Historical context
The control by the law over trees in churchyards predates the faculty system.Footnote 2 By the statute Ne rector prosternat arbores in cemiterio Footnote 3 at the beginning of the fourteenth century legislation was made to protect churchyard trees:
Forasmuch as we have understood very often that contention hath arisen between parsons of churches and their parishioners, touching trees that grow in the churchyard, both of them affirming that they belong to themselves, we have thought good to declare the doubt of such contentions by law of writingFootnote 4 rather than by law of statute; for whereas the churchyard, specially that which is dedicated, is the soil of the church, and whatsoever is planted upon the soil belongeth to the soil, it followeth necessarily that the trees themselves ought to be numbered amongst the church goods, the disposing whereof is not given to laymen, but as the Holy Scripture witnesseth, the care of disposing them being undiscussed by God ought to be committed unto priests only: but forasmuch as these trees oftentimes are planted to keep away the force of the wind for hurting of the churches, we will that the parsons of churches do not presume to fell those trees undiscreetly, but only when the chancel of the church doth want necessary reparations; nor shall convert them to any other use by any other means, unless the body of the church do likewise want reparations, and the parsons do of charity think good to give of those trees to the parishioners wanting them; which we do not command to be done, but when it is done we commend it.Footnote 5
In 1741 this provision was considered by the Lord Chancellor, Lord Harwicke, in Strachy v Francis and was held to permit a rector to cut down trees for the repair of the parsonage house as well as for the repair of the church; otherwise, as happened in that case, the rectorFootnote 6 could be restrained by injunction from felling the trees.Footnote 7 There was no suggestion that a faculty was required for the felling of trees.
Canon 85 of the Canons of 1603 required churchwardens to keep the churches of which they were the officers ‘well and sufficiently repaired’ and ‘[t]he like care they shall take that the churchyards be well and sufficiently repaired, fenced and maintained with walls, rails or pales …’.
It is, however, difficult to see this as imposing any duty on churchwardens in respect of trees in churchyards.Footnote 8
The regime as applying under the Statute of Edward I was reformed and put on a statutory footing by section 51 of the Ecclesiastical Dilapidations Measure 1923. This subjected trees in a churchyard to essentially the same regime that applied to glebe land. A tree in a churchyard was not to be felled without the consent in writing of the Diocesan Parsonages Board and then only for the repair of the church. It was provided that the Board might direct the incumbentFootnote 9 to fell it where this was required as a matter of good management.Footnote 10 Section 51 was re-enacted with minor changes in section 20 of the Repair of Benefice Measure 1972.Footnote 11
Before 1991,Footnote 12 it is clear that the view was taken that the felling of a tree in churchyard did not require a faculty. There is no suggestion that a faculty was required in either BurnFootnote 13 or PhillimoreFootnote 14 on Ecclesiastical Law. The Opinions of the Legal Board, published in 1939 and re-issued in 1947, considered the legal position as regards trees in churchyards in detail but did not suggest that they were subject to the faculty jurisdiction; evidently it would have done so if they were. Similarly, Newsom’s The Faculty Jurisdiction of Church of England (1982) did not suggest that trees were subject to the jurisdiction. A footnote in Halsbury’s Laws (1975)Footnote 15 stated ‘[t]he felling of trees normally requires the consent of the diocesan parsonages board … but not, it seems a faculty’.Footnote 16
Recommendations for reform
In 1980, General Synod established a Faculty Jurisdiction Commission, charged with carrying out a review of the faculty system. It reported in 1984. As regards trees, it made the following recommendation:
We recommend that the PCC, rather than the Diocesan Parsonages Board should in future be responsible for the care of trees in churchyards. The present arrangements under the Repair of Benefice Buildings Measure 1972 section 20 now appear somewhat anomalous and are, to some DPBs, financially embarrassing.Footnote 17 It would be preferable for this responsibility to merge with the PCC’s general responsibility to maintain the churchyard, so that the PCC should pay for any necessary felling as well as receiving the proceeds of sale of any timber. The PCC would require a faculty for any felling of mature trees, which would normally be granted (under our proposals) by the archdeacon, without a fee. The consent of the local authority might also be required.Footnote 18
It will be seen that that the Commission did not expressly say that their proposal would represent an extension of the faculty jurisdiction to trees but, given the background, it is clear both that this was the case, and also that the Commission would have appreciated this.
It does not necessarily flow from imposing a duty on the PCC to look after the trees in a churchyard, and the abolition of the requirement for the consent of the DPB for felling, that the felling of a tree should require a faculty. However, one can see that while the DPB might be presumed to approach matters in a responsible manner (and have ready access to expert advice), the same could not be said about all PCCs. The Commission recognised that tree works in a churchyard might also require local authority consent but did not reflect upon whether, in the light of this, requiring faculty approval for the felling of trees was appropriate.
