JR Charles & Son Ltd. v Barnet London Borough Council

A tree preservation order protects trees identified by the objective meaning of the order, viewed in the context existing immediately after it was made. A mismatch between the recorded species and the actual species does not necessarily invalidate protection, although species may be relevant evidence when identifying the trees. A precise finding of the trees’ age is unnecessary where the court finds that the particular trees existed and were protected when the order was made. The magistrates may draw that conclusion from the evidence and surrounding circumstances. Convictions for unauthorised lopping and wilful destruction were therefore upheld.

The claimant company appealed by way of case stated against two convictions by Barnet Magistrates’ Court on 29 July 2004. The convictions concerned unauthorised lopping and wilful destruction of two Cypress trees within Group G10 of a 1973 Tree Preservation Order, contrary to sections 210(4) and 210(1) of the Town and Country Planning Act 1990.

The company argued that the trees were Leyland Cypress rather than the Lawson Cypress described in the order, and that the magistrates had not found their age or established that they existed when the order was made. The central issues were whether the trees were protected members of Group G10 and whether the magistrates were entitled to convict without making a precise finding as to their age.

1. Identification under the order. The essential question was whether T1 and T2 could be proved to be among the trees identified in the First Schedule to the Tree Preservation Order. Under Article 2 of the Tree Preservation Order dated 9 August 1973, the map prevailed where ambiguity arose between it and the schedule.
2. Species. The relevant question was whether, immediately after the order was made in 1973, it would have been apparent which trees were covered. It was immaterial that one or more trees in the group did not correspond exactly with the species description. The species of T1 and T2 remained relevant as evidence of whether they were the same trees as those protected in 1973.
3. Age. The magistrates did not need to determine the precise age of either tree. Their finding that the particular trees existed and were covered by the order in 1973 necessarily established that they were at least 30 years old when the offences occurred.
4. Group membership and disposition. Although the case stated contained limited factual detail, the magistrates were entitled to infer that the two trees formed part of the protected group. The convictions and decisions of the magistrates were upheld, and the questions in the case stated were answered affirmatively, subject to the evidential qualification concerning species.
5. Costs. No order was made as to the costs of the 9 March 2005 amendment application. The claimant was ordered to pay the Council’s costs of the hearing on 16 May 2005, to be assessed if not agreed.

• High Court (Administrative Court): On a case stated from Barnet Magistrates’ Court, the Divisional Court dismissed the appeal, answered the questions affirmatively subject to the stated qualification, and upheld the convictions.