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 WC2A 2LL
		3 July 2008

1. LORD JUSTICE MOSES: This is an appeal by way of case stated against a decision of the Ipswich Crown Court on 29 August 2007. By that decision the court dismissed the appellant's appeal against a conviction for an offence of felling growing trees without a licence contrary to section 17(1) of the Forestry Act 1967. If the land on which he felled those trees was a garden, he was not guilty. If, however, it was not a garden, then he required a licence and he was guilty. Anyone hoping that this court will provide any all-embracing test of whether land is a garden or not is doomed to disappointment. Indeed, the very concept of a garden, which is undefined in the Act, emphasises the danger of any court seeking to give a definitive definition of a garden, lest the very factual flexibility inherent within the statute should be impeded by too rigorous a straitjacket.
2. The facts as found by the Crown Court in its judgment, which is annexed to the case stated, disclose that the land in question was known as Deer Park Lodge. It had adjoining to it a large area of about one and a third acres on which were situated the trees which Mr Rockall undoubtedly cut down in July 2005.
3. Deer Park Lodge was bought by a Mr and Mrs Perkins in January 1961. Further land was bought in November 1962, on which grew the trees that were subsequently cut down. The land on which the trees were cut down was transferred, by Mr and Mrs Perkins, to their daughter, a Mrs Goldman. We have plans showing a large area; the land on which the trees which were felled grew was coloured in pink. It is important to note the whole of the land was enclosed with fencing, but the two areas, one the land on which the trees grew, and other land which had been in the ownership of Mr and Mrs Perkins, was never divided by way of any fence or railings.
4. On 11 December 1973, the house to which the land adjoined was purchased by a Mr Blackwell. The land which he purchased included a garden, but did not include the land surrendered to the Perkins' daughter, Mrs Goldman. Mrs Goldman had gone to live in New Zealand, but wished to retain the land which had not been purchased by Mr Blackwell for what was described by the judge in his judgment as sentimental reasons, and possibly with a view to returning to camp upon it. But the important findings are that until Mr Blackwell purchased part of the Perkins' land, the whole of the land was used by them as a garden. It was a garden, as the judge recalls, which included grass and woodland, but, as he acknowledged, did not cease to be the Perkins' garden which they enjoyed in association with the house they owned, Deer Park Lodge.
5. Mrs Goldman allowed Mr Blackwell to have the use of her land, shown as pink on the plan, an area of about one and a third acres on which the trees were subsequently felled. But as the judgment and the case stated record, he had neither the time nor the expense to look after it in the same way as he looked after land much closer to Deer Park Lodge. There was a moment when it fell into such disuse that a witness, Mrs Bowman, on returning to visit at about the time Mr Blackwell was considering selling Deer park Lodge, was appalled by its state. You could not, she said, get through it.
6. Over a period of 30 years between 1973 and 2003, the court found as a fact that the area had become relatively heavily wooded, and there had grown on that land over that period of 30 years what are described as self-set alders, in other words they had seeded themselves.
7. Mr Rockall, the defendant to the original proceedings, bought Deer Park Lodge from Mr Blackwell on 24 March 2004. Nine months later he purchased all the adjoining land, that had hitherto been held by Mrs Goldman, the daughter of the Perkinses.
8. Seven months later, in July 2005, he cut down the alders which had self-set. It is important to record at this stage of the narrative that before doing so he had contacted the Forestry Commission at Stanton Downham to find out, as he later recorded in a letter dated 17 August 2005, what permissions or licences he needed, as he put it, "to clear my garden of the self-set alders to enable the re-planting of the garden to the original parkland design".
9. The response from the Commission was to send a copy of the publication "Tree Felling - Getting Permission". That recorded the state of the law as set out in the relevant statutory regime. By section 9 of the Forestry Act 1967, it is a requirement that a felling licence be granted for the felling of what are described as "growing trees". Within section 9, there are a number of exceptions provided relating to the volume of the trees, but for the purposes of this appeal, what is important to note is that by sub-section (2) the requirement of a licence within section 9(1) does not apply-

