Last week it hit the press that an ancient Oak tree situated in Whitewebbs Park in Enfield had been felled. This has grabbed the newspaper headlines, much like the Sycamore Gap, hitting the press only a couple of weeks before the Sycamore Gap trial is due to go ahead.
But how similar are the legal cases of the Sycamore Gap and the Enfield Oak?
The cases look similar from the outset. Significantly sized, ancient and historically precious trees have been removed but are they the same legally? What’s the tree law in play here?
I spoke to the Daily Telegraph and the Evening Standard about the Enfield Oak and have observed the comments that have been raised in response to the story. So here are a few of my early observations on how and why the cases are different.
1. The Sycamore Gap involved the felling of the tree by an unknown person/persons who trespassed onto land owned by the Northumberland National Park and felled the tree with no apparent motive or reason. Certainly with no permission. The Enfield Oak involved the felling of the tree by the company who own the leasehold interest of the land on which the Oak tree is situated. They have confirmed that it was them who felled the tree.
2. The Sycamore Gap was located on a UNESCO world heritage site. The tree was not protected by a tree preservation order. The tree was around 200 years old. The Enfield Oak was a 500 year old ancient tree, located in Whitewebbs Park and was also not protected by a tree preservation order.
3. The CAVAT valuation system has been used to put a monetary value on both trees. The CAVAT value of the Sycamore Gap is around £622k with the Enfield Oak being placed at £1m.
4. The Sycamore Gap case is a criminal case against 2 defendants charged with the criminal damage of the tree and Hadrian’s wall. The case is being pursued by the CPS with the CPS seeking a fine and/or custodial sentence. A possible 10 year custodial sentence is on the table if one/both of the defendants are found guilty. The Enfield Oak was originally reported to the Met Police but we are told that the criminal conviction is not being pursued. The Toby Carvery are saying that, as the leaseholders they were entitled to carry out the works to the tree and that work was caried out due to health and safety concerns over the tree.
5. In Sycamore Gap the CAVAT valuation is known but is unclear whether that valuation would form the basis of the fine, if a guilty verdict was reached and the defendants received a fine on sentencing. If the defendants did receive a fine, this money doesn’t necessarily go to the tree owner by way of compensation. In the Enfield Oak case, the civil claim could be pursued arguably using the CAVAT valuation as the way in which to determine the level of damages awarded in the claim. This money would be to compensate the tree owner for the loss of the value of the tree.
6. In Sycamore Gap we have no idea why the tree was felled. This is information which might or might not come out during the course of the trial. In the Enfield Oak it is clear that Toby Carvery are saying that the tree was felled as there were concerns over its health and the safety issues that it caused in being within proximity to the restaurant car park.
7. Neither tree had a TPO on it. This has caused questions about why these trees are not protected with a TPO. Generally speaking tree owners such as local authorities tend not to TPO their own trees as they do not need to protect themselves from carrying out work that they shouldn’t do to their own tree. Could a TPO have made a difference in either legal case? A TPO allows the planning authority to pursue a private criminal prosecution against a person responsible for carrying out works in breach of the TPO. In the Sycamore Gap case, the loss of the ability to bring a private criminal claim didn’t stop a criminal claim being pursued as the crime was of sufficient gravity that the CPS have pursued the case. In the Enfield Oak case we are told that the Met Police are no longer involved so a criminal prosecution isn’t been pursued by the police. As such, had the TPO been in place it could potentially have allowed Enfield Council to consider whether to pursue a private criminal prosecution for a breach of the TPO.
8. A big difference in the cases is that in the Enfield Oak case, Toby Carvery rely on their interest in the land on which the tree stood as the leaseholders. They argue that they had the right to carry out the works pursuant to the lease and that they actually had a duty of care to ensure the tree was maintained and that felling it was to protect the health and safety of the public. We do not know what the terms of the leasehold interest were but it raises a very interesting case about how much interest in the management of a tree a freeholder of land retains/loses when land is leased out. The tree’s life will likely outlive the length of the leasehold interest so will revert back to the freeholder.
9. The criminal and civil burdens of proof are different. In the criminal case it will be for the prosecution to show, beyond all reasonable doubt, that the defendants felled the Sycamore Gap tree. There are 40,000+ pages of evidence before the Court to seek to reach that high burden of proof. In the civil case the burden of proof will be the lower burden ‘on the balance of probabilities’. This isn’t a burden to show who did the work but that the work was reasonable in its nature, extent and requirement. Civil and criminal cases aren’t mutually exclusive through, a civil case could follow a criminal case allowing the prosecutor/claimant to pursue both.
10. A lot of people have commented that it is more important to keep the public safe and that, if the tree was a danger, then removing it to stop it failing and falling over was a reasonable step to take. Had there been a tree preservation order on the tree then poor health of the tree could have been an exemption to the requirement for permission to fell the Enfield Oak. However, whilst exemptions apply they can only be exercised with notice, inspection, professional advice and caution. Whether there was a TPO or not, evidence on the health of the tree is going to be key if Enfield pursue a civil claim.
The Sycamore Gap trial starts in the Newcastle Crown Court on 28 April and is set to last for 2 weeks. This is going to keep both of these cases in the news whilst all eyes are on Newcastle and whether history would be made in making a custodial sentence in a tree felling case. One thing is for sure, we are watching history in the making.
