Town and Country Planning Act 1971, sections 60(1) and (6) and 102(1) — Tree preservation order — Prosecution for cutting down tree without consent of local planning authority — Gale on October 16 1987 — Question as to burden of proof — Whether burden of proof as to condition of tree lay with prosecution or whether, as a true exception or exemption, it lay with defendants — Speeches in House of Lords in R v Hunt considered — Ruling by recorder in present case that burden of proof as to condition of tree lay with defendants held to be correct — Appeal against convictions dismissed
appellants in this case, a company involved in property development and the
company’s chairman or managing director, were convicted at St Albans Crown
Court of cutting down a beech tree, which was the subject of a tree
preservation order, without the consent of the planning authority — The tree
was cut down on the day after the violent gale of October 16 1987 — At the
trial the recorder ruled, on a preliminary point, that the burden of proof that
the defendants’ actions came within the exemptions set out in section 60(6) of
the 1971 Act (trees which were dead or dying or had become dangerous or where
action was necessary for prevention or abatement of a nuisance) rested on the defendants
— It was not, in the recorder’s view, for the prosecution to establish, as an
ingredient in the offence, the absence of the conditions mentioned in section
60(6) — The recorder’s ruling was reflected in the summing-up and in due course
the jury convicted the defendants — It was contended on appeal that the
recorder’s ruling was wrong and that he had misdirected the jury
relevant provisions in section 60(1), section 60(6) and section 102(1) were
considered by the court — The power to make a tree preservation order was
conferred on a local planning authority by section 60(1) of the 1971 Act — The
section creating the offence of contravening a tree preservation order was
section 102 — The ingredients of the offence were (1) the existence of a tree
preservation order, (2) proof that the defendant had cut down the tree or
carried out one or more of the other activities mentioned in subsection (1),
and (3) proof that the defendants’ action was done without the permission of
the planning authority — Provided that these three ingredients are present,
section 102 created an offence of absolute liability — Section 60(6), which
refers to exemptions from the tree preservation order in the cases of cutting
down, uprooting, topping or lopping of dying, dead or dangerous trees, inter
alia, does not create ‘negative ingredients of the offence’ to be proved by the
prosecution — It is a ‘free-standing exemption clause’, quite apart from the
statutory definition of the offence and proof of its application was a matter
for the defendants
view taken by the recorder, ‘in a concise and reasoned, albeit short, ruling,
distinguished by its clarity’, with which the Court of Appeal entirely agreed —
The recorder had referred to the case of R v Hunt, in which, although
the actual decision as to what the prosecution had to prove was different, the
speeches in the House of Lords were helpful in distinguishing between essential
elements in the proof of the offence and true exceptions and exemptions — The
burden of proof of the latter lay on the person asserting them — It was pointed
out in R v Hunt that when the cases are analysed those in which the courts have
held that the burden lies on the defendant are those in which that burden can
be more easily discharged by him — In the present type of case it would be far
easier for the owner of the land, or the person responsible for cutting down a
tree, to prove its condition at the time of the action than it would be for the
local planning authority
here came to the correct conclusion — Appeal dismissed
The following
case is referred to in this report.
R v Hunt [1987] AC 352; [1986] 3 WLR 1115; [1987] 1 All ER 1;
(1986) 84 Cr App R 163; [1987] Crim LR 263, HL
This was an
appeal by Alath Construction Ltd and Grenville Geoffrey Brightman, described as
the company’s chairman or managing director, from a decision of the St Albans
Crown Court, presided over by Mr Recorder Zucker QC, whereby the appellants
were held to have cut down a beech tree subject to a tree preservation order
without the permission of the local planning authority. The appellants claimed
that a preliminary ruling given by the recorder as to the burden of proof was
wrong in law and led to a misdirection to the jury.
David Anthony
Pearl (instructed by Parrott Coales, of Aylesbury) appeared on behalf of the
appellants; Philip Waller (instructed by Pickworths, of St Albans) represented
the Crown.
Giving
judgment, RUSSELL LJ said: These appeals raise a point of statutory
construction arising out of provisions relating to tree preservation orders
contained in the Town and Country Planning Act 1971 (as amended).
The first
appellant, Alath Construction Ltd, is, as its name implies, a company involved
in property development. The second appellant, Mr Grenville Geoffrey Brightman,
is the managing director or chairman of that limited company. At all material
times the company owned a plot of land in Berkhamsted whereon there were a
number of trees. The company developed the site, constructing a number of
dwellinghouses upon it.
In May 1984
the local planning authority, the Dacorum District Council, made a tree
preservation order entitled the ‘Dacorum District Council (Halcyon, Shootersway
Lane, Berkhamsted) Tree Preservation Order 1984’, which embraced the land to
which we have referred. Among the trees standing on the land was a beech tree
which photographs disclose was close to one of the dwellinghouses erected by
the company.
