In a guest post, Shirani Herbert looks at what can sometimes be a difficult problem for Parochial Church Councils. 

Introduction

The human race has always had an emotional attachment to trees. Trees live so much longer than a human lifespan that we imagine, perhaps sentimentally and fancifully, that they probably knew our ancestors and witnessed significant historical events. Certain familiar trees have become particular objects of affection. The wanton felling of the Gap Sycamore tree caused national outrage. The secular laws which protect trees by requiring permission from the planning authority before an established tree can be felled apply also to the trees on church property. The judgment Re St Kenelm Upper Snodsbury [2001] Charles Mynors Ch (Worcester), which is reviewed in this post, provided an early consideration of the issues involved.

Until the making of the Faculty Jurisdiction Rules 2000 (SI 2047), which came into effect on 1 January 2001, it had merely been assumed that the faculty jurisdiction applied to the control of work on churchyard trees. That was made explicitly clear by the 2000 Rules. [2]

In November 2001, Chancellor Charles Mynors, sitting in the Consistory Court of the Diocese of Worcester, delivered a significant judgment setting out the approach which consistory courts should take when considering whether or not to grant a faculty for work on churchyard trees. The case concerned the churchyard at the parish of Upton Snodsbury, St Kenelm, where the church was of medieval origin but heavily restored in the Victorian period. It had been listed as a building of special historic and architectural interest, and the churchyard was within a conservation area.

There were several large trees in the churchyard, all of which had grown in the last 125 years. None of them was the subject of a tree preservation order under the Town and Country Planning Act 1990 or its predecessors.

The petitioners were the incumbent and churchwardens of the church, who sought a faculty for the felling of four trees — a large sycamore, an oak, a cypress and a second smaller sycamore. The petitioners claimed that the works to all four trees were necessary because their roots were damaging the retaining wall and foundations of the church.

There were no parties opponent to the petition, but the Diocesan Advisory Committee (“DAC”) did not recommend the felling of the large sycamore. The DAC said that the large sycamore was a “particularly fine and attractive specimen” of “considerable local amenity value”, and that there was insufficient evidence on the seriousness of its impact on the church.

The extent and control by consistory courts over works to existing churchyard trees had hitherto been the subject of some uncertainty. Prior to the coming into force of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, the felling, lopping or topping of trees of a parsonage house and the felling of timber growing in a churchyard required the consent of the parsonages board. [28]

One of the effects of the 1991 Measure was to introduce, or at least to declare, the existence of a single system of control extending to the whole of every churchyard, including not only the graves, funerary monuments, lynch-gate and other structures, but also the ground itself and the trees and shrubs which were part of that ground. No work to trees fell within the categories of works which could be authorised by an Archdeacon. Any faculty relating to trees had to be granted by the Chancellor. [29] [33]

Works to a tree were often claimed to be necessary because some or all of it was dangerous. Where that was the case, urgent steps needed to be taken to remove the danger. The supposed urgency of the work needed to be considered with caution. It might be that the condition or location of the tree was such that all or part of it was likely to cause harm to people or animals, for example, by falling on them. Or the only harm might be to property being damaged by a tree or a branch falling on it or by its foundations being damaged due to underlying ground subsiding as a result of excessive moisture uptake by nearby tree roots. [34] [35]

Where works to trees were not urgently necessary to remove a danger, there was no prescribed test as to the approach to be adopted in considering faculty petitions. However, a series of decisions of consistory courts and the appeal courts made it clear that a consistory court must have regard both to the role of a church as a local centre of worship and mission and to its importance (if any) as a building of special architectural or historic interest. In the case of churchyards, it would not often be that an issue would arise which would affect the role of the church as a local centre of worship and mission (other than the pastoral concerns which regularly arose in connection with burials and exhumations). [39] [40]

On the other hand, issues might well arise which affected the setting of the church and thus its character and appearance as a building of special interest; the structure within the churchyard, and in particular, but not exclusively, those of special interest and their setting; the character and appearance of the churchyard as a whole; and the contribution of the churchyard to the character and appearance of the areas surrounding it. Practical considerations, such as those relating to maintenance and repairs, would frequently be very important. [39]