"to the felling of fruit trees or trees standing or growing on land comprised in an orchard, garden, churchyard or public open space... " (s9(2)(b))

10. Mr Rockall proceeded to cut down the self-setting alders in July 2005, having received clear notification in the form of that guidance booklet which made it clear that if he was felling trees in a garden or on land which comprises a garden, he did not require a licence.
11. However, having felled those trees, the Forestry Commission proceeded to issue a summons in February 2006. The crime which he was alleged to have committed was that contained in section 17(1), namely:

"Anyone who fells a tree without the authority of a felling licence, the case being one in which section 9(1) of this Act applies so as to require such a licence, shall be guilty of an offence... "

12. There is authority from courts of co-ordinate jurisdiction, as well as authority from that great and good judge, HHJ Gower QC in Forestry Commission v Grace [1992] 1 EGLR 28, that the burden is upon the defendant to establish that the land on which he felled trees was such as not to require a licence. In particular, there is authority of this court in R(Grundy & Co Excavations Limited) v Halton Division Magistrates' Court [2003] 1 PLR 89, [2003] EWHC 272 (Admin) that the burden lies upon the defendant. I, for my part, would wish to express no view as to whether that is correct and whether it is right to follow that authority, which is persuasive but not binding. There was no ground of appeal advanced by Mr Grieve QC to suggest that that was wrong. Sensibly he may have taken the view that he can win the case without such an interesting and time consuming legal argument. I wish merely to express some concern as to whether that view is correct.
13. I shall proceed on the basis that the burden was upon Mr Rockall to establish that the land previously owned by Mrs Goldman and her parents (the Perkinses) was land comprised in a garden within the meaning of section 9(2)(b). As I have indicated, the Crown Court found that it was not. The basis upon which the court found that it was not was the disuse into which it had fallen because Mr Blackwell did not have the resources and perhaps did not feel he needed to enjoy the land as a garden. Mrs Goldman was in New Zealand and unable to do. In those circumstances, the court relied upon the fact that it had become "relatively" heavily wooded and occasionally boggy with, amongst other things, the self-set alders in that area. In those circumstances, the court concluded that over that 30 years it had ceased to be a garden, and by the time the trees were cut down, it was, as the court said, nobody's garden.
14. The court appears to have accepted that Mr Rockall's intention to reinstate the land as a garden was genuine. It says in the judgment:

"In his letter of 17 August indeed he refers to restoring and reinstating the grounds to their former parkland condition. We have no doubt that the work he engaged upon, and in our judgment genuinely intended to do, would improve his property, certainly in his view and perhaps in the view of many. He sought, we are sure, to do the right thing, making enquiry before commencing felling of any timber." (my emphasis)

But the court continued:

"If it [the pink land] ever was under the ownership of the Perkins family [garden land], it certainly wasn't so enjoyed by Mr Blackwell and was no garden when Mr Rockall acquired it. We accept as I have said what was his intention, we believe that it was genuine, but this was not garden land and hadn't been for many years."

