Conwy County Borough Council, R (on the application of) v Lloyd

Judgment

1. MR JUSTICE MAURICE KAY: The hedgerows of Britain are a unique environmental and aesthetic asset. For that reason, legislation exists to safeguard them. Under powers conferred by section 97 of the Environment Act 1995, there have been promulgated the Hedgerows Regulations 1997.

2. The present case comes before the court as a prosecutor's appeal by case stated from justices for the County of Clywd, acting in and for the Petty Sessional Division of Denbighshire. On 6 November 2001, an information was preferred by Conwy County Borough Council, the appellant, against Mr Robert Lloyd. It was in these terms:

"Between 19 June 2001 and 29 June 2001, you intentionally or recklessly removed or caused or permitted another person to remove a hedgerow at land adjoining Nant Uchaf, Groes, Denbigh in contravention of Regulation 5(1) of the Hedgerows Regulations 1997 contrary to Regulation 7 of the Hedgerows Regulations 1997."

3. A trial took place in the Magistrates' Court at Denbigh on 2 April 2002. The justices found Mr Lloyd not guilty and dismissed the case. By regulation 5 of the 1997 Regulations, the removal of a hedgerow is prohibited subject to the conditions therein contained. The legislation provides for a procedure whereby a landowner gives notice to the local authority, whereupon the local authority may consent to a removal, or fail to object to a removal, with 42 days. If the local authority consents or fails to object then, of course, the landowner is free to remove the hedge. On the other hand, under regulation 5(2), the local authority may object by serving a hedgerow retention notice. In order to do that the local authority must consider whether the hedgerow is "important" within the meaning of the Regulations. If it is not important, there is no power to issue a retention notice. If, on the other hand, it is important, the local authority "shall give such a notice . . . unless satisfied . . . that there are circumstances which justify the hedgerow's removal". The next important provision is Regulation 6.1 which provides:

"The removal of any hedgerow to which these regulations apply, is permitted if it is required . . . (j), for the proper management of the hedgerow."

This structure of the statutory instrument is somewhat unusual. Thus, there is no statutory obligation on a land owner to serve a notice on the local authority. He may, if he wishes, remove a hedgerow without notice, and if prosecuted, may raise permitted removal pursuant to Regulation 6. There is no offence of disposing of a removed hedgerow following its removal and prior to inspection by a local authority. Although I have thus far concentrated on the criminal offence created by the regulations, there is also a procedure under Regulation 8 whereby whether or not the landowner is prosecuted under Regulation 7, the local authority can give him notice requiring him to replace a hedgerow. Also, quite apart from prosecution, if disputes arise between the landowner and the local authority about the importance of the hedgerow or the justification for its removal, there is a right of appeal to the Secretary of State in England or the National Assembly in Wales and, in either case, such an appeal is heard by an Inspector.

4. What then happened in the present case? Mr Lloyd, acting through an agent, purported to submit an application for permission to remove the hedgerow on 19 June 2001. It seems that that initial application was defective and a re-application was submitted on 29 June 2001. However, Mr Lloyd did not await the view of the local authority or the expiration of the 42-day period before removing the hedgerow in question. The finding of fact by the justices is that it was removed "during June 2001". They further found that Mr Lloyd had not afforded the local authority the maximum statutory period of 42 days to respond to this notice and that the hedgerow in question was indeed covered by the 1997 Regulations.

5. The summary of the evidence in the case stated discloses that the justices heard from an officer of the local authority whose evidence was that he had not seen the hedge before it was removed and could only give evidence that the hedgerow had in fact been removed. It seems that at the end of the prosecution case there was a submission of no case to answer on the basis that the local authority had failed to show that the hedgerow in question was an important hedgerow; however that application was not successful. Accordingly, the justices then heard the defence case. Mr Lloyd gave evidence that the hedge was unmanageable and could have collapsed down the hill, that it contained a lot of diseased and dead wood and that it could not be fenced up. He said that it presented a hazard to livestock and machinery. He then relied upon the evidence of an expert, Mr Robert Dewi Oliver Williams. No one disputes that he was in a position to give expert evidence to the court. His qualifications and experience and achievements are set out in the case stated. Mr William's evidence was that he was familiar with the hedge in question and that in his opinion it "should have been laid 40 years ago". It seems that "laid" means the application of some process to it which had not in fact taken place.

