In a stunning decision in the Crown Court on 13 May 2021, FLAC client Mr Joseph Robb had his prosecution for breach of a Tree Preservation Order stayed when the Judge accepted the Defence motion that “to proceed would be an abuse of process, or in the alternative would create an offence unknown to law”. Swale Borough Council alleged that Mr Robb had felled trees in a protected woodland, an allegation that he denied. However, the trees were subject to the requirement for a Felling Licence under S.9(1) of Forestry Act 1967, which at S.15(5) disbars local authorities from even “entertaining” applications for TPO consent to fell such trees.
Supported by the Forestry Commission’s Operations Note 52, the Crown sought to argue that either a Felling Licence issued previously to Highways England could not apply to Mr Robb (or whoever felled the trees), or that even if it did, it did not cover trees subject to a TPO due to a Note on the Licence seeking to exclude them, and that in any event “clear-felling” had taken place, not “thinning” per the terms of the Licence. For any one of these reasons, argued the Crown, the Felling Licence did not authorise the felling of the protected trees, as would otherwise be the case pursuant to Forestry Act 1967 S.15(6).
FLAC Senior Director Julian Forbes-Laird disagreed with the Forestry Commission’s interpretation of the statutory interplay between Felling Licences and TPOs, and developed a counter argument that:
- The offence of felling a tree under a TPO, which resides in Regulations, is for felling it “without the consent of the local authority” and not, for example, “without a relevant consent” which latter might conceivably encompass a Felling Licence
- However, insofar as FA67 S.15(5) disbars local authorities from even entertaining an application under a TPO where FA67 S.9(1) applies, no such consent is possible to obtain
- It would be against natural justice for the law to seek to criminalise failure to pass an impossible test, and accordingly an offence cannot arise in these circumstances
- FA67 S.15(5) has the effect of removing jurisdiction over the felling of trees subject to a TPO from the local authority, and vesting it wholly within the regime set out in FA67
In setting out the Defence case, its counsel, Jonathan Ashley-Norman QC, put it masterfully thus: “Contravention of the requirement for or of a Felling Licence where the trees are subject to a TPO, is exclusively an offence under S.17 of Forestry Act 1967. There is no navigable route from such a contravention to a prosecution under the Town and Country Planning Act”.
Following a short adjournment after the Judge had handed down her decision, the Crown confirmed that it would not be seeking leave to appeal.
In commenting on the outcome, Mr Ashley-Norman said: “I was pleased to deliver JFL’s vision and argument. The credit for the successful outcome is largely his”.
JFL will be writing to the Forestry Commission shortly, seeking withdrawal or amendment of Operations Note 52, the error in which he first drew to its attention in July 2020.