The need for local authority consent comes about through town planning legislation. Under that legislation, if it appears to a local planning authority that it is ‘expedient in the interests of amenity to make provision for the preservation of trees or woodlands’ in their area, that authority may make a tree preservation order.Footnote 19 Felling, topping or lopping of such a tree requires the consent of the local planning authority. Moreover, felling, topping or lopping of a tree in a conservation area cannot be undertaken without giving the local planning authority six weeks’ notice. This gives the local planning authority the opportunity to make a tree preservation order if it considers that its preservation is expedient in the interests of amenity.Footnote 20 Many churchyards are in conservation areas.
Accordingly, one approach would have been to leave the control of the felling, lopping and topping of trees to secular control; by contrast, subjecting churchyard trees to the faculty jurisdiction meant creating a system of dual control.Footnote 21 It may have seemed inappropriate as a matter of principle to abolish one form of ecclesiastical control without replacing it with another.
However this may be, the recommendations of the Commission were enacted by the Care of Churches and Ecclesiastical Jurisdiction Measure 1991. Section 6 specifically addressed trees. It provided:
6 Provisions relating to trees in churchyards.
(1) The powers, duties and liabilities of a parochial church council with respect to the care and maintenance of churchyards shall extend to trees therein, including those proposed to be planted.
(2) Where a tree in a churchyard maintainable by a parochial church council is felled, lopped or topped the council may sell or otherwise dispose of the timber and the net proceeds of any sale thereof shall be paid to the council and applied for the maintenance of any church or churchyard maintainable by the council.
(3) The chancellor of a diocese shall, after consultation with the advisory committee, give written guidance to all parochial church councils in the diocese as to the planting, felling, lopping and topping of trees in churchyards.
(4) The provisions of section 20 of the Repair of Benefice Buildings Measure 1972 (which relates to the felling etc. of trees) in so far as they relate to trees in churchyards shall cease to have effect.
(5) In this section ‘churchyard’ includes a closed churchyard.Footnote 22
The extension of the faculty jurisdiction to trees
However, the extension of the powers, duties and liabilities of a PCC in respect of churchyards to trees did not extend the faculty jurisdiction to trees; and the fact that the proceeds of sale of a churchyard tree were now payable to the PCC would not have affected the application of the faculty jurisdiction. It would nonetheless have been odd to impose a duty on the Chancellor to give guidance on trees in consultation with the DAC if the DAC and the Chancellor were not in the future to have jurisdiction over them through the faculty system.
Against the background of what Faculty Jurisdiction Commission intended, and the inference that can be drawn from the provision of sub-section (3), it seems likely that the draftsman intended to bring about the extension of the faculty jurisdiction to trees by the terms of section 11 (1) of the Measure. This provided:
For the avoidance of doubt and without prejudice to the jurisdiction of consistory courts under any enactment or rule of law, it is hereby declared that the jurisdiction of the consistory court of a diocese applies to all parish churches in the diocese and the churchyards and articles appertaining thereto.Footnote 23
On the face of it, by virtue of this provision, trees in churchyards were now within the faculty jurisdiction by virtue of existing within churchyards. However, it may be noted that as a means of extending jurisdiction to trees (which was what was intended) this was not a clear way of doing so. As explained above, there did not before 1991 exist a doubt as to whether the faculty jurisdiction extended to trees: it was clear that it did not and that trees were sui generis. It was presumably a doubt as to the scope of the generality of section 11 that led Newsom and Newsom in The Faculty Jurisdiction of the Church of England (1993)Footnote 24 to suggest that a tree is an ‘article’, the authors praying in aid of section 31(1) – whereby an article includes ‘part of an article and anything affixed to land or a building’. However this is unconvincing:Footnote 25 one would not ordinarily describe a tree as an ‘article’; nor as being ‘attached’ or ‘fastened’ to land.Footnote 26
As it is, matters have moved on. The Faculty Jurisdiction Rules 1992Footnote 27 made no reference to trees and thus shed no light on the matter. However, in their next iteration in 2000Footnote 28 the rules did refer to trees. Thus these rules made specific provision for seeking the advice of the Diocesan Advisory Committee in respect of a faculty for tree worksFootnote 29 with a standard template provided for doing so.Footnote 30 The Faculty Jurisdiction Rules 2015Footnote 31 made new general provision for minor works by putting them into two categories: those, identified in List A to the Rules, which could be undertaken without any further authority; and those, identified in List B, which required the consent of the archdeacon. Some, very minor tree works, were put in List A; and some in List B.
