Action against farmer in respect of tree preservation order–Breach of interlocutory injunction–Judge’s sentence of one month’s imprisonment for contempt–Bail granted by Court of Appeal and appeal subsequently allowed–Judge’s order quashed
This was an
appeal by Hubert Dorrington Batchelor, of Thurnham Court, Bearsted, Kent, from
an order of Caulfield J, finding him guilty of contempt of court for breach of
an interlocutory injunction restraining him from cutting down or damaging any
tree on land owned or occupied by him which was the subject of a tree
preservation order, and sentencing him to one month’s imprisonment. The
interlocutory injunction had been granted by Chapman J on the application of
the plaintiffs, Kent County Council and Maidstone Borough Council, who had
issued a writ claiming an injunction and damages. Caulfield J’s order was made
on June 25 1976 and on the same day the Court of Appeal granted Mr Batchelor
bail on his own recognisance of £500.
George Newman
(instructed by Hallett & Co, of Ashford) appeared for Mr Batchelor; Anthony
Dinkin (instructed by W G Hopkin, County Hall, Maidstone) represented the local
authorities.
Giving
judgment, LORD DENNING said that in 1975 Mr Batchelor, a farmer, bought a large
mansion house and some land which had been derelict for 15 years. It was in an
area of natural beauty between Maidstone and Sittingbourne where there were
about 200 acres of woodland. At that time Kent County Council made a tree
preservation order under sections 60 and 61 of the Town and Country Planning
Act 1971 covering the 200 acres and a great deal of the land bought by Mr
Batchelor. He did not seem to have taken much notice of the order, and was said
to have cut down a lot of trees in part of the area. He had been served with 54
summonses, which had not yet been heard by the magistrates. Civil proceedings
had also been brought in the High Court and Chapman J had made an order for an
interlocutory injunction restraining Mr Batchelor from cutting down, uprooting
or in any way damaging any trees of named species on his land which were the
subject of a tree preservation order.
The court was
concerned with a tiny corner in old meadow land. On May 19 1976 operations on
the land were observed by a Mr Holt from his garden about 150 yds away. He saw
that scrub was being taken away by a bulldozer and that a large pine tree was
on the fire. He thought that trees were being uprooted within the area of the
tree preservation order. The county council took proceedings to commit Mr
Batchelor, and Caulfield J ordered him to be imprisoned for one month for
contempt consisting of disobedience to the injunction.
On a review of
all the evidence it appeared that Mr Holt, who was clearly an impressive and
honest witness, did not have the opportunities of judging whether or not there
was a breach of the order. He was looking from 150 yds away and without a map.
The only safe way of ascertaining what had occurred was for someone to go to
the prohibited area and see whether trees were being grubbed up there. But no
one went to the prohibited area for a few days. It was very unsafe on Mr Holt’s
evidence to say that there had been a breach of the injunction. The bulldozer
driver had been given instructions to keep clear of the prohibited area. Much
of the cleared matter had come from an area not within the order.
There was a
further point. There was an ambiguity in the Act and order, because they did
not say what was a ‘tree’ as distinct from saplings, shrubs and bushes, which
were not trees. There was no definition of ‘tree.’
His Lordship
sympathised a great deal with Kent County Council. There was nothing so
important as that, in areas of natural beauty, the trees and the woodland
should be preserved. It was only because it seemed to him that an offence
against the tree preservation order had not been proved that he would allow the
appeal and quash the order of the judge.
STEPHENSON and
SHAW LJJ agreed and the order committing Mr Batchelor to prison for contempt
was quashed.