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Re: Felling licence

Subject: Re: Felling licence
From: Jerry Ross
Date: Dec 27 2007 16:36:48 


Hare, Gareth wrote:

Hi all, quick one for Forestry minded bods. Do the felling licence
exemptions differ between Scotland and England as I have just read
somewhere that felling of trees in gardens is exempt from the
requirements of a felling licence. Does the same apply in England? I
suppose there is also the question of what constitutes a garden? Does
this  mean the line of domestic curtilage as defined on the Land
Registry drawing or is there some delineation between garden and areas
of woodland within the property boundary? I had previously supposed that
a felling licence would be required if the volume was over 5 cube as
specified in the regs.
Trees in gardens ARE exempted. As are those growing in orchards,
churchyards or public open spaces
I enquired about this a few weeks ago and was given to understand that
there's no legal definition but that (rather like a tree) a garden is
what a reasonable person would ordinarily regard as a garden...
Which is pretty much reinforced in Mynors where, in section 14.2.3, he
quotes one Latham L.J. as saying (with reference to in McInerney V
Portland Port Ltd, 2001):
"The ordinary meaning of the word "garden", it seems to me, is
accurately reflected in the definition of a garden given in the OED,
namely "an enclosed piece of ground devoted to the cultivation of
flowers, fruit or vegetables." The definition may be said to be
deficient in detail, in that one can readily accept that an enclosed
area which is mainly or perhaps entirely filled with a lawn might be
considered to be a garden. Equally there may well be circumstances in
which an area which is wild in its nature is nonetheless, by reason of
the use that is made of it, clearly intended as a garden"
Mynors goes on to say that the words "adjoining a house" may be relevant
and might need to be added to the OED definition. He also states that
what needs to be considered is its primary state at the time in question
- i.e that its historical use or function would be a secondary
consideration. So in the case of trees in a garden or an orchard
purchased for redevelopment, a licence may not be needed if the trees
are felled soon after purchase (while it clearly retains its former
character), but would be if it's allowed to revert to scrub... 



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