did not intend mens rea to be an ingredient–The provision would have little deterrent effect if the prosecution had in each case to establish that the accused had knowledge of the relevant tree preservation order–Appeal allowed and justices directed to convict
This was an
appeal by Maidstone Borough Council against the dismissal by Maidstone Justices
of an information against the respondent, John Mortimer, charging him that at
11 Rushford Close, Headcorn, he contravened a tree preservation order by the
destruction of an oak tree, contrary to section 102(1) of the Town and Country
Planning Act 1971.
H Sales
(instructed by Sharpe, Pritchard & Co, agents for K B Rogers, Council
Offices, Maidstone) appeared on behalf of the appellants; D T A Davies
(instructed by Hallett & Co, of Ashford) represented the respondent.
Giving the
first judgment at the invitation of Waller LJ, PARK J said: This is an appeal
by case stated by the Maidstone Borough Council against the dismissal by the
Maidstone justices on August 22 1978 of an information against the respondent
charging him that he did on Friday, January 13 1978 at 11 Rushford Close,
Headcorn, contravene the provisions of the County of Kent (Hollingbourne Rural
District) Tree Preservation Order no 2 1964, and that without the consent of
the Maidstone Borough Council he did wilfully destroy an oak tree specified as
T2 in the first schedule to the order and on the plan annexed thereto, contrary
to section 102(1) of the Town and Country Planning Act 1971.
Section 102(1)
says that if any person, in contravention of a tree preservation order, cuts
down or wilfully destroys a tree or tops or lops a tree in such a manner as to
be likely to destroy it, he shall be guilty of an offence and liable on summary
conviction to a fine not exceeding £250 or twice the sum which appears to the
court to be the value of the tree, whichever is the greater.
On this
appeal, the question for determination is whether on a charge under section
102(1) knowledge of the wrongfulness of the accused’s act has to be proved by
establishing that he knew of the existence of the tree preservation order in
respect of the tree, the subject-matter of the charge.
The respondent
is by occupation a tree feller. He was employed by a Mrs Twydell to cut down a
fully-mature oak tree which was subject to the tree preservation order referred
to in the information. Mrs Twydell told the respondent, as she honestly believed
to be the case, that she had received permission from the parks department of
the borough council to cause the tree to be felled. No such consent had in fact
been given. After the respondent had made one cut in the tree, he was told by a
Mr Woodcock, the vice-chairman of the parish council, that he believed that the
tree was the subject of a tree preservation order. Mr Woodcock requested the
respondent to stop the tree-felling operation until the arrival of a Mr Musker
who would be able to confirm, or otherwise, the existence of such an order. The
respondent, in reliance upon the accuracy of Mrs Twydell’s information, made a
further cut in the tree.
The combined
effect of the two cuts made the tree dangerous so that a council official, who
eventually arrived at the scene, ordered the felling of the tree to be
completed.
The justices
held that, by his deliberate act in making cuts in the tree, the respondent had
wilfully destroyed the tree. In arriving at that conclusion, the justices
followed the decision of this court in Barnet London Borough Council v Eastern
Electricity Board [1973] 2 All ER 319, where it was held that if a person
inflicted on a tree so radical an injury that in all the circumstances a
competent forester, taking into account its situation, eg its proximity to a
highway, would decide that it ought to be felled, that person would have
‘wilfully destroyed’ the tree within section 29(1)(a) of the 1962 Town and
Country Planning Act.
No serious
challenge is made nor could be made on the respondent’s behalf to this finding.
The justices nevertheless acquitted the respondent because, in their opinion,
knowledge of the existence of the tree preservation order was an essential
ingredient of an offence under section 102(1) and the respondent did not have
that knowledge.
I think it is
necessary to consider first those sections of the Town and Country Planning Act
1971 which deal with tree preservation, in order to determine the mischief with
which this part of the statute is intended to deal.
Section 59
imposes on the local planning authority the duty of ensuring, whenever it is
appropriate, that when granting planning permission for any development,
adequate provision is made by the imposition of conditions, for the
preservation or planting of trees and to make such tree preservation orders
under section 60 as may be necessary in connection with the grant of such
permission to give effect to the conditions imposed.
Section 60(1)
says: ‘If it appears to a local planning authority that it is expedient in the
interests of amenity to make provision for the preservation of trees or
woodlands in their area,’ they may make a tree preservation order with respect
to such trees as may be specified in the order; ‘and, in particular, provision
may be made by any such order–(a) for prohibiting . . . the cutting down,
topping, lopping or wilful destruction of trees except with the consent of the
local planning authority. . . .’ I need
not refer to the remainder of section 60.
Section 62
deals with the replacement of any tree in respect of which a tree preservation
order is in force. If such a tree is removed or destroyed in contravention of
the order, it is the duty of the owner of the land, unless he obtains
dispensation from the local authority, to plant another tree of an appropriate
size and species at the same place as soon as he reasonably can.
Thus section
102 is the section whereby the provisions of section 60 are enforced and
section 103 relates to the enforcement of section 62.
