Worcester Consistory Court: Mynors Ch, November 2001
The petitioners, in two separate petitions, sought a faculty sanctioning the felling of four trees growing in the churchyard of a listed church. The churchyard was within a conservation area. None of the trees was subject to a tree preservation order. There was little dispute as to the desirability of felling three of the trees. A faculty was duly granted and the trees felled. As to the fourth, a large sycamore, the DAC declined to recommend felling as it was 'a particularly fine and attractive specimen, and offers considerable local amenity value'. The local authority indicated that it did not, as a rule, place preservation orders on trees in churchyards as they were, in any event, subject to faculty jurisdiction. The chancellor considered evidence from civil and structural engineers, an arboricultural consultant, and the inspecting architect. English Heritage initially commended monitoring the position for twelve months in the light of movement to the east end of the church. It subsequently withdrew its objection. The LPA recommended crown reduction. The chancellor reviewed in some detail the law relating to trees in churchyards. The chancellor referred to the legal responsibility of the PCC under section 6 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991. Prior to that Measure coming into force, the consent of the diocesan parsonages board had to be obtained for the felling of timber growing in a churchyard. See section 20(1) of the Repair of Benefice Buildings Measure 1972, repealed by s 6(4) of the 1991 Measure with effect from 1 March 1993. He also referred to the controls under the Town and Country Planning Act 1990 in respect of trees subject to tree preservation orders, in relation to which there is no ecclesiastical exemption. Notice must generally be given to the LPA of works in relation to trees in a conservation area. See Tree Preservation Orders: A Guide to the Law and Good Practice (Department of the Environment, Transport and the Regions, 1999). He drew attention to the requirement for the chancellor, after consultation with the DAC, to give written guidance to all PCCs as to the planting, felling, lopping and topping of trees in churchyards: see section 6(3) of the 1991 Measure.
The chancellor considered that certain minor works to trees might usefully be brought within the de minimis provisions under section 11(8) of the Measure. Works to trees are not within the archdeacon's jurisdiction. He also distinguished between dangerous trees, which presented an immediate threat, and others where the danger was gradual by way of encroachment or otherwise. Where there is a tree preservation order in existence (and thus concurrent jurisdiction of the LPA and the consistory court) the correct approach (by analogy with planning permission) is to assume that the LPA has made the correct decision unless there is convincing evidence to the contrary: See Re St Mary's Kingsworthy (1998) 5 Ecc LJ 133, and Re St James, Stalmine (2000) 6 Ecc LJ 81. Where however there is no tree preservation order or where the tree is in a conservation area and, following notification, the LPA has declined to make such an order, the consistory court will need to consider the amenity value of the tree in itself, its contribution to the amenity value of the churchyard as a whole, and any loss of amenity likely to arise from the carrying out of the works. In this instance, the loss of the tree would constitute a significant but not serious loss of amenity but would lead to some practical benefit in relation to a retaining wall. A faculty was therefore issued, conditional, amongst other things on the planting within 24 months of an appropriate replacement tree.
(2002) 6 Ecc LJ 293-294
