Town and Country Planning Act 1971, section 102(1) — Tree preservation order — Damage to tree protected by order — Act of independent contractor — Whether tree owner liable to prosecution for contravention of order — Tree on land owned by appellant company which was being developed by a contractor — Contractor warned of existence of preservation order and told not to touch or damage the tree in any way, but tree was damaged by contractor — Appellants were prosecuted and convicted by magistrates and fined £500 with £200 costs — Appellants had submitted to magistrates that they were not liable as the offence was not committed by their servant or agent, but by an independent contractor — On appeal the respondent council accepted that this submission was correct — Held that in these circumstances, where an independent contractor had been told expressly not to touch the tree, no other conclusion was possible — Appeal allowed — Conviction quashed
No cases are
referred to in this report.
This was an
appeal by Groveside Homes Ltd from their conviction at Walton on Thames
Magistrates’ Court under section 102(1) of the Town and Country Planning Act
1971 for uprooting a tree which was subject to a tree preservation order.
R Drabble
(instructed by Nabarro Nathanson) appeared on behalf of the appellant; A R G
Scott-Gall (instructed by the town clerk and chief executive, Elmbridge Borough
Council, Walton on Thames) represented the respondent council.
Giving the
first judgment at the invitation of Watkins LJ, STUART-SMITH J said: On
November 14 1986, at Walton on Thames Magistrates’ Court, the appellant company
was convicted of uprooting a tree in contravention of a tree preservation order
and section 102(1) of the Town and Country Planning Act. They were fined £500
with £200 costs.
The facts of
the matter were these. There was a tree on land owned by the appellant company
which was being developed by a third party, a contractor, who had been told of
the existence of the tree preservation order and told not to touch or damage
the tree in any way. The appellant’s manager of the site was there at the time,
but he was not present when the tree was damaged. In those circumstances, it
was contended on behalf of the appellant before the magistrates that they were
not liable because it was not their servant or agent who had committed the
offence, but an independent contractor.
It is now
accepted by Mr Scott-Gall on behalf of the respondent that that defence must be
correct. The section itself is one of strict liability, but the appellant can
be liable only if he is vicariously liable for the person who committed the
offence itself. In these circumstances, being an independent contractor who had
been expressly told not to touch the tree, it is difficult to see how any other
conclusion can be reached than that the appellants were not liable. That is now
recognised.
For those
reasons, this appeal must be allowed.
WATKINS LJ and
MANN J agreed and did not add anything.
The appeal
was allowed with costs in the Court of Appeal but not below.
