Rockall v Department for Environment, Food and Rural Affairs (Rev 1)

Whether land comprises a garden under the Forestry Act 1967 depends on all the circumstances. Appearance and physical characteristics matter, but the fact-finder must also examine the land’s use and the relationship between the occupier and the land. No universal definition or conclusive test is appropriate.

A genuine intention to restore disused land as a garden may establish the exemption from tree-felling licensing requirements where it is supported by the land’s history and the person’s conduct. Mere assertion of intention will not necessarily suffice. A garden may become a garden again before restoration is complete.

The appellant appealed by way of case stated against his conviction by Ipswich Crown Court on 29 August 2007 for felling growing trees without a licence, contrary to section 17(1) of the Forestry Act 1967.

The felled trees stood on adjoining land which had historically been used as part of a larger garden. The land had later become heavily wooded and disused. The central issue was whether, when the trees were felled, the land was comprised in a garden within section 9(2)(b), or whether the appellant’s intention to restore it as a garden was sufficient to engage the exemption.

1. The appeal was allowed. The Crown Court had erred in concluding that the land was not comprised in a garden for the purposes of section 9(2)(b) of the Forestry Act 1967.
2. Whether land is a garden cannot be determined by a definitive description or rigid legal test. The court must consider its appearance and characteristics, its use, and the relationship between the particular occupier and the land. The relevant assessment is fact-sensitive.
3. The approach in McInerney v Portland Port Limited [2001] 1 PLR 104 was applied to the extent that use is material. That case was factually distinguishable because the land there had ceased to be used after the Navy and its personnel had left. Here, the land had a history of use as a garden, the appellant had acquired the adjoining land, and his intention was to restore it as a garden.
4. A mere assertion that trees were felled in order to create or restore a garden may be insufficient. The genuineness of the intention must be assessed against all the facts and circumstances. In this case, the history of the land, the appellant’s responsible enquiry and conduct, and his intention to restore the former garden established the exemption.
5. There was no statutory requirement that a disused garden must first be fully re-established before trees may be felled under the exemption. The Crown Court had given insufficient weight to the genuine intention and its context.
6. The court expressed concern about, but did not decide, whether the burden of proving that the land was comprised in a garden lay on the defendant, as stated in Forestry Commission v Grace [1992] 1 EGLR 28 and R (Grundy & Co Excavations Limited) v Halton Division Magistrates’ Court [2003] 1 PLR 89; [2003] EWHC 272 (Admin).
7. Defence costs were ordered out of central funds in the present court and below. No order for costs was made against the Forestry Commission.

• High Court (Administrative Court): allowed the appeal by way of case stated against the conviction.
• Ipswich Crown Court: on 29 August 2007, dismissed the appellant’s appeal against conviction.