UKTC Archive

RE: Felling licence

Subject: RE: Felling licence
From: Hare, Gareth
Date: Dec 27 2007 16:44:10


  
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...




Thanks Jerry (and Chris earlier) for your responses. These have helped.
The situation has been resolved to some extent by a TPO being served but
the thorny matter of whether the F.C will consider the extent of the
works carried out to require a felling licence remains to be seen.

Have a good New Year guys

Gareth



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