R (Grundy & Company Excavations Ltd) v Halton Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Clarke,Mr Justice Jack,LORD JUSTICE CLARKE |
| Judgment Date | 24 February 2003 |
| Neutral Citation | [2003] EWHC 272 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2003 |
| Docket Number | Case No: CO/1324/2002 |
[2003] EWHC 272 (Admin)
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Clarke and
Mr Justice Jack
Case No: CO/1324/2002
The Queen On The Application Of
Charles Garside QC and W Parkinson (instructed by J Keith Park & Co) for the Claimants
The Defendant did not appear and was not represented Peter Birts QC
(instructed by Forestry Commission Legal Department) for the Interested Party
Introduction and Background
This application for judicial review arises out of summonses issued by the Forestry Commission ("the Commission") against the claimants, Grundy and Co Excavations Ltd ("Grundy") and Mr Sean Parry, on 18 April 2001 alleging that they felled 86 trees without the authority of a felling licence issued by the Forestry Commissioners ("the Commissioners") under section 9(1) of the Forestry Act 1967 contrary to section 17 of the same Act, as amended. The offences were alleged to have been committed between 16 August and 12 October 2000 at Sutton Weaver in Cheshire.
We were told by Mr Garside QC on behalf of the claimants that both Grundy and Mr Parry admit that they felled the trees within the meaning of section 9(1) of the Forestry Act 1967, as amended ("the 1967 Act"). Grundy admits that it felled the trees through its employees and Mr Parry, who is employed by Grundy, admits that he directed the felling of the trees.
The claimants admit that they began to fell the trees on 28 September 2000. Their case is that they did so pursuant to an agreement made between Mr Parry on behalf of Grundy and Mr Ford, who was (I think) the owner of the land and was present from time to time while the trees were being felled. The Commission became aware of the situation and intervened. Mr Parry and Mr. Ford were interviewed separately under caution. Mr. Ford's account was that Grundy did not have his permission to fell the trees, although he subsequently pleaded guilty to felling the trees without a licence when the case came on for trial before District Judge Dodd at Halton Magistrates Court on 20 December 2001.
On that day, after Mr Ford had pleaded guilty Mr Grundy and Mr Parry maintained their pleas of not guilty and we were told by Mr Parkinson, who appears with Mr Garside QC on this application and appeared before the district judge on behalf of the claimants, that he invited the district judge to make rulings as to the principles to be applied. The precise scope of the argument is not entirely clear but, as has been observed on behalf of the district judge, it was, perhaps unsurprisingly, much less elaborate than before us. It is, as I understand it common ground that the district judge resolved each of the issues in favour of the prosecution. There are and were essentially two issues, namely burden of proof and mens rea.
The claimants subsequently sought permission to apply for judicial review of that decision. By a letter dated 17 May 2002 the Commission indicated that it would not oppose the application for permission. As I understand it, it did so on the advice of Mr Birts QC in order to clarify the relevant legal principles both for the purposes of this case and for the future. On 29 May 2002 permission to apply for judicial review was granted by Sullivan J, who directed that the application should be considered by a Divisional Court. This is the hearing of that application.
The Statute and Felling Licence
The 1967 Act provides, so far as relevant, as follows:
"9 (1) A felling licence granted by the commissioners shall be required for the felling of growing trees, except in a case where by or under the following provisions of this Part of this Act this subsection is expressed not to apply.
(2) Subsection (1) above does not apply -
(a) to the felling of trees with a diameter not exceeding 8 centimetres or, in the case of coppice or underwood, with a diameter not exceeding 15 centimetres; or
(b) to the felling of fruit trees or trees standing or growing on land comprised in an orchard, garden, churchyard or public open space; or
(c) to the topping or lopping of trees or the trimming or laying of hedges.
