England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		16 May 2005

1. MR JUSTICE CRANE: We are considering a case stated by the Barnet Magistrates. The case concerns two convictions of the appellant company on 29 July 2004 for contravening a Tree Preservation Order. Both the convictions relate to 28 May 2003. In the first case the conviction was for lopping the branches of a Cypress tree in Group 10 of a Tree Preservation Order without consent, contrary to section 210(4) of the Town and Country Planning Act 1990. The second conviction was for wilfully destroying a Cypress tree in the same Group 10 without consent, contrary to section 210(1) of the Act.
2. The facts found were as follows:

"5(a) The London Borough of Barnet Council made a Tree Preservation Order on 9 August 1973 including a group consisting of 8 Lawson Cypress at 44 Pine Grove Totteridge.

(b) Correspondence passed between the company and the Council leading to a Notice of Refusal of an application registered on 14 January 2003 to remove 4 Cypress trees. The application had been submitted [supplied by] Mr Royston Simons of JR Charles & Son Limited.

(c) The following work had taken place on tree T2:

(i) Removal of lower branches (measure visually) to a height of (3) metres from the ground: (ii) the exposure of the roots.

(d) The following work had taken place on tree T1:

(i) Severe pollarding leading to (ii) the wilful destruction of the tree.

(e) We could not be certain as to the type of tree T1 & T2 were (described as Lawson Cypress on the Tree Preservation Order dated 9 August 1973 but contended by the appellant company to be Leylandi Cypress).

(f) On 28 May 2003, T1 and T2 were within an area corresponding to that shown by the broken ovoid labelled G10 on the map annexed to the Tree Preservation Order.

(g) We made no finding as to the age of trees T1 and T2."

3. It is to be noted that the case stated in its present form omits, as a result of amendment, from paragraph 5(a) the following final sentence:

"T1 and T2, the subjects of the informations, form part of the group of 8 trees."

4. Looking at the Tree Preservation Order, it relates to the area of Totteridge Lane and the Environs - Part IV. Article 2 of the Tree Preservation Order reads as follows:

"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 and in accordance with the conditions, if any, imposed on such consent, cut down, top, lop, or wilfully destroy or cause or permit the cutting down, topping, lopping or wilful destruction of any tree specified in the First Schedule hereto or comprised in a group of trees or in a woodland therein specified, the position of which trees, groups of trees and woodlands is defined in the manner indicated in the said First Schedule on the map annexed hereto which map shall, for the purpose of such definition as aforesaid, prevail where any ambiguity arises between it and the specification in the said First Schedule."

5. The order in its First Schedule lists 90 individual trees, all described by species and address. There are then two areas of several trees not described individually, and then 64 groups of trees described by species and by address. We are concerned with G10, an entry which reads "Group consisting of 8 Lawson Cypress", the address being given as 44 Pine Grove, Totteridge. The map annexed marks each of the groups as being within a broken black line. It is common ground for the purposes of this case that the prosecution had to prove that each of the two trees was part of the group of eight in 1973.
6. In this case no question arises about substituted trees under section 206 of the 1990 Act. Thus, although the arguments strayed at times, elevating certain matters of fact into matters almost of law, the essential question was and is whether it could be proved that the trees T1 and T2 were among the trees identified in the First Schedule.
7. The case continues by setting out the contentions of the parties. As part of the contentions of the appellant company:

"6(a) The trees T1 and T2 were Leyland Cypress and not Lawson Cypress tress.

(b) As the Tree Preservation Order dated 9 August 1973 referred only to Lawson Cypress at 44 Pine Grove, Totteridge N20, the Tree Protection Order did not protect Leyland Cypress at 44 Pine Grove, Totteridge N20.

(c) There was no ambiguity between the First Schedule of the said Tree Preservation Order and the map annexed thereto.

(d) The justices could not be certain that T1 and T2 were in existence at the time the said Tree Preservation Order was made.

(e) If the court found that T1 and T2 were not in existence at the time the said Tree Preservation Order was made, the Council could rely on section 206 of the Town and Country Planning Act 1990."

8. Paragraph 7 sets out the contentions of the Council:

"(a) The London Borough of Barnet made a Tree Preservation Order on 9 August 1973 and the order could not be challenged in these proceedings.

(b) The statutory exemptions in section 198(6) of the Town and Country Planning Act 1990 and the exemptions specified in the Tree Preservation Order dated 9 August 1973 did not apply, and that the burden of proving any statutory exemption rested on the appellant company.

(c) The trees identified in the First Schedule to the Tree Preservation Order dated 9 August 1973 as G10 sufficiently identified trees T1 and T2.

(d) The trees identified in the informations as T1 and T2 could be identified by species, but in any event even if they could not be identified would by there particular sub-species of Cypress gain the benefit of Article 2 the Tree Preservation Order dated 9 August 1973, which resolves any ambiguity between the First Schedule and the map which identifies the approximate location of groups of protected trees."