15. This appeal turns on whether the Crown Court was entitled to reach that view. The court was guided by the decision of this court in McInerney v Portland Port Limited [2001] 1 PLR 104. That case is authority for the principle that in order to identify whether land comprises of garden, it is necessary not only to look at its appearance and its characteristics, but also to its use. Latham LJ, in giving judgment, referred to the definition of garden in the Oxford English Dictionary, but described that definition as deficient in detail. I am not surprised. The dictionary to which he referred described an enclosed piece of ground devoted to the cultivation of flowers, fruit or vegetables. Christopher Lloyd would be turning in his grave at such a description, and Beth Chatto would regard that as wholly inadequate given the current fashion for wild flower gardens and meadows.
16. The reality is that no description of land will conclusively establish whether that land is a garden for this important reason: that it is also incumbent upon the fact-finder, determining a controversy as to whether land comprises a garden or not, to consider its use. As Blake J said arguendo, it is important to look at the relationship between the human occupier of the land and the space; I understand him to mean that it is necessary to look at how the particular occupier in question used the land.
17. McInerney highlights the importance of examination of the use of the land, as the facts reveal. The land in question on which trees had been cut down without a licence was known as the Wren's Garden. Lest anybody should think that that referred to Troglodytes troglodytes, the name referred to a garden used by Wrens as members of Her Majesty's Navy, occupying HMS Osprey in Portland. The Navy had gone, the Wrens were no longer there, and the land had fallen into disuse over a substantial period of two and a half years. Latham LJ concluded that, by virtue of that disuse, there being nobody there to enjoy it, it had ceased to be a garden. He referred not only to the fact that it was overgrown, but that it was no longer used by anybody at all. In those circumstances, that lack of use by anyone determined the issue. The lack of use showed that it was not open to the magistrates, who had acquitted the defendant, to reach the conclusion that by virtue of the fact that it had been a garden, it continued to be a garden at the time the trees were felled. Importantly, Latham LJ continued, ([2001] 1 PLR at 107A-B):

"13. I am fortified in that view by the wording of Section 9 of the Act itself. This provision is intended to obviate the need for licences where the land has a particular use.

14. This suggests that felling which does not need a licence should be in some way ancillary to the use of the land in question as an orchard, garden, churchyard or public open space. This would give some purpose and content to the provision with which we are concerned today. The felling in question was not connected in any way with the use of land as a garden."

