West Law Report


Posted in Westlaw Reports by mrkooenglish on July 16, 2008

Last Updated: 3:13PM BST 09/07/2008
Divisional Court

Moses LJ, Blake J

July 3, 2008

Forestry – Gardens – Licences – Trees – Tree felling licences – Garden exemptions – s. 9(2)(b) Forestry Act 1967


The appellant (R) appealed by way of case stated against a decision of a Crown Court to dismiss R’s appeal against his conviction for felling trees on an area of land without a licence, contrary to the Forestry Act 1967 s. 17(1). A couple had owned the land in question and an adjoining area of land upon which there was a lodge. They used the former land as a garden and later transferred it to their daughter (D). The couple then sold the adjoining land to an individual (B). D moved to New Zealand, but retained her land and allowed B to have use of it. B, however, had neither the time nor the resources to maintain the garden and it fell into disuse. Thirty years later, R purchased the adjoining land from B, and D’s land, which had become rather heavily wooded and overgrown, from D. R then contacted the Forestry Commission to find out what permission or licence he might require to clear D’s former land of trees so that he could use it as a garden.

The commission’s response was to send R a publication that gave details of the law surrounding tree felling. Included in those details was s. 9(2)(b) of the Act, which provided that a licence was not required in respect of trees standing in, among other things, a garden. Having viewed the guidance, R proceeded to fell the trees. However, the commission then issued a summons alleging an offence under s. 17(1) of the Act. R was convicted, and his appeal was dismissed. The court accepted that R’s intention to reinstate the land as a garden was genuine, but held that over the 30 years that land had ceased to be a garden as a result of its falling into disuse, and it was not, therefore, a garden for the purposes of s. 9(2)(b) of the Act.


Whether the court was wrong to find that R could not avail himself of the exemption under s. 9(2)(b) of the Act.

HELD (appeal allowed)

The anxiety of the commission in cases such as the instant one was that someone could fell trees and avoid the need for a licence by merely asserting that they did so because they intended to create and make use of a garden. The question depended on the facts and circumstances of the case. A mere assertion of intention might well be insufficient to satisfy the burden on a defendant to show that he did not require a licence. In the instant case, however, the facts and circumstances all went to establish what R had asserted, namely that cutting down the trees was part of the fulfilment of his intention to restore that which had previously been a garden.

As to whether the court was entitled to conclude that the land had fallen into such disuse as to cease to be a garden, it was unnecessary to resolve that question. However, it was doubtful that the mere fact that B had had no time or resources to maintain the garden, and that D had gone abroad, meant that the land in question ceased to be a garden, McInerney v Portland Port Ltd [2001] 1 PLR 104 DC distinguished. R’s intentions, coupled with the land’s history, compelled the conclusion that the court was wrong to describe the land as not comprising a garden by reason of falling into disrepair. The error of the court was in failing to give sufficient weight to the genuineness of R’s intentions and the history of the land. Thus, the court was wrong to find that R could not avail himself of the exemption under s. 9(2)(b) of the Act.

Dominic Grieve QC and David Lamming (instructed by Gotelee & Goldsmith, Ipswich) for the appellant. Tom Payne and Priya Khanna (instructed by DEFRA) for the respondent.


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