It is not realistic now to contemplate the possibility of a successful argument that the faculty jurisdiction does not extend to trees. For a court to uphold such an argument, it would need to hold both that Synod had proceeded under a misapprehension in promulgating these rules in 2000 and 2015 and also Parliament in approving them.Footnote 32
The consistory court’s function
Given that it is clear that trees are subject to the faculty jurisdiction, the question arises as to how the Consistory CourtFootnote 33 should exercise that jurisdiction.
The relevance of dual planning control
The first thing to note is that, given the existence of overlapping secular control over the felling, lopping and topping of trees, the grant of a faculty is irrelevant if the secular authority declines to give its consent to the relevant tree work.Footnote 34 Indeed, if a PCC proceeds with works to a tree protected by a tree preservation order without consent, it will be liable to prosecution. In the light of this fact, it makes sense for the consistory court to adjourn consideration of any case where secular consent is needed until the outcome of the application for secular consent has been decided. In Re St Kenelm, Upton Snodsbury,Footnote 35 Mynors Ch made an observation to this effect. He then went further and said:
… where the authority or the Secretary of State has 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 taken into account in that decision – particularly where that ground related to the work and mission of the church.Footnote 36
It can be added that in the case of a tree that is not subject to the secular jurisdiction,Footnote 37 this very fact indicates that the basis for refusing a faculty may not exist: the local authority or Secretary of State is content that it may be felled. In Re St Kenelm, Mynors Ch further observed that the approach of deference to the views of the planning authority or Secretary of State that:
[It] echoes that of consistory courts deciding cases where planning permission is needed for a proposal as well as a faculty.Footnote 38
The approach of consistory courts to the grant of a faculty in circumstances where there is a planning permission was comprehensively reviewed and restated by Bursell QC Ch in Re St Mary’s, White Waltham (No 2).Footnote 39 His analysis included consideration of Re St Kenelm. He said:
… any court should recognise a proper comity between courts and tribunals of different jurisdictions. That being so, and having considered the various authorities set out above, I have reached the decision that the consistory court is entitled to accept the reasoned decisions of a planning authority, or of a planning inspector, unless they are demonstrated to be wrong by cogent evidence. If the matter has been properly aired before such an authority or inspector the consistory court is entitled in my view to accept the planning decision as a reasoned starting point from which to begin its own deliberations. In such circumstances it is insufficient for an objector merely to voice dissatisfaction with a decision: any objection must itself be reasoned and supported by proper evidence. Precisely what evidence may be required to displace the assumption in favour of the reasoned planning decision will depend upon the particular facts of the case. Thus the case may have been put differently before the planning authorities or a particular aspect may have been overlooked.Footnote 40
What Bursell QC Ch said applies with particular force to a situation where the consistory court is being asked to differ with the views of a local planning authority on matters where that authority may be thought to have a special expertise or access to such expertise, for example, as regards traffic. Some of these matters may have a degree of subjectivity and/or be matters which on the face of it only concern the secular authority (such as the application of green belt policy). The assessment of the value of trees and more technical matters such as their life expectancy are matters on which the DAC may be expected to have a viewFootnote 41 and, further, one which is essentially objective. In Re St Kenelm, it appeared that the DAC did differ from the local planning authority.Footnote 42
Further, as noted above, Tree Preservation Orders are made in the interests of amenity. Independent of any amenity value a tree may also have botanic value or value as a habitatFootnote 43 and/or by virtue of its age or historical associations.Footnote 44 It will absorb carbon dioxide and so will contribute to the reduction of the carbon footprint of the church with which it is associated. On the face of it, the consistory court has to consider these aspects also. In Re St Mary, Mapledurwell,Footnote 45 Ormondroyd Ch so held and, indeed, went further:
8. … Where trees in a conservation area are concerned, the local authority will simply consider whether the trees provide sufficient amenity value to warrant the making of a tree preservation order.
9. This court, on the other hand, will look at matters in a broader perspective which acknowledges that trees are living parts of God’s good creation, which have value for that reason regardless of their utility to human beings. This is particularly so if, as appears to have been the case here, the trees provide a habitat for other species. More specifically, trees may form an important part of the character and appearance of the churchyard. Yew trees in particular have long been associated with churchyards (although the reasons for this association are somewhat obscure) and the presence of mature yew trees in a churchyard is accordingly of some historical and cultural value in itself. I have already mentioned, above, the link that mature trees provide to past generations who have cared for the site (emphasis supplied).