6. Mr Williams had given advice in 1995 that the hedge should be excavated and that there was nothing better that could be done for the safety of the site. Under cross-examination he stated that the hedge could not have been revitalised and in re-examination he confirmed his opinion that Mr Lloyd's actions in removing the hedge were wholly appropriate. The case stated continues:

"The court accepted the evidence of both Mr Lloyd and Mr Williams and found that the hedge was worthless and dangerous and that its removal was required for the proper management of the hedgerow. Regulation 6(1)(j) of the Hedgerow Regulations 1997 permits the removal of any hedgerow to which the regulations apply if it is for the proper management of the hedgerow, and in this case, there is no need to give notice."

7. The justices acquitted Mr Lloyd. By the case stated, they posed these questions for this court: (1) whether the complete removal of 100 linear metres of hedgerow is capable of amounting to the proper management of the hedgerow within the meaning of Regulation (6)(1)(j) of the Hedgerow Regulations 1997; (2) whether the conclusion of the justices that the complete removal of the hedgerow may have amounted to proper management of the hedgerow for purposes of Regulation (6)(1)(j) of the Hedgerow Regulations 1997, was a conclusion which in all the circumstances no reasonable bench of magistrates properly directing itself was entitled to reach.

8. On behalf of the prosecution, Mr Thomas draws attention to the difficulties which face a local authority when events take the course which they took in the present case. He emphasises the preservation and conservation objectives of the regulations and submits that, adopting a purposive construction, Regulation (6)(1)(j) cannot apply to the complete removal of a hedgerow and, in particular, a hedgerow of the extent that was found in this case. I have observed that the justices referred to 100 linear metres, I have been assisted by the provision of a plan which shows essentially three stretches of hedgerow which were the subject of either partial or complete removal.

9. Mr Thomas draws attention to the Guide to Law and Good Practice which was published by the Welsh Office and the Ministry of Agriculture, Fisheries and Food in relation to the 1997 Regulations. It is not statutory guidance in the sense that its existence was required or referred to by the Regulations, nor was there any obligation on the part of the justices to take it into account, but Mr Thomas refers to it as, he submits, illustrating a sensible approach to the construction of what is meant by the proper management of a hedgerow. The relevant passages are as follows:

"4.15 Cutting back a hedgerow in a manner that does not result in its destruction is unlikely to constitute removal in the terms given in paragraphs 3.14 to 3.16 above. Such works are therefore outside the scope of the regulations and do not need to be notified to the local planning authority.

"4.16 However, this provision has been included to make clear that appropriate hedgerow management techniques which may necessitate the hedgerow being cut back to ground level, such as coppicing, and which may sometimes be viewed by members of the public as removal, are exempt. Repeated coppicing at too frequent intervals or the deliberate cutting down of a hedgerow to ground level where such cutting has never formed a traditional technique of hedgerow management in an area, would not be covered under this exemption. This provision also allows, if necessary, the removal of dead or diseased shrubs or trees from the hedgerow, or of elder bushes as part of restoration works, eg coppicing and gapping, without prior notification. Acceptable management activities are intended to revitalise hedges and should reflect local practices."

10. Mr Thomas further submits that the justices confused their role with that of the local authority, particularly when adverting to "circumstances which justify the hedgerow's removal". Finally he complains that the approach of the justices would give carte blanche to unscrupulous land owners to circumvent the legislation. In the final analysis, his submission is that the decision of the justices was either wrong in law or was a decision which no reasonable justices could have reached. On behalf of Mr Lloyd, Mr Ageros emphasises the words of section (6)(1)(j) which contemplate the removal of "any hedgerow" if it is required for the proper management of the hedgerow. That, he submits, must embrace the possibility that the whole of a hedgerow may be required to be removed in relation to its proper management. The wording of the Regulations does not distinguish between removal of part and removal of the whole of a hedgerow.

11. In my judgment, that submission is irresistible. The wording of regulation (6)(1)(j) is not in any way ambiguous. It accepts the possibility of total removal being required for the proper management of that which is removed. That is, or at least may be, what occurred here. The issue for the justices was whether that total removal was: (a) required (b), for the proper management of the hedgerow. That was a matter for the justices. As Mr Ageros points out, the Regulations are silent as to whether Regulation (6)(1)(j) forms a defence in relation to which a persuasive burden is imposed on a defendant, or whether there is simply an evidential burden which the prosecution must rebut. Either way, it is apparent that the justices were satisfied that its terms were satisfied.