In my
judgment, therefore, these sections demonstrate that Parliament intended that
no tree, the subject of a tree preservation order, should be cut down or
wilfully destroyed or topped or lopped in such a manner as to be likely to
destroy it without the consent of the local authority. Plainly it is of the
utmost public importance that such trees should be preserved. The risk to their
continued existence in these days of extensive building operations, which
encroach further and further into rural areas, is very great. It is not a difficult
task for any member of the public wishing to interfere with the shape, size or
continued existence of a tree to obtain from the local authority reliable
information on the question whether the tree is the subject of a preservation
order and, if so, to seek the authority’s consent to the operation proposed.
(Mrs Twydell appears to have made a most perfunctory inquiry of the wrong
department of the local
claims to have been told.) Thus, there
can be no hardship to a member of the public in having on or near land which he
owns or occupies any protected tree.
For these
reasons, in my judgment, section 102(1) is a section to which the words of
Wright J in Sherras v De Rutzen [1895] 1 QB 918 at pp 921 and 922
can be applied. He said:
There is a
presumption that mens rea, an evil intention or a knowledge of the
wrongfulness of the act, is an essential ingredient in every offence; but that
presumption is liable to be displaced either by the words of the statute
creating the offence or by the subject-matter with which it deals, and both
must be considered . . . the principal classes of exceptions may perhaps be
reduced to three. One is a class of acts which . . . are not original in any
real sense, but are acts which in the public interest are prohibited under a
penalty.
I need not
refer to the two other classes of exceptions he mentions.
In Sweet
v Parsley [1970] AC 132 at p 149 Lord Reid referred to Wright J’s words
in Sherras v De Rutzen. He said:
In the absence
of a clear indication in the Act that an offence is intended to be an absolute
offence, it is necessary to go outside the Act and examine all relevant
circumstances in order to establish that this must have been the intention of
Parliament. I say ‘must have been’ because it is a universal principle that if
a penal provision is reasonably capable of two interpretations, that
interpretation which is most favourable to the accused must be adopted.
What, then,
are the circumstances which it is proper to take into account? In the well-known case of Sherras v De
Rutzen [1895] 1 QB 918 Wright J only mentioned the subject matter with
which the Act deals. But he was there dealing with something which was one of a
class of acts which ‘are not criminal in any real sense, but are acts which in
the public interest are prohibited under a penalty’ (p 922). It does not in the
least follow that when one is dealing with a truly criminal act it is
sufficient merely to have regard to the subject matter of the enactment. One
must put oneself in the position of a legislator. It has long been the practice
to recognise absolute offences in this class of quasi-criminal acts, and one
can safely assume that, when Parliament is passing new legislation dealing with
this class of offences, its silence as to mens rea means that the old
practice is to apply.
In deciding
whether this section of the Town and Country Planning Act 1971 is one to which
‘the old practice’ is to be applied, I think it is right to bear in mind that
if it were the law that no conviction could be obtained under section 102(1) unless
the prosecution could discharge the often impossible burden of proving that the
accused knew of the existence of the relevant tree preservation order, that
subsection would have little, if any, deterrent effect, so that protected trees
could be felled or otherwise destroyed without any appreciable risk of a
penalty being incurred by the wrongdoer.
The question
is: is the language of section 102(1) reasonably capable of two interpretations
so that the interpretation most favourable to the accused must be adopted? In my judgment, having regard to the nature
of the tree preservation sections of the Town and Country Planning Act 1971, to
the mischief with which those sections were intended to deal and to the fact that
the section relates to ‘acts which in the public interest are prohibited under
a penalty,’ section 102(1) is not capable of two interpretations. I do not
think that that section was intended to be interpreted or should be interpreted
as making the cutting down or wilful destruction of a tree or the topping or
lopping of a tree in such a manner as to be likely to destroy it, an offence
only if the accused had knowledge of the existence of the preservation order.
In my judgment, no such proof is necessary.
For these reasons, I would allow the appeal and,
on the facts found, direct the justices to convict the respondent on the
information. It is, I think, right to add, first, that as the respondent was
evidently misled by the information he had received from Mrs Twydell, that fact
can be reflected in the penalty imposed upon him and, secondly, that no
criticism of the justices’ decision can be or is made, since the point on which
the appeal in my view is allowed was either not taken or not fully argued
before them.
Agreeing,
WALLER LJ said: I only add a few words to deal with an argument advanced on
behalf of the respondent. It was argued that the words ‘in contravention of a
tree preservation order’ which occur in section 102(1) indicated that it was
necessary to prove conscious contravention and reliance was placed on some
observations of Lord Evershed in Lim Chin Aik v The Queen [1963]
AC 160 at p 176. Section 62 of the Town and Country Planning Act 1971 which
deals with replacement reads: ‘(1) If any tree in respect of which a tree
preservation order is for the time being in force, other than a tree to which
the order applies as part of a woodland, is removed or destroyed in
contravention of the order or . . .’ and then follow some provisions about
cutting down which is authorised, and the subsection concludes ‘it shall be the
duty of the owner of the land, unless on his application the local planning
authority dispense with this requirement, to plant another tree of an
appropriate size and species at the same place as soon as he reasonably can.’ It is clear, both from that subsection and
section 103, that the phrase ‘in contravention of’ applies to any felling other
than felling authorised by the appropriate authority. The phrase therefore
covers not only felling which is done with knowledge of a tree preservation
order but also felling which was done in ignorance of a tree preservation
order. The same meaning would, in my opinion, clearly be given to the same
phrase in section 102(1).
There was no
order for costs in the Court of Appeal.