9. The authorities to which the magistrates were referred are not of relevance in this hearing. The magistrates' conclusions are set out in paragraphs 9, 10 and 11:

"9. We were of the opinion that the type of tree was irrelevant.

10. We were of the opinion that it was not necessary to reach a finding of fact as to the age of trees T1 and T2.

11. We concluded the trees T1 and T2 were part of the group of trees covered by the Tree Preservation Order Section G10 and that the Tree Preservation Order protected them on 28 May 2003."

10. An important question arises at the outset in the light of the amendment of the case stated. It is the submission of Mr Robb, on behalf of the respondents, that in paragraph 11 of the amended case, the magistrates were clearly making a finding that the two crucial trees were part of the Group G10 in 1973. It is the submission of Mr Rees, on behalf of the appellants, that the removal of that specific finding means that there must at least be some ambiguity in the finding at paragraph 11. For my part, I accept that, if there were such an ambiguity, that would place a real difficulty in the way of the respondents.
11. The amendment came about because of an application by the appellant company to Hughes J, resulting in an order for the amendment of the case. The application was opposed. It was based on reasons delivered by the magistrates at the time. For my part, I accept that, in paragraph 11 of the case, the magistrates are in fact making a finding that T1 and T2 were in existence and were part of the group in 1973, despite the removal of the particular finding in paragraph 5(a). The contentions of both parties, which I have set out, makes it clear that both parties were accepting that the conviction could only take place if the two trees had been in existence and covered by the order in 1973.
12. I then address questions 1 and 4: whether the type of tree was crucial. It is the submission of Mr Rees that if there was a group of eight trees in G10 in 1973, seven correctly identified as Leyland Cypress, but one wrongly identified, the one wrongly identified would not be covered.
13. In my judgment, the question is whether, if one had looked at the scene immediately after the making of the Tree Preservation Order in 1973, it would have been apparent which trees were covered. In my judgment, it would not matter that one or two or more of the group of eight were not of the description set out. The consequence is that, although the species of the two trees T1 and T2 is of relevance, it is of relevance only for evidential purposes, namely in a consideration of whether those particular trees were the same as two of those in existence and covered by the order in 1973.
14. The next question is question 2. Were the justices entitled to convict the appellant company without making a finding of the age of the trees T1 and T2? I interpret that question as relating to the need for finding a specific age for the two trees. If the justices did reach the conclusion that the two trees were in existence and covered by the order in 1973, they were finding quite plainly, at the very least, that the trees were 30 years old. In my view, therefore, the justices were entitled to convict without making a finding as to the age of the tree, subject to that qualification.
15. As to question 4, I consider that the justices were correct in their interpretation. The crucial question is question 3. Were the justices entitled to conclude that trees T1 and T2 form part of a group covered by the Tree Preservation Order? The facts found are not extensive, and to consider question 3 it would have been desirable for the case to have set out the evidence which led to that conclusion, particularly since the magistrates made no specific finding as to species or age. For example, there is no evidence within the case of what trees of what type were in the area G10 in May 2003, apart from the two. It appears there had been some evidence on such matters.
16. However, it is clear that, at the time of the Tree Preservation Order, there were eight Cypress trees at G10, as the magistrates must have found. It is not suggested in the case that there was any evidence of additional trees at that time or later, and it is to be noted that the appellants had been refused an application to remove four trees. Clearly the magistrates must have considered that four had disappeared. But four remained at that time and two remained at the time of the charges.
17. In my judgment, the magistrates were entitled to come to those conclusions on the basis of the facts set out in paragraph 5 of the case stated. Therefore, I would answer the questions specifically as follows. Question 1: yes, subject to the qualification that a finding of the type of tree could have been relevant for evidential purposes. As to question 2, my answer would be yes, provided it is understood that they had to decide that the two particular trees were in existence and covered by the order in 1973. As to question 3, my answer is yes. As to question 4, I would answer that question yes. For those reasons, I would uphold the convictions and the decisions of the magistrates.
18. LORD JUSTICE ROSE: I agree. This case has not been entirely free from difficulty. The justices were treated to considerable evidence and argument as to the age of the trees T1 and T2. The crucial part of the case stated, as indicated by my Lord is, first, paragraph 11:

"We concluded the trees T1 and T2 were part of the group of trees covered by the Tree Preservation Order Section G10 and that the Tree Preservation Order protected them on 28 May 2003."

19. Then the questions in paragraph 12:

"(ii) were the Justices entitled to convict the appellant company without making a finding of the age of tree T1 and T2;

(iii) were the Justices entitled to conclude that trees T1 and T2 formed part of a group covered by the Tree Preservation Order."