(3) Subsection (1) above does not apply to the felling by any person of trees on land in his occupation or occupies by a tenant of his -
(a) where the trees have a diameter not exceeding 10 centimetres and the felling is carried out in order to improve the growth of other trees; or
(b) where the following conditions are satisfied, that is to say –
(i) the aggregate cubic content of the trees which are felled by that person without a licence (exclusive of trees to whose felling subsection (1) above does not apply) does not exceed (5 cubic metres) in any quarter; and
(ii) the aggregate cubic content of the trees so felled which are sold by that person whether before or after the felling (exclusive as aforesaid) does not exceed 2 cubic metres in any quarter, or such larger quantity as the Commissioners may in a particular case allow.
(4) Subsection (1) above does not apply to any felling which
(a) is for the prevention of danger or the prevention or abatement of a nuisance;
(b) is in compliance with any obligation imposed by or under an Act of Parliament, including this Act;
(c) is carried out by, or at the request of an electricity operator, because the tree is or will be in such close proximity to an electric line or electrical plant which is kept installed or is being or is to be installed by the operator as to have the effect mentioned in paragraph 9(1)(a) or (b) of Schedule 4 to the Electricity 1989;
(d) is immediately required for the purpose of carrying out development authorised by planning permission granted or deemed to be granted under the Town and Country Planning Act 1990 or the enactments replaced by that Act, or the Town and Country Planning (Scotland) Act 1997.
(5) Regulations made by the Commissioners under this Part of this Act may modify subsections (2) to (4) as follows, that is to say –
(a) they may provide for additional exceptions from the application of subsection (1) above and may in particular substitute [different diameters or quantities from those specified above].
….
(c) they may restrict or extend the exception in subsection (3)(b) …
and the said subsections shall have effect with any modification made by regulations made under this subsection.
(1) An application for a felling licence may be made to the Commissioners in the prescribed manner by a person having such an estate or interest in the land on which the trees are growing as enables him, with or without the consent of any other person, to fell the trees
….
(1) Anyone who fells a tree without the authority of a felling licence, the case being one to which section (9)(1) of this Act applies so as to require such a licence, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale or twice the sum which appears to the court to be the value of the tree, whichever is the higher.
In this Part of this Act
…
"felling" includes wilfully destroying by any means;
…
"felling licence" means a licence under this Part of this Act authorising the felling of trees; …"
A number of further exceptions have been provided for in regulations made under section 9(5).
It is common ground that the 1967 Act contemplates that felling licences will be in writing and we were shown a form of 'Licence to Fell Growing Trees' which describes the trees to be felled as shown on a map and includes the following:
"You should tell others involved with the felling about the details in this licence – eg by giving a copy of the licence and map to the person felling the trees. …"
The Issues
The Commission's case on burden of proof is that it need only prove that the accused felled the trees and that the legal or persuasive burden is on the accused to prove on the balance of probabilities either that a licence was not necessary because the case falls within one of the exceptions in subsections (2) to (4) of section 9 or in a relevant regulation or that a relevant licence had been granted. As to mens rea, the Commission's case is that it need prove no state of mind or mens rea save that implicit in the meaning of 'fell' or 'felling'.
Before considering the claimants' case as to the relevant principles it is convenient, if possible, to identify the nature of their proposed defence on the facts. It is not, as I understand it, suggested that a felling licence had been granted permitting the felling of the trees. On the contrary, it is common ground that neither Mr Ford nor anyone else had sought or obtained such a licence. Mr Garside told us that he did not have a proof of evidence from Mr Parry or (I think) any other employee or officer of Grundy. However, Mr Parry's possible defence can perhaps be seen from what he said in interview.
That account can be summarised in this way. Mr Parry was employed by Grundy as a surveyor. Grundy's employees cut down the trees on the instructions of Mr Ford. The trees were to be cut and pushed into a valley with a view to making a hard standing. Mr Parry was asked whether he enquired of Mr Ford whether a licence was required to fell the trees. He said no, he was not aware that a licence was required. He said that he had asked about a preservation order and Mr Ford had said that there was none. Mr Ford had also told him, he said, that the planning department, which I understand to mean of the local...
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