After the
making of the order the appellants made a number of applications for permission
to fell the beech tree, but all those applications were refused.
On October 16
1987 there was a great gale which ravaged large areas of the United Kingdom. On
October 17 1987 it is common ground that the beech tree on the appellants’ land
was cut down upon the instructions of the appellants, that being without the
permission of the planning authority.
In due course,
therefore, a prosecution ensued at the instance of the planning authority. The
appellants elected trial and the case came before the St Albans Crown Court
presided over by Mr Recorder Zucker QC.
After
arraignment a preliminary point was raised with the learned recorder as to the
burden of proof, it being contended on behalf of the appellants that the burden
of proving that at the material time the beech tree was not dying, or dead, or
dangerous, or creating a nuisance, lay throughout with the prosecution. The
learned recorder ruled that the prosecution did not have to prove that at the
material time the beech tree was in any of the conditions to which we have just
referred. He ruled, conversely, that there was a burden upon the defendants to
establish one or other, or all, of those conditions, and the trial proceeded in
the light of that ruling.
We have not
got a copy of the summing-up but it is common
jury convicted. It is against those convictions that this appeal is brought on
a point of law only, it being contended that the preliminary ruling made by the
learned recorder was wrong and that consequently he misdirected the jury upon
the task that confronted them.
The indictment
alleged a contravention of the tree preservation order to which we have
referred, the section of the statute breached being section 102(1)*. That
section reads:
If any
person, in contravention of a tree preservation order, cuts down, uproots or
wilfully destroys a tree or wilfully damages, tops or lops a tree in such a
manner as to be likely to destroy it, he shall be guilty of an offence . . .
*Editor’s
note: Now section 210 of the Town and Country Planning Act 1990.
As it seems to
us, that section creating the offence has within it the following ingredients.
First, there has to be a tree preservation order. Second, it has to be proved
that the appellants cut down the tree or carried out the other activities
referred to in the section. And, third, it has to be shown that whatever was
done by the appellants in the way of cutting down or engaging in other
activities relative to the tree was done without the permission of the planning
authority. No more than that is apparent from the section.
It is
necessary now to go to the section which is the enabling provision entitling
the planning authority in appropriate circumstances to make a tree preservation
order. That is an entirely different section of the Act. Section 60(1)† provides that a local authority may make a
tree preservation order if it appears ‘expedient in the interests of amenity’.
The section goes on to say that they may prohibit:
(subject to
any exemptions for which provision may be made by the order) the cutting down,
topping, lopping, uprooting, wilful damage or wilful destruction of trees
except with the consent of the local planning authority.
† Editor’s
note: Now section 198 of the Town and Country Planning Act 1990.
That, as it
seems to us, is the section which empowers the local authority to make a tree
preservation order, the breach of which gives rise to an offence under an
entirely different section, namely section 102(1), the offence under that
section being, in our judgment, an absolute offence, provided always that the
prosecution prove the three ingredients to which we have referred.
We move on to
consider section 60(6), to which our attention has been directed. That
provides:
Without
prejudice to any other exemptions for which provision may be made by a tree
preservation order, no such order shall apply to the cutting down, uprooting,
topping or lopping of trees which are dying or dead or have become dangerous,
or the cutting down, uprooting, topping or lopping of any trees in compliance
with any obligations imposed by or under an Act of Parliament or so far as may
be necessary for the prevention or abatement of a nuisance.
That
subsection, in our judgment, provides an exception to the absolute liability
created by the offence rehearsed in section 102. Section 60, it is to be
observed, does not create the offence. Section 60 deals with the circumstances
in which the local authority may make the order and section 60(6), in
particular, is, in our judgment, a free-standing provision quite independent of
section 102 and defines in terms the exceptions to the normal consequences of
cutting down a tree which is the subject-matter of an order. That being so, as
it seems to us, section 60(6) is truly an exception to the definition of
criminal liability to be found in section 102 and it does not create negative
ingredients of the offence in respect of which a burden of proof rests upon the
prosecution.
It is to be
observed that in the tree preservation order itself, para (2) reads:
Subject to the
provisions of this Order and to the exemptions specified in the Second Schedule
hereto, no person shall, except with the consent of the authority . . .
The paragraph
goes on to deal with the prohibited activities. Turning to Schedule 2, that
provides:
This Order
shall not apply so as to require the consent of the authority to . . .
In subpara (3)
of Schedule 2 there are set out those activities referred to in section 60(6).
They are only part of the exemptions created by Schedule 2 and from the section
of the Act itself we observe that the words of subsection (6) are prefaced by:
Without
prejudice to any other exemptions for which provision may be made by a tree
preservation order . . .
