Steven Levy and Rhys Rosser achieved a successful appeal against a company’s sentence for breaching a tree preservation order and failing to comply with stop notices. The result of their efforts saw the financial penalty reduced from £250,000 to £120,000 in a case heard at Basildon Crown Court.
The offense of contravening a Tree Preservation Order is defined in section 210 of the Town and Country Planning Act 1990, which outlines that individuals can be found guilty of an offense if they, in contravention of tree preservation regulations, engage in activities such as intentionally cutting down, uprooting, destroying, damaging, topping, or lopping a tree in a manner likely to destroy it, or causing or permitting these activities.
Several potential defenses can be employed against an offense pursuant to Section 210, such as when the tree in question is dead, dying, or poses a danger, when the work is mandatory to meet a statutory obligation, when it’s necessary to prevent or reduce a nuisance, when there’s an urgent need to eliminate an immediate risk of serious harm, when the tree serves the production of fruit in the course of a business or trade, when the work involves the removal of dead branches from a living tree, or when it’s necessary to implement a planning permission (excluding an outline planning permission). Notably, lack of knowledge of an order is not a defense but can be considered mitigation, emphasizing the importance of due diligence before engaging in tree removal.
It’s essential to be aware that there are no established sentencing guidelines for breaching a Tree Preservation Order. Consequently, sentences imposed can vary significantly, making it crucial to consider key factors such as the defendant’s degree of financial gain, degree of culpability, and the extent of damage when determining a sentence.
The pivotal case in this context is R v Palmer [1989] 11 Cr App R (S) 407, which establishes that the starting point for sentence calculation should be the amount saved by the defendant due to non-compliance with the order, with potential adjustments based on flagrancy and whether the destruction was deliberate.
Importantly, there are sentencing guidelines that apply to the Northern Ireland offense, which is broadly similar to the legislation in England and Wales. In their recent appeal, Steven and Rhys successfully argued for the use of the Northern Irish guidelines rather than unreported case law, including a Welsh case where a £420,000 fine was imposed for the felling of 73 trees. The Northern Irish guidelines set starting points at £25,000 for commercial cases and £5,000 for domestic cases, underscoring the importance of well-informed legal representation.
In the appeal handled by Rhys and Steven, the Magistrates Court overlooked considerations of totality. This underscores the importance of adhering to overarching principles such as crediting a guilty plea and properly assessing the defendant’s means. As a result of these submissions, the sentences for breaching the stop notices were reduced by two-thirds.
In conclusion, when dealing with offenses related to planning notices and preservation orders, a comprehensive approach to sentencing is vital to ensure that magistrates are well-informed about the guidelines, case law, and the appropriate principles for determining the sentence.