12. I do not consider it possible to limit the words of Regulation (6)(1)(j) by assuming that they must have in mind a degree of preservation or conservation rather than total removal. That quite simply is outside the plain meaning which they bear. So far as Mr Thomas' complaint that the justices strayed into the role of the local authority is concerned, I do not consider that such a complaint is sustainable. What the case stated reveals is that the justices accepted the evidence of Mr Lloyd and Mr Williams and "found that the hedge was worthless and dangerous, and that its removal was required for the proper management of the hedgerow". It is true that the epithets "worthless" and "dangerous" are ones which might arise in a consideration by the local authority of justification, had such a consideration ever taken place. However, the specific finding that the removal of the hedgerow was required for its proper management seems to me to answer Mr Thomas' complaint. Nor do I accept that the decision which the justices reached, and in my judgment permissibly reached, gives carte blanche to unscrupulous landowners to circumvent the legislation. I appreciate that the ability of the local authority to adduce evidence about a removed hedgerow which has not been the subject of notification may be jeopardised. However, that was foreseen and foreseeable from the very structure of the Regulations themselves which, as I have indicated, contemplate the possibility of removal without notice and a subsequent trial centring upon the issue of Regulation 6. Nor do I consider that this judgment will provide unalleviated comfort to unscrupulous landowners.

13. Mr Lloyd's case was decided on the evidence that was before the court. It is significant that it included not only his own evidence, and the fact that it was believed, but that he was able to rely on an expert whose evidence was also accepted and who had some historic familiarity with the hedgerow in question. I apprehend that not all landowners who remove hedgerows without notice or without allowing time for inspection following the service of the notice, would be able to assemble credible evidence of that kind.

14. For all these reasons, I have come to the conclusion that this appeal by the prosecution must be dismissed. The answers to the questions posed by the case stated are that (1): complete removal of 100 linear metres of hedgerow is capable of amounting to the proper management of the hedgerow within the meaning of Regulation (6)(1)(j); and (2): the conclusion of the justices in this case, that the complete removal may have amounted to proper management of the hedgerow for the purposes of Regulation (6)(1)(j), was a conclusion which, in all the circumstances, the justices were entitled to reach. Thank you both, very much.

15. MR AGEROS: My Lord, can I just mention this in relation to costs. The respondent is publicly funded and has a public fund order. If I am required to ask for a detailed funding assessment, may I ask for that?

16. MR JUSTICE MAURICE KAY: Just remind me of the alternatives. Can you have central funds costs in a criminal case stated? Are you applying for costs from central funds?

17. MR AGEROS: No, I am not. I am simply -- he has the benefit of representation (inaudible). I ask for a detailed funding assessment just for that.

18. MR JUSTICE MAURICE KAY: So you are not asking for any costs from any other source.

19. MR AGEROS: My Lord, I am sorry to be straying on to this, but in the light of your Lordship's ruling, if your Lordship thought it was appropriate to make an order for costs out of central funds, then may I say that one would not stand against that.

20. MR JUSTICE MAURICE KAY: I cannot remember whether that is permitted under the rules or not, or whether it is usual or not. Mr Thomas, can you help?

21. MR THOMAS: I believe that Regulation 18, the Cost of Criminal Proceedings Regulations, does not apply in respect of appeals of this nature. It does not apply in this court. It only applies to the Court of Criminal Appeal.

22. MR JUSTICE MAURICE KAY: There is, as you probably know, a gap in the legislation about legal aid for criminal cases stated to this court. They are dealt with on a somewhat pragmatic basis. I am told the pro forma refers to central funds. We had better look it up -- section 60. I think that is all to do with the jurisdiction within the Court of Appeal Criminal Division, as opposed to a single judge here. Would you like to go and take your time and come and tell me at 1 o'clock what the position is?

23. MR AGEROS: My Lord, yes. Thank you very much.

24. MR THOMAS: My Lord, I do ask for permission to appeal for two reasons. First of all, your Lordship's decision is that there is no limitation on the definition of proper management. Secondly, that does cause some difficulty for prosecuting authorities in these circumstances because the evidence is destroyed before they have the opportunity to inspect it. For those reasons, I seek leave to appeal.

25. MR JUSTICE MAURICE KAY: Again, just remind me of the criteria. You can only go to the House of Lords, can you not?

26. MR THOMAS: That is correct.

27. MR JUSTICE MAURICE KAY: Does that require a certificate as well as permission?

28. MR THOMAS: My Lord, yes.

29. MR JUSTICE MAURICE KAY: What does it have to certify?

30. MR THOMAS: The public importance, and the public importance is the restrictions that that places upon the local authority to be handicapped in obtaining evidence in relation to the condition of a hedgerow before it is removed.

31. MR JUSTICE MAURICE KAY: Notwithstanding my affection for hedgerows, I am not persuaded about the public importance, but in any event, I do not think you would have a real prospect of success. I do not give you permission to take it further. I do not think their Lordships would thank me for putting this case their way. Thank you, very much.