Appellant Forestry Commission preferring information against respondent for felling trees without a licence – Justices finding no licence required as land constituting a garden – Whether justices erred in finding land constituting a garden – Section 9(2)(b) of Forestry Act 1967 – Appeal allowed
In October 1999 an information was preferred under section 9(1) of the Forestry Act 1967 (as amended) against Portland Port Ltd (the respondent), alleging that between 1998 and 1999 it felled growing trees on its land without a licence issued by the Forestry Commission (the appellant). Section 9(2)(b) of the Act provided an exception to the licence requirement of section 9(1) in respect of trees “growing on land comprised in an orchard, garden, churchyard or public open space”. The justices found as fact that the area of land in question had previously been owned by the Royal Navy and was without doubt used as a garden. Although the land had become overgrown and neglected, there had been no change in its use. They therefore ruled that the land on which the felled trees had been located was at the relevant time a “garden” within the meaning of section 9(2)(b), and consequently did not require a licence. The information was dismissed.
The appellant appealed and submitted that at the relevant time, the land had ceased to be a “garden” as it had been untended for two and a half years. The question for the court was whether the justices erred in finding that the land could properly be regarded as a “garden” within the meaning of section 9(2)(b) of the Act.
Held: The appeal was allowed.
There was no statutory definition of “garden” in section 9(2)(b); thus it had to be given its ordinary meaning. It was necessary to consider the nature of the history of the land in question, its state and use at the relevant time and any intention as to its future use. In the instant case, the land had been previously described as a garden and had been disused for two and a half years, so as to be overgrown. It could no longer have been a garden unless there was evidence to suggest an intention regarding the use of that land, so that its historical categorisation as a garden could continue. There was no such evidence. It was disused and could no longer be described as a garden. The magistrates erred in their finding and used an inappropriate test. The decision was remitted for the justices’ reconsideration.
Dominic Grieve (instructed by the solicitor to the Ministry of Agriculture) appeared for the appellant; John Hobson QC (instructed by Lester Aldridge, of Bournemouth) appeared for the respondent.
Sarah Addenbrooke, barrister