Anthropocentricity
Criticism of secular environmental law as being anthropocentric is now becoming common.Footnote 46 However, the working out of the principle is more problematic. One cannot push anti-anthropocentricity too far. It is clear that, if a tree becomes dangerous, it may need to be felled. Also, if it is causing damage to another building it may require to be felled, particularly if there might be an action in nuisance if it is not to be felled. A church extension may require the felling of a tree. Where the tree is not particularly valuable (looking at the matter from a human perspective) and the need is a strong one, the case may be easy of decision. But in practice the exercise of the court’s discretion can be difficult.Footnote 47
The application of the Duffield guidance
Decisions of the consistory courts have raised the question of whether the Duffield guidanceFootnote 48 is relevant.Footnote 49 Although it may be said that assistance may derived from consideration of the principles underlying the Duffield guidance – which is about weighing harm against benefit – it is clear that the guidance itself only applies to harm to a listed building (and not to something in the vicinity of a listed building). In Re All Saints, Marcham, the Duffield guidance was held to apply to a consideration of the effect of the felling of a tree on the church building but, in the event, the extent of any such harm was not identified.
The role of statutory guidance
In 2015, the duty imposed on chancellors to give guidance on tree matters under section 6(4) of the 1991 Measure was taken from them and given to the Church Buildings Council.Footnote 50 The current guidance (2021) which evidently contains much useful information does not engage with how the intrinsic value of a tree is to be assessed or, more particularly, the weighting appropriately given to the various factors arising.
Pragmatism
Since 2001 there have been a large number of reported decisions of the consistory courts on trees as, pragmatically, chancellors have decided whether a sufficient case has been made for the felling of a tree. Each case turns on its own facts. No test or guidance similar to the Duffield guidance has emerged, although it may be observed that underlying the cases is the principle that the more significant the tree, the greater the evidence needed to justify felling it – the same principle, of course, lying at the heart of the Duffield guidance. But individual cases will present challenges to the consistory court. Out of many cases, one may be selected as illustrative of this.
The case of Re All Saints, Marcham Footnote 51 concerned an attractive historicFootnote 52 church in Oxfordshire which is listed Grade II* and in a conservation area. On the south side of the church was a yew tree. In his quinquennial report, the church’s inspecting architect identified it as being ‘too close to the walls’ of the church and recommended that it be pruned back or removed within a period of twelve months. The tree was not subject to a Tree Preservation Order but because it was in a conservation area, the petitioners notified the local planning authority of their intention to fell it. The authority had no objection. No parishioner objected and the PCC endorsed felling.
The tree can be seen in the picture of the church which accompanies the listing description and the petitioners supplied Hodge QC Ch with further pictures. It was evidently attractive and enhanced the setting of the church. Accordingly, the Chancellor indicated to the petitioners his preliminary view that it would be appropriate to permit the tree to be cut back; but not its felling.
The petitioners justified the felling on the following grounds:
… given the size of the yew tree, to cut it back to the size of the lilac in the southwest corner of the churchyard would leave a brown ‘twiggy’ bush with no green leaves. This would, in the opinion of the tree surgeon, take a good three years to recover, and it would then require pruning at two-yearly intervals. The petitioners consider that this would adversely affect the overall look of the church and its surroundings more than the complete removal of the yew tree. To cut it back to a point where there were still green leaves would not be worth the cost as it would still remain very large. To leave it in situ would risk further damage to the graves and the memorials within the area covered by the yew tree. There were said to be a number of other yew trees within the churchyard, so the removal of this one would not leave the churchyard short of them.Footnote 53
In the light of this further information Hodge QC Ch decided that the petitioners:
… have made out a sufficiently clear and convincing justification for the felling of this established yew tree, together with a satisfactory explanation of why pruning it back is not an acceptable alternative. The court does not consider that on a question essentially of aesthetics and appearance, it should override the clear preference of the petitioners for the complete removal of the yew, as opposed to its pruning back, when this less drastic option has been expressly raised by the court with, and rejected by, the petitioners, and their preferred course has received the endorsement of the PCC, the LPA, the DAC, and the petitioner’s appointed tree surgeon.Footnote 54
He said that he gave his decision with ‘some personal reluctance’.Footnote 55 It will be seen that what the chancellor endorsed is an aesthetic judgment: once the need for at least cutting back was established, it was better from an aesthetic point of view to fell the tree rather than to cut it back. The intrinsic value of the tree was not given any weight. It seems that a key practical consideration for Hodge QC Ch was the apparent absence of any objection to the proposal to fell.