The wording of
section 60(6) itself reinforces our view that it is indeed a free-standing
exemption clause quite apart from the statutory definition of the offence to be
found in section 102.
In a concise
and reasoned, albeit short, ruling, distinguished by its clarity, the learned
recorder set out his analysis of the law and his conclusions. We shall refer to
them in a moment. We entirely agree with them.
During the
course of submissions made to the learned recorder he was referred to the case
of R v Hunt (1986) 84 Cr App R 163, a decision of the House of
Lords. It is unnecessary in this judgment to rehearse the facts of Hunt;
it concerned drugs. It had nothing whatever to do with tree preservation
orders, but some observations of their lordships in that case were of general
application. At p 174 of the opinion of Lord Griffiths this passage appears:
I would
summarise the position thus far by saying that Woolmington v DPP did
not lay down a rule that the burden of proving a statutory defence only lay
upon the defendant if the statute specifically so provided: that a statute can,
on its true construction, place a burden of proof on the defendant although it
does not do so expressly: that if a burden of proof is placed on the defendant
it is the same burden whether the case be tried summarily or on indictment,
namely a burden that has to be discharged on the balance of probabilities. The
real difficulty in these cases lies in determining upon whom Parliament
intended to place the burden of proof when the statute has not expressly so
provided. It presents particularly difficult problems of construction when what
might be regarded as a matter of defence appears in a clause creating the
offence rather than in some subsequent proviso from which it may more readily
be inferred that it was intended to provide for a separate defence which a
defendant must set up and prove if he wishes to avail himself of it.
Later, Lord
Griffiths said:
However,
their Lordships were in agreement that if the linguistic construction of the
statute did not clearly indicate upon whom the burden should lie the court
should look to other considerations to determine the intention of Parliament,
such as the mischief at which the Act was aimed and practical considerations
affecting the burden of proof and, in particular, the ease or difficulty that
the respective parties would encounter in discharging the burden. I regard this
last consideration as one of great importance for surely Parliament can never
lightly be taken to have intended to impose an onerous duty on a defendant to
prove his innocence in a criminal case, and a court should be very slow to draw
any such inference from the language of a statute. When all the cases are analysed,
those in which the courts have held that the burden lies on the defendant are
cases in which the burden can be easily discharged.
Finally, at p
176, Lord Griffiths said:
In Edwards (1974)
59 Cr App R 213, 221; the Court of Appeal expressed their conclusion in the
form of an exception to what they said was the fundamental rule of our criminal
law that the prosecution must prove every element of the charge. They said that
the exception:
is limited to
offences arising under enactments which prohibit the doing of an act save in
specified circumstances or by persons of specified classes or with specified
qualifications or with the licence or permission of specified authorities.
Having
considered the case of Hunt, the learned recorder in the instant case
towards the end of his ruling, at p 23 of the transcript, said:
Applying the
decisions as outlined in those speeches to the facts in this case, in my
judgment on a proper construction of section 102 and section 60 of the Town and
Country Planning Act 1971, section 60(6) provides for what are indeed true
exceptions or exemptions. The subsection says in so many words: ‘Without
prejudice to any other exemptions for which provision may be made by a tree
preservation order’. I am quite satisfied that this is a true exception or
exemption, and unlike the case of Hunt, section 60(6) does not provide
for one of the essential ingredients of the offence. This being an exemption or
exception, the burden of proof, in my judgment, lies on the person who asserts
it, who in this case is the defendant. I am reinforced in that view because
from a practical viewpoint I have no doubt that it is far easier for the owner
of the land, or the person responsible for the cutting down of a tree, to prove
its condition at the time when such action was taken than the local authority.
It is to be noted in particular that section 60(6) provides for a tree becoming
dangerous after an order has been made, and it has been correctly, in my
judgment, submitted to me by Mr Waller that it would place an impossible burden
upon a local authority to check every tree which is to be the subject of a tree
preservation order to determine what its condition is and to continue to check
it after an order has been made to determine whether it has become dangerous. I
accept Mr Waller’s submissions that the defendant responsible for the cutting
down of a tree or otherwise dealing with it, contrary to the terms of the tree
preservation order, is in a unique position to know the true condition of the
tree at the time of his act. So that practical considerations reinforce the
view that on the true construction of this Act the burden of proving the
matters which come within section 60(6) lies upon the defendant, lies upon him
to prove them on the balance of probabilities, and that is my ruling on the
submissions that have been made to me.
With respect,
we simply cannot improve upon those observations,
legal position in this appeal. Despite the persuasive submissions made to the
learned recorder (and recorded in the transcript) by Mr Pearl, and repeated
before this court, we are abundantly satisfied that the learned recorder came
to a correct conclusion. The appeals are dismissed.
The appeals
were dismissed with costs.