Tree preservation order — Tree felled without permission — Exemptions from effect of order — Burden of proof — Whether burden on defendant to prove felling within exception or exemptions
The first
appellant is a company who at all material times was the owner of land in
Berkhamsted subject to a tree preservation order and upon which stood a beech
tree. On October 17 1987, following the gale of the previous day, the beech
tree was felled upon the instructions of the appellants without permission of
the local planning authority, Dacorum District Council. The appellants were
prosecuted and the jury convicted. The appellants appealed contending that the
trial judge erred in his decision on a preliminary ruling as to the burden of
proof and consequently misdirected the jury. The appellants had submitted to
the trial judge that it was for the prosecutor to prove that the exemptions in
section 60(6) of the Town and Country Planning Act 1971 (section 198 of the
Town and Country Planning Act 1990) applied. By section 60(6) a tree preservation
order does not apply to the cutting down, uprooting, topping or lopping of
trees which are dying or dead or have become dangerous or where such works are
necessary to comply with any statutory obligation or for the prevention or
abatement of a nuisance.
It is section
102 (section 210 of the Town and Country Planning Act 1990), and not section
60, of the Town and Country Planning Act 1971 that creates the criminal
offence, which is one of absolute liability. Section 60(6) provides an
exception to the definition of criminal liability and does not create negative
ingredients of the offence in respect of which a burden of proof rests upon the
prosecution: see pp 27C-28B. The ingredients of the offence are: (1) that there
is a tree preservation order; (2) the defendant has cut down the tree or
carried out the other activities mentioned in section 102; and (3) the felling
or other activities were done without permission: see p 27B.
Because
section 60(6) is a true exception or exemption and does not provide for one of
the essential ingredients of the offence, the burden of proof lies on the
person who asserts it, in this case the appellants: see p 29.
From a
practical point of view it is far easier for the landowner to prove the condition
of a tree at the time of felling than for the local planning authority: see p
29D.
to in the judgment
R v Hunt [1987] AC 352; [1986] 3 WLR 1115; [1987] 1 All ER 1;
(1986) 84 Cr App R 163, HL
Appeals
against decision of Mr Recorder Zucker QC and a jury at the St Albans Crown
Court
These were
appeals by Alath Construction Ltd and Grenville Geoffrey Brightman, the
managing director of that company, against their convictions under section 102
of the Town and Country Planning Act 1971 (section 210 of the Town and Country
Planning Act 1990) for breaches of a tree preservation order in the St Albans
Crown Court before Mr Recorder Zucker QC and a jury on January 23 1989.
(instructed by Parrott & Coales, of Aylesbury) appeared for the appellants.
Waller (instructed by Pickworths, of St Albans) appeared for the Crown.
following judgment of the court was delivered.
RUSSELL LJ: 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 ground that the ruling was
reflected in the summing-up and in due course the 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 . . .
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 to be found in 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.
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 speech of Lord Griffiths this passage appears:
I would
summarise the position thus far by saying that Woolmington v DPP
[[1935] AC 1] 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
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, lays 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, which are clear and to the
point and in our judgment accurately analyse the 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.
Appeals
dismissed with costs.
