| ENVIRONMENT — Protection — Felling trees without licence — Whether land “garden” — Forestry Act 1967 ss 9, 17
Rockall v Department for Environment, Food and Rural Affairs; [2008] WLR (D) 227
DC: Moses LJ and Blake J: 3 July 2008
It was not possible for the court to provide an all-embracing test of what constituted a “garden” in the context of the Forestry Act 1967. To attempt to do so might impede the flexibility inherent in the statute by imposing too rigorous a straitjacket. In determining whether or not land constituted a garden, it was important to have regard to use of the land by the occupier as well as its appearance and condition.
The Divisional Court of the Queen’s Bench Division so held when allowing an appeal by way of case stated by the defendant, Michael John Rockall, against the decision of the Crown Court at Ipswich on 10 August 2007 dismissing his appeal against a conviction for felling growing alder trees on land known as Deer Park Lodge, Woolverstone, Ipswich, without the authority of a felling licence issued by the Forestry Commission under s 9(1) of the 1967 Act, contrary to s 17(1) of the Act. Under previous ownership the land, originally used as a garden, had suffered 30 years of disuse and, by the time the defendant bought it with the intention of restoring the garden, had become heavily wooded with self-set alders.
MOSES LJ said that it was important to note that, before felling the trees, the defendant, whom the Crown Court had accepted had genuinely intended to improve the land, had made contact with the Forestry Commission to find out what permission or licence he needed. It was clear from the guidance pamphlet which he received in reply that if he was felling trees in a garden he did not require a licence, and he had proceeded on that basis only to receive a summons in February 2006. Under s 9 of the 1967 Act, the defendant’s guilt depended on whether or not the land involved was covered by the exception in s 9(2)(b) (“Subsection (1) does not apply to the felling of … trees growing on land comprised in an orchard, garden, churchyard or public open space”). In McInerney v Portland Port Ltd [2001] 1 PLR 104 Latham LJ had held that in order to establish whether a piece of land was a garden it was important to look at the use of the land as well as its appearance and character. In that case, the garden, previously part of HMS Osprey used by the Wrens, had ceased to be a garden not only because it was overgrown, but because it was no longer used by anybody. This case was the converse. The whole purpose of the defendant felling the trees had been to recreate and use the garden, as he had made clear to the Forestry Commission. Mere assumption of intention might not suffice, were it not for the facts and circumstances in the present case (unlike McInerney’s case) pointed all one way. The fact that previous occupiers had for different reasons been unable to keep the garden maintained was insufficient to establish that it had ceased to be a garden. It was important to look at the relationship between human occupier and space. The Crown Court had fallen into error in failing to give sufficient weight to the genuineness of the defendant’s intention to restore and use the garden.
BLAKE J agreed.
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Appearances: Dominic Grieve QC and David Lamming (Gotelee & Goldsmith, Ipswich) for the defendant; Tony Payne and Priya Khanna (Legal Division, Department for Environment, Food and Rural Affairs) for the prosecutor.
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