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case involved the felling of an Oak tree which was the subject of a tree preservation
order. The respondent, a Mr J Mortimer who was by occupation a tree feller, was asked by
the tree owner to remove the tree. The tree owner believed that she had received consent
from the parks department of the local authority to remove the tree when in fact no
consent had actually been given.
During the felling operation a council official arrived on the scene and confirmed that
the tree was protected but considered the tree to be unsafe due to the presence of two
cuts already made in the tree by the respondent. It was ordered that the tree be felled
completely.
The council took proceedings against the respondent for contravention of S102(1)
of the Town and Country Planning Act 1971 but this was dismissed by the justices (for the
county of Kent) sitting at Maidstone Magistrates Court in August 1978 where it was held
that knowledge of the existence of a tree preservation order was necessary for it to
become an offence. The council appealed.
During the appeal the following points were included within the judgement made by Park
J.
"I think it is right to bear in mind that if it were the law that no conviction
could be obtained under S102(1) unless the prosecution could discharge the often
impossible burden of proving that the accused knew of the existence of the relevant tree
preservation order, that subsection would have little, if any, deterrent effect".
"I do not think that the section was intended to be interpreted or should be
interpreted as making the cutting down or wilful destruction of a tree or the topping
or lopping of such a tree in such a manner as to be likely to destroy it, an offence
only if the accused had knowledge of the existence of the tree preservation order. In my
judgement, no such proof is necessary."
It was held that not knowing the existence of a tree preservation order is no defence.
The appeal was allowed.
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