Steven Levy and Rhys Rosser have successfully appealed against sentence imposed on a company for breaching a tree preservation order, as well as failing to comply with stop notices. Rhys and Steven were able to reduce the financial penalty from £250,000 to £120,000 before Basildon Crown Court.
The offence of contravention of a Tree Preservation Order is contained within section 210 Town and Country Planning Act 1990 as follows:
(1) If any person, in contravention of tree preservation regulations:
(a) cuts down, uproots or wilfully destroys a tree,
(b) wilfully damages, tops or lops a tree in such a manner as to be likely to destroy it, or
(c) causes or permits the carrying out of any of the activities in paragraph (a) or (b),
they shall be guilty of an offence
The following, are potential defences to an offence pursuant to Section 210:
the tree in question is dead, dying, or dangerous;
the work is required to comply with a statutory obligation;
the work is necessary for the prevention or abatement of a nuisance;
the works are urgently necessary to remove an immediate risk of serious harm;
the tree in question is cultivated for the production of fruit in the course of a business or trade and such work is in the interests of that business or trade;
The works involve the removal of dead branches from a living tree;
The work is necessary to implement a planning permission (other than an outline planning permission).
The offence is not well known. Most concerningly, lack of knowledge of an order is not a defence – it can only be mitigation (Maidstone BC v Mortimer [1980] 43 P&CR 67). The result is that individuals can breach TPOs without knowing they are doing so and show the importance of proper due diligence before embarking on tree removal.
There are no sentencing guidelines for breaching a TPO, which means that the sentences imposed can be vast and inconsistent. The following are accepted as being the key considerations when approaching sentence:
the degree of financial gain that the defendant has attempted to achieve;
the degree of culpability of the defendant; and
the degree of damage that has been done.
The leading case is R v Palmer [1989] 11 Cr App R (S) 407. This case states that the starting point that should be taken is the amount saved by the Defendant in not complying with the order. This can then be adjusted depending upon the flagrancy and whether the destruction was deliberate.
It is important to be aware that there are sentencing guidelines that apply to the Northern Ireland offence (which is broadly the same as the England and Wales legislation). In their recent appeal, Steven and Rhys were able to persuade the Court that they ought to base sentence on the Northern Irish guidelines rather than the unreported case law (which includes a Welsh case where a fine of £420,000 was imposed for the felling of 73 trees). The Northern Irish guidelines provide starting points in commercial cases of £25,000 and £5,000 for domestic cases which shows the importance of properly informed legal representation.
In the appeal dealt with by Rhys and Steven, the Magistrates Court also failed to give adequate consideration to totality. This demonstrates the importance of the over-riding principles such as credit for a guilty plea and proper consideration of the Defendant’s means. As a result of the submissions made, the sentences imposed for breaching the stop notices were reduced by two thirds.
There are clearly lessons to be learned when dealing with offences which relate to breaches of planning notices and preservation orders. A robust approach should be taken to sentencing to ensure that Magistrates are properly informed of the guidelines, the case law and the proper principles to be applied to sentence.