20. When these paragraphs are read together, it seems to me that the only fair understanding of the case stated is that, although the justices made no finding as to the precise age of the trees, they did conclude that T1 and T2 had been within the group covered by the Tree Preservation Order made in 1973. That was a finding they were entitled to make, in my judgment, without reaching any conclusion as to the precise age of the two trees. Accordingly, and for the reasons given by my Lord, the questions posed in the case stated will be answered as he has indicated and the appeal will be dismissed.
21. MR ROBB: My Lords, the question of costs arises. The Council makes an application for costs as an interested party in these proceedings because clearly the case stated was against the magistrates. You have to consider, first, whether the Council were entitled to appear today as an interested party. If you conclude that we were justified in doing so, our costs should be against the applicants today, and I have two sets of costs to deal with. The first relates to the hearing on 9 March 2005 where the case stated was amended. I have a schedule of those costs. On that day costs of the cause for the Council were £3,120.10, and I am going to hand a schedule of those costs to your Lordships. For today's costs the total is £8,068.05. That leaves a grand total of £11,189.05, and these costs were served on the company last week.
22. LORD JUSTICE ROSE: They have not been provided to the court until now.
23. MR ROBB: They have not been provided to the court until now. We need to get one of those from each file back apparently. So there is more than two there.
24. LORD JUSTICE ROSE: More than two bills of costs or more than two --
25. MR ROBB: Two sets of costs related to different days, but there is more than two of each. So we need one of each back. Your Lordships have been given one pile each, I am so sorry. Your Lordships have been given two different piles. One is for 9 March; the other is for today's date. So, my Lords, you will see the schedule of those costs. Forgive me, could I ask the usher to hand me back one version of each of those costs?
26. LORD JUSTICE ROSE: We can hand them back if we descend into detail. Mr Rees, so far as the principle is concerned, can you resist it?
27. MR REES: No. I simply raise this point, as my learned friend says we appear as interested parties, if you like, because the case stated is against the Magistrates' Court. I know that in the case of Carter, which was included in the material provided by the appellant, in that case, although it was the appellant who was successful, the costs were awarded not against the respondent authority, as would be the usual course under Part 44 of the Rules, but instead out of central funds. Given that the case stated is against the magistrates, I would ask your Lordship to consider making the award for the respondent's costs out of central funds.
28. LORD JUSTICE ROSE: Who were you seeking an order for costs from if you had won?
29. MR REES: We did serve our schedule of costs against the local borough of Barnet on Friday. However, I had a conservation with Mr Robb --
30. LORD JUSTICE ROSE: I am not much interested in your out of court conversations with Mr Robb. The fact of the matter is that the schedule that you served sought costs against the local authority who now seek costs against you.
31. MR REES: And I was going to raise with your Lordships the fact that in Carter, the order had been made out of central funds.
32. LORD JUSTICE ROSE: It depends on the circumstances. I do not know what happened in Carter, but it depends on the circumstances of the particular case, does it not?
33. MR REES: Indeed, and as far as the appellant's position would have been concerned, whether the costs came from central funds or not, he would have been successful and would have received his costs from whichever source. I raise that with you, my Lord, since the application has come about because of a case stated by the magistrates and they were a party in this matter.
34. LORD JUSTICE ROSE: But there is no question of making an order against the justices. They did not appear and they normally do not. If they do, then they are at risk of an order for costs. If they do not appear, they are not, generally speaking, at risk of an order for costs. The same argument would apply in relation to central funds.
35. MR REES: I make that submission, my Lord.
36. LORD JUSTICE ROSE: That is the principle. What do you say about quantum?
37. MR REES: In relation to quantity, my learned friend has supplied a schedule of costs in relation to two dates. In relation to 16 May, I do not have any representations. In relation to the application on 9 March 2005, that was an application made by the appellant that was successful and was contested despite the respondent having been given notice. I would ask in relation to that hearing, given that costs were reserved in that hearing until the final outcome, for allowance to be made on the basis that the appellant was successful in what was an opposed application. In a general sense, I am instructed that in relation to the hourly rate that is claimed by the case holder --
38. LORD JUSTICE ROSE: I can tell you now we are not getting into the detail of this. The court has not been provided by anybody with any detail until today. So there is no question of us embarking on hourly rates or anything remotely approaching that. We are going to address the principle.
39. MR REES: Very well, my Lord. I have made representations in relation to the principle and to the fact that, on the 9 March, that was a successful application made by the appellant that was opposed.
40. LORD JUSTICE ROSE: Thank you. Do you want to say anything else about the successful application to amend the case on 9 March?
41. MR ROBB: My Lord, costs were reserved on that date.
42. LORD JUSTICE ROSE: I know they were.
43. MR ROBB: The application was successful in part. Some things were amended and in other respects the Council's position was upheld by the judge. That is why costs were reserved for the final outcome. The reason he reserved costs is, in my submission, he decided that the outcome was the important thing, and the Council's case has been upheld.
44. LORD JUSTICE ROSE: So far as the application on 9 March to amend the case stated is concerned, we shall make no order as to the costs of that application. So far as the costs of today are concerned, the appellants will pay the respondents' costs, to be assessed failing agreement.