Against that background, the correct approach by a consistory court seemed to depend on whether or not the tree was subject to a tree preservation order or was in a conservation area. Where a tree was the subject of a tree preservation order, that was a clear statement by the planning authority that it regarded the tree to be of especial value, as was reflected by the criminal liability attaching to the carrying out of almost any work without explicit consent. It followed that only in the most exceptional circumstances was there likely to be any point in the consistory court considering any application for works which the planning authority, and the Secretary of State where there had been an appeal, had refused to authorise. [41] [42]

Further, where the planning authority or the secretary of state had decided to grant consent under the order, it would only be appropriate for the court to reconsider the matter if there was some ground of objection which had not been fully considered by that decision, particularly where that ground related to the work and mission of the church. [42]

Where a tree was in a conservation area but not subject to a tree preservation order, the planning authority must be notified of proposed work to trees. A failure to comply would lead to prosecution. If, following such notification, the authority wished to prevent the works it must impose a preservation order on the tree. The position then would be as in the case of a tree which had been made the subject of a preservation order. [44]

Where a tree was neither subject to a preservation order nor within a conservation area, the court must decide. In addition to the factors highlighted before, the court must 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. It would also be appropriate to consider the value of the tree as a habitat for wildlife, particularly in the case of a veteran tree, and any historical associations which might exist. If there were any loss of amenity, it would then be necessary to consider the need for the proposed work, paying special attention to any factors said to affect the role of the church as a centre of worship and mission and to pastoral concerns such as the effect of the tree on nearby graves. Finally, it would be necessary to consider whether the loss of amenity would be outweighed by the need for the works. [45]

It would also be necessary in some cases to consider the financial consequences of the possible options. If remedial action to avoid future problems, such as the removal of one branch, would cost relatively little, it would clearly be undesirable to lose altogether a tree of significant amenity value, at least until a suitable replacement had had a chance to establish itself. If, on the other hand, such action would cost a great deal, as with underpinning a medieval church, it would be absurd not to fell the tree. In many cases, the true position would be somewhere in the middle. [46]

In regard to the sycamore tree in the present case, the Chancellor was not convinced that its presence could properly be categorised as “dangerous”. Its removal could not therefore be authorised on the basis of being urgently required. [48]

There seemed to be universal agreement that the tree was of considerable amenity value so that its removal was inherently undesirable. Sycamore trees were, in many circles, not highly valued. But this particular specimen, because of its form, size and prominent location, contributed significantly to the appearance of the churchyard both in views from within it and from neighbouring roads and distant viewpoints. On the other hand, while its removal would be immediately noticeable, there were a number of other trees in the churchyard and there would still be a generous amount of tree cover. People would soon become accustomed to the altered appearance of the churchyard without the sycamore. [50] [51]

Nobody had claimed that the tree had any special historical associations or drawn attention to any particular value that it might have as a wildlife habitat. No pastoral or other concerns of a specifically “ecclesiastical” character had been raised. The only justification for the work related to the practical problems perceived to arise as a result of the roots of the tree. The parish had perfectly properly explored all possible courses of action which might enable the tree to remain without causing damage to the foundations of the church and the retaining wall. The parish had limited funds and had already spent a great deal on obtaining professional advice on the matter. [52] [[53][54] [55]

The conclusion was that the loss of the tree would constitute a significant but not serious loss of amenity, especially in the short term, but it would be likely to lead to some practical benefit to the retaining wall and to the church. A faculty was granted for the tree to be felled, subject to conditions, which included a condition that a tree of appropriate species was planted within 24 months following the felling at an appropriate location. [60] [61]

Shirani Herbert

Footnote

This post is based upon reported judgments of the respective Chancellors. It does not purport to give legal or technical advice, or technical analysis of the issues discussed. Specific advice from experts in the area should be sought where potential problems have been identified.