The responsibility of the incumbent
Finally, having considered the application of the faculty system to churchyards, it is appropriate to consider the scope of the duty that arose under section 6 of the 1991 Measure and is now contained in section 51 of the Ecclesiastical Jurisdiction and Control of Churches Measure 2018; and the possibility of residual responsibility of the incumbent as owner of the churchyard.
After the enactment of section 6 of the 1991 Measure a PCC’s duty in relation to the care and maintenance of a churchyard was extended to the trees in that churchyard. Before that enactment, its duty was essentially the same whether open or closed – to keep it in decent order.Footnote 56 Clearly, after the enactment of section 6 the content of the duty includes dealing with trees. So, for example, the duty might involve removing a tree which, while sound, had fallen in the course of a storm or through some other natural agency. The Opinions of the Legal Board, in 1939, expressed the view that the PCC had such liability (i.e. even before 1991). As regards dangerous trees, the Opinions expressed the view the cost of removing them should be borne by the incumbent as owner.Footnote 57
In respect of a closed churchyard for which it has responsibility, by virtue of section 215 of the Local Government Act 1972, a PCC may, after giving appropriate notice, require the parish or district council to take over its liability to maintain. Many PCCs have, of course, done just that. If the takeover occurred after the enactment of the 1991 Measure, one sees that, on the face of it, the liability which the relevant local authority assumed was in respect of the trees as well as the churchyard generally. It is less clear that, if it took over maintenance before 1991, that the duty so extends. As it is not sensible that there should be any difference between the duty of local authorities in respect of churchyards taken over before and after 1991, or that their duties in respect of a closed churchyard should be different from that of a PCC in a churchyard which has not been taken over by a local authority, it is likely that a court would give a broad interpretation to section 215. Consideration of the amendment to section 6 in 1995 might, however, suggest a narrower interpretation; and if a broader interpretation is preferred, it is an interesting example of the general law being modified by a Measure. That local authorities do consider that they have a duty in respect of churchyard trees in closed churchyards is evidenced by the fact that they may be petitioners for the felling of a tree.Footnote 58
The current edition of the Legal Opinions – the 9th edition, dating from 2020 – sets out section 6 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 without comment.Footnote 59 The implication is that the PCC has a duty in respect of trees in a churchyard which is not subject to limitation. It then explains how, in respect of a closed churchyard, those duties may be transferred to a local authority. It comments:
Thus, modern legislation has made it clear that the PCC has not retained any statutory powers or responsibilities in respect of the trees in a churchyard maintained by the local authority.
It clearly takes the view that the broader interpretation of section 215 is the correct one. It goes on to say:
The incumbent has retained ownership of the timber, but the proceeds of sale can only be used for maintenance of the church or the churchyard. In practice, most of the proceeds are absorbed by the cost of felling.
This is a summary of the common law position as regards ownershipFootnote 60 as affected by section 51(2) of the Ecclesiastical and Care of Churches Measure 2018. The implication is that the owner has no responsibility in respect of a dangerous tree which he or she owns; or one that is causing a nuisance. Considering the way the law has developed, as set out in this article, I would suggest that it is far from clear that the PCC or local authority in respect of a closed churchyard have responsibility for a dangerous tree or one that is causing a nuisance.Footnote 61 In the absence of any reported case in which a PCC or local authority has contested its responsibility for such a tree, it is likely that what is happening on the ground is that claims are settled pragmatically by insurers. As the context for the amendments to the law in 1991 becomes more distant, it will just be assumed that PCCs have responsibility for trees in ‘open’ churchyards; and local authorities in respect of ‘closed’ ones.Footnote 62 This represents a sensible outcome but, as has been seen, it rests on shaky foundations.
Keeping matters under review
One final aspect needs to be considered. The Inspection of Churches Measure 1955 required each diocesan authority to make a scheme providing for a quinquennial inspection of every church within the diocese by an architect. The 1991 Measure provided for inspections to be carried out by suitably qualified building surveyors as well as architects.Footnote 63 It also extended the required inspections to any tree in the churchyard (open or closed) belonging to the church in respect of which there is a Tree Preservation Order in force.Footnote 64 The requirement is odd in that it is not only trees that are subject to such orders which require surveying on a regular basis; and also in that neither an architect nor a building surveyor will have any special expertise in respect of trees. Not surprisingly, in its guidance, the CBC advises regular inspection of trees; this however will be at the expense of the parish and not, as with the quinquennial inspection, at the expense of the diocese.
Acknowledgements
A version of this article was presented to a meeting of the Ecclesiastical Judges Association on 25 November 2023. I am grateful to my colleagues for their comments; any errors remaining are, of course, my own.
