A 1950s cottage neighbouring the churchyard of this Grade II-listed, 19th century church was showing signs of subsidence caused by trees, one of which was a mature and healthy lime tree in the churchyard. The parish's insurers were satisfied that an actionable nuisance had occurred, and that removal of the tree was reasonable abatement; the cottage's insurers had formally requested its removal. Reluctantly, the PCC petitioned for a faculty for its removal, out of neighbourliness and to mitigate any future risk to the cottage; and the DAC, noting the unusual circumstances, did not object. Letters of objection were received, citing aesthetic and environmental concerns. Pursuant to rule 9.1 of the Faculty Jurisdiction Rules 2015, special notice of the petition was given to the owners of the cottage and the church's insurers, neither of whom objected.
The court referred to the CBC's document ‘Works to Trees in Churchyards’, which explains the conditions under which a tree, above the size specified in List A8(1), meets the criteria of ‘dying or dead’ or ‘dangerous’ under List B7(2). Where these criteria are not met, the felling of the tree requires a faculty. The court referred to Re St Leonard, Monyash [2017] ECC Der 3, where a faculty had been granted for the felling of a healthy lime tree in order to protect neighbouring property.
As the answer to the first Duffield question was negative, the question for the court was whether sufficiently good reason had been shown to displace the presumption against change – that presumption giving due weight to the climate emergency. The court considered that it should not question the expert advice received by the church's insurers, or the view taken by the PCC as custodian of the parish's finances, which would bear the cost of alternative remediation such as underpinning.
The court concluded that it should not stand in the petitioners’ way, and granted the faculty. In doing so, it emphasised that the faculty was permissive, and did not have to be implemented at once or at all. The petitioners would want to satisfy themselves that there was no immediate prospect of the cottage being demolished and replaced with a more substantial and modern building before the tree was felled. Conditions included compliance the Wildlife and Countryside Act as to the timing of any felling; that the tree was not to be felled until after, or at the same time as, the felling of other trees (outside the churchyard) identified as contributing to the subsidence; and the planting of at least one replacement tree.