18. This case is the converse, and recognised in his helpful submissions by Mr Payne to be so. Mr Rockall's intention was found to be an intention to use the land as a garden. That was the whole purpose for which he wanted to cut down the self-set alders and, as he was subsequently to say, to replace them with beech and oak. It was, in other words, as he had told the Commission and confirmed in his letter after cutting down the trees, for the very purpose of recreating that which had been enjoyed by Mr and Mrs Perkins, and no doubt by their daughter when she was younger before she went to New Zealand.
19. What then follows? The anxiety, which I well understand, of the Forestry Commission is that someone may chop down trees and merely avoid the need to obtain a licence and criminal prosecution by the simple assertion: "I did so because I intended to create a garden and I intended to use the garden". The question of whether that should be rejected will depend upon all the facts and circumstances of the case. A mere assertion of intention may well be insufficient to establish and satisfy the burden upon a defendant to show that he did not need a licence, or if the burden is the other way, insufficient as a defence to the prosecution's case. But in this case, the facts and circumstances all went one way: to establish what Mr Rockall asserted, namely that the cutting down of the trees was merely part of his fulfillment of his intention to restore that which undoubtedly had been a garden 30 years before.
20. Mr Payne contends that the court was entitled to find that the garden had been so disused as to cease to be a garden. I have some doubts about that. The Perkinses, as was found as a fact, had used all of the land, including the land on which the alders had been cut down, as a garden. Did it then cease to be a garden merely because the owner had gone abroad and the man, Mr Blackwell, who had been allowed to use the land had neither the resources or intention to keep it well maintained? I express doubts as to whether that would amount to sufficient disuse to cease to be a garden. After all, there will be many of us who inherit land, who, for a considerable period, will be unable to maintain it in the condition to which our forefathers had kept it, either because there simply is not time or insufficient money. There are many areas of land in the back streets of north London, where, bearing in mind the use to which the neighbour's animals put it, are hardly worth bothering to cultivate, but the idea that those areas cease to be gardens is absurd. I therefore express considerable doubts as to whether the mere fact that Mr Blackwell had not had the resources or the need to use that land as a garden, and the fact that Mrs Goldman had gone abroad, meant that that which had been a garden ceased to be one. After all, the position is wholly different from the facts as found in McInerney, where the land had only been land used for the enjoyment of Naval personal, and the Navy had left. Of course, the facts were for the Crown Court. But they are quite different from McInerney.
21. I draw attention to that difference to point out that the context of Mr Rockall's felling was by no means so stark an appearance of disuse as was apparent in McInerney. In the instant appeal, before he ever did anything to those trees, he made clear his intention to the Forestry Commission, responsibly notified them, and had had -- and this is not meant as any criticism of officials who no doubt are very hard-pressed -- no particular personal contact with anybody from the Forestry Commission such as to suggest he would receive a summons in a criminal court were he to cut them down. He did cut them down, but as was found as a fact, with the intention of recreating that which had undoubtedly been the position before. That intention, as found as a fact, coupled with the history of the land, compels me to the conclusion that the court was wrong to describe the land as not being a garden by reason of the disrepair and disuse into which it had fallen during the 30 years before.
22. As I have indicated, there may well be cases where the mere assertion of an intention will not be enough, but in this case, in my judgment, it plainly was, and it was not open to a court to come to a contrary view. The history of the land, coupled with the responsible behaviour of Mr Rockall, who wished to use all the land as his garden, drives me to that conclusion.
23. I reject the suggestion that it was premature to cut down the trees because the garden was not yet established. There is nothing in the statutory provisions which dictates that a garden which has fallen into disuse cannot become a garden again until it is established. I readily accept that if all that is asserted is a mere intention, and that there is nothing else in the circumstances to support the genuineness of that intention, he who cuts down trees which fall within the provisions of section 9 without a licence may face a criminal prosecution and indeed a conviction. But the facts of this case are, in my judgment, miles away from that.
24. The error of the court was, in my view, in failing to give sufficient weight to the genuineness of the intention expressed by Mr Rockall, coupled with his behaviour in the context of the history of how and why the garden ceased to be used; this was in stark distinction to the disappearance of the Navy in McInerney.
25. In those circumstances, in relation to the questions asked, in my judgment the court was not correct to find that the appellant could not avail himself of the garden defence pursuant to the Forestry Act 1967, and I would allow the appeal.
26. MR JUSTICE BLAKE: I agree.
27. MR GRIEVE: My Lord, I would ask for costs, both here and below. In the light of your Lordship's remarks, I wonder whether it would be proper to ask for costs against the Forestry Commission?
28. LORD JUSTICE MOSES: Are you or are you not?
29. MR GRIEVE: I am.
30. LORD JUSTICE MOSES: Yes. Can we deal with it in two separate stages? First of all, what about costs out of central funds?
31. MR PAYNE: My Lord, I respectfully suggest that is the appropriate course. This is a conviction of the Crown Court, and as such they should come from central funds.
32. LORD JUSTICE MOSES: What about the behaviour of the Forestry Commission? Here he contacted them. I do not know whether he wrote or telephoned, but let us assume he only telephoned, why before they summonsed him, why when he said this is what he was going to do, did they not say: "Hang on; don't do anything until we have managed to send somebody around. There can't be any hurry. They had been there some time. Let's arrange an appointment and go and look and talk about it?" Why did they not do that? It may have led into a disagreement and it could have ended up in court, but they did not do that. The next thing that happens is a brochure and then a summons.
33. MR PAYNE: My Lord, I think for the simple reason that although they may seem somewhat exotic --
34. LORD JUSTICE MOSES: What?
35. MR PAYNE: Felling licences.
36. LORD JUSTICE MOSES: Yes.
37. MR PAYNE: The approach taken by the authorities is that it is a licensing regime like any other, and it is incumbent upon the person who needs a licence to find out whether they do in fact or not.
38. LORD JUSTICE MOSES: Is that what the brochure says: "Do be careful; if there may be doubt as to whether this is a garden you'd be on the safe side getting a licence"; does the brochure say that?
39. MR PAYNE: My Lord, I regret I do not know.
40. LORD JUSTICE MOSES: It jolly well ought to. If that is your people's view, then it is no good just sending out a brochure which sets out section 9. After all, it has taken the greatest brains of this country, Latham LJ and Blake J, to discern what the result is. Why does it not say: "Err on the side of caution; get yourself a licence?" What does it cost? Probably not very expensive.
41. MR PAYNE: It may very well say that. I regret I do not know.
42. LORD JUSTICE MOSES: I would like to know whether it does or not.
43. MR PAYNE: One thing can said without doubt, if Mr Rockall had pushed the matter, he might have got a clearer answer.
44. LORD JUSTICE MOSES: Why should he?
45. MR GRIEVE: My Lord, I do have here the actual brochure.
46. LORD JUSTICE MOSES: Thank you very much.
47. MR GRIEVE: Which I can hand up. I have just been told this part may have changed. I think it has not changed, I apologise. It may be later than --
48. LORD JUSTICE MOSES: Let us have a look.
49. MR GRIEVE: I also say that Mr Rockall did give evidence.
50. LORD JUSTICE MOSES: Have you finished, Mr Payne?
51. MR PAYNE: On the matter of costs, no.
52. LORD JUSTICE MOSES: Go on.
53. MR PAYNE: My Lord, I have not seen a schedule for costs.
54. LORD JUSTICE MOSES: I would order taxation if they cannot be agreed. I would not make a summary today.
55. MR PAYNE: My Lord, I am grateful for that.
56. LORD JUSTICE MOSES: You say: one has to be a bit careful. Here they are trying to do their public duty, and they have won so far.
57. MR PAYNE: My Lord, yes. These events are some years old. I do not accept, my Lord, the fault entirely lies on one side here.
58. LORD JUSTICE MOSES: It does say here: "Contact your local Forestry Commission office if you are not certain whether these exemptions apply".
59. MR PAYNE: My Lord, yes.
60. LORD JUSTICE MOSES: So here he has the brochure, he has this, he really ought to have got in touch with them again?
61. MR PAYNE: My Lord, yes, or taken legal advice.
62. LORD JUSTICE MOSES: All he would have got was Mr Green, and that costs a fortune, I would have thought.
63. MR PAYNE: It was an option open to him, and one which, in the circumstances, he would have been well advised to have taken.
64. LORD JUSTICE MOSES: Yes. Thank you very much. The argument really is he ought to have got in touch with them again.
65. MR GRIEVE: At page 61 of the transcript he did give evidence at court as to what attempts he had made. I do not think it has ever been disputed in any way.
66. LORD JUSTICE MOSES: Yes.
67. MR PAYNE:

"Q. Did you make contact with anybody at the Forestry Commission before instructing a contractor to fell those trees?

A. Yes, several attempts in fact. I was given a telephone number initially somewhere near Woodbridge, I can't remember exactly who it was and I tried that on several occasions and got no result. I eventually got another number, somewhere near Fetford[sic] and I telephoned there and spoke to somebody myself on at least two occasions and they said they would send somebody out but nobody ever appeared and so eventually we wrote and in response to that letter we got the pamphlet which you showed earlier on today."

68. LORD JUSTICE MOSES: Yes, thank you very much.

(Short Adjournment)

69. LORD JUSTICE MOSES: No, we are not going to make an order for costs against the Forestry Commission. We will order defence costs out of central funds here and below.
70. MR GRIEVE: I am grateful, my Lord.
71. LORD JUSTICE MOSES: You will not get your amendment costs. I presume you already had an order against you. You know there was all that skirmishing about amendments.
72. MR GRIEVE: I fear the skirmishing -- I cannot seek costs over the skirmishing. The skirmishing was a separate point.
73. LORD JUSTICE MOSES: Quite. Very well then. Thank you all very much.
74. MR GRIEVE: The Magistrates' Court and the Crown Court.
75. LORD JUSTICE MOSES: Yes, that is right.
76. MR GRIEVE: I am obliged.