Conwy County Borough Council, R (on the application of) v Lloyd

Under regulation 6(1)(j) of the Hedgerows Regulations 1997, complete removal of a hedgerow can constitute removal required for its proper management. The provision is not limited to partial cutting, preservation or conservation. Whether complete removal was required for proper management is a question of fact for the court determining the criminal charge. The Regulations permit a landowner to rely on this provision even where the hedgerow was removed without prior notice. The prosecution must meet the applicable evidential or persuasive burden, but the Regulations leave that burden unresolved. An acquittal will stand where the tribunal accepts credible factual and expert evidence supporting proper management and its conclusion was reasonably open to it.

Conwy County Borough Council brought a prosecutor’s appeal by case stated after justices dismissed an information against Robert Lloyd. The charge alleged intentional or reckless removal of a hedgerow contrary to regulations 5(1) and 7 of the Hedgerows Regulations 1997.

Mr Lloyd had removed the hedgerow before the local authority had responded to his notice or the 42-day period had expired. The justices accepted evidence that the hedgerow was worthless, dangerous and incapable of effective management, and acquitted him on the basis that its removal was required for proper management under regulation 6(1)(j). The questions were whether complete removal could fall within that provision and whether the justices’ conclusion was legally unreasonable.

1. Appeal dismissed. Complete removal of 100 linear metres of hedgerow is capable of amounting to proper management within regulation 6(1)(j) of the Hedgerows Regulations 1997.
2. The wording of regulation 6(1)(j) is unambiguous. It refers to the removal of any hedgerow and does not distinguish between partial and total removal. The court could not introduce a preservation or conservation limitation that was absent from the statutory language.
3. Whether total removal was required for proper management was a matter for the justices. The Regulations contemplate that a hedgerow may be removed without notice and that the landowner may subsequently rely on regulation 6(1)(j) at trial.
4. The Regulations do not state whether reliance on regulation 6(1)(j) involves a persuasive burden on the defendant or an evidential burden for the prosecution to rebut. The distinction did not affect the result because the justices were satisfied that the provision’s requirements were met.
5. The justices did not impermissibly assume the local authority’s role. Their finding that the removal was required for proper management answered the relevant issue. The accepted evidence included the defendant’s evidence and expert evidence based on historic familiarity with the hedgerow. The conclusion was reasonably open to the justices.
6. The court refused leave to appeal. It was not persuaded that the matter raised sufficient public importance or that a further appeal had a real prospect of success.

• Magistrates’ Court at Denbigh: On 2 April 2002, the justices acquitted the defendant and dismissed the case.
• High Court (Administrative Court): The prosecutor’s appeal by case stated was dismissed. The justices’ answers were upheld.