¹ For a general survey of the topic, see Mynors, C et al, The Law of Trees, Forests and Hedges, 3rd edn (London, 2023), chapter 28Google Scholar.

² In legal theory, churches and churchyards have always been subject to regulation by the faculty system; however, the modern system developed gradually, the earliest recorded faculties dating from the seventeenth century.

³ This is printed in 1 Statutes of the Realm (1810) at p 221 among the statutes of uncertain date; Strachy v Francis (1741) 2 Atk 217 cites it as being from the 35th year of the reign of Edward I, which would give it a date of 1306–7. The earliest surviving text is that printed in Berthelet’s Magna Carta alijs antiquis statutis (1542). The writer has not been able to trace the location of the original text (if it still exists) or to discover what might have been the reasons for the enactment of the provision.

⁴ Thus in the printed text (jur scripti). The text as printed in 1 Statutes of the Realm suggests that this may be a misreading of iur[is] sacri (sacred law).

⁵ The translation is from Rastall’s English Collection (1603).

⁶ The churchyard and trees would have been vested in the rector: see Greenslade v Darby (1867) 3 QB 421 (who might have been a lay rector or the incumbent). The status of the rector in Strachy v Francis is not stated. The word translated in the statute of Edward I as parson is rector; the context suggests that a resident incumbent is meant.

⁷ The plaintiff in this action was the patron. For an earlier example of proceedings to restrain the felling of trees in a churchyard see Bellamie (1615) 1 Rolle 255; and, earlier still, Archbishop Warham can be observed restraining the felling of churchyard trees (see Wood-Legh, KL (ed), Kentish Visitations of Archbishop William Warham and his Deputies, 1511–1512 (Kent, 1984)Google Scholar [fo 69r] at 128). Churchyard trees evidently had an importance in the medieval and early modern economy which it is not easy at this distance fully to appreciate.

⁸ Under the Burial Act 1855 churchwardens became liable to a statutory duty to maintain a closed churchyard ‘in decent order’. Under Canon F 13 (which dates from 1964 (Province of Canterbury) and 1969 (Province of York)), there is a general requirement (not imposed on any particular person) that ‘churchyards should be kept in such an orderly and decent manner as becomes consecrated ground’. The duties of churchwardens such as they were passed to the PCC by virtue of section 4 of the Parochial Church Council (Powers) Measure 1921. As to the duties of PCCs in respect of churchyards see further below.

⁹ The provision proceeds on the sensible basis that it was the person who was the incumbent who was concerned with the management of trees in the churchyard; and not the rector as such (i.e. potentially a lay rector). In any event, where there was a lay rector, the presumption from general practice and usage was that the trees would form part of the vicar’s endowment (see Greenslade v Darby (1868) LR 3 QB 421).

¹⁰ The section made provision for the proceeds of sale of any timber not used in the repair of the church. The statute of Edward I was not formally repealed at that time; in due course it was repealed – along with other obsolete statutes – by the Statute Law Revision Act 1958.

¹¹ Thus, for example, under the 1972 Measure the consent of the DBF was not required in a case where there was immediate danger to the general public.

¹² As to the significance of this date, see further below.

¹³ 1842 (9th edition).

¹⁴ 1895 (2nd edition).

¹⁵ (4th edition); see volume 14.

¹⁶ See footnote 13 to paragraph 1315 (p 734). The third (1955) and earlier editions are silent on the matter.

¹⁷ It is not clear what is here meant. Insofar as the Diocesan Parsonages Board could not recover the cost of necessary felling from the sale of the timber, it might have been thought that a responsibility better placed upon the PCC was being placed upon the Board; but that cost would not, on the face of it, have been financially embarrassing.

¹⁸ Paragraph 315. Emphasis added.

¹⁹ In 1984, this provision was contained in section 60 of the Town and Country Planning Act 1971; it is now contained in section 198(1) of the Town and Country Planning Act 1990.

²⁰ In 1984, this provision was contained in section of the Town and Country Planning Act 1971; it is now contained in section 211 of the Town and Country Planning Act 1990. There is further protection accorded to some trees under the secular system (i.e. on grounds other than the interests of amenity): see Mynors et al (note 1), chapter 20. Paragraph 193(c) of the National Planning Policy Framework advises that planning permission should not be given if it involves the loss of a veteran tree save for wholly exceptional reasons. However, veteran trees do not enjoy any secular protection as such; a veteran tree will generally only enjoy protection if its amenity value has caused it to be subject to a tree preservation order.

²¹ Noting, of course, that the felling, lopping or topping of a tree that is not subject to a tree preservation order nor in a conservation area would only be subject to control under the faculty system.

²² Note that sub-sections (1) and (2) were amended by section 13 of the Church of England Miscellaneous Provisions) Measure 1995 to read:

The amendment was explained in the 209th Report by the Ecclesiastical Committee of Parliament (HC Paper 79 – II; HL 645): ‘Clause 13 amends section 6 (1) of the Care of Churches and ecclesiastical Jurisdiction Measure 1991 so as to make it clear that the responsibility for trees in a churchyard belongs to the parochial church council when that body is responsible for the maintenance of the churchyard (maintenance may be transferred to another body, for example when the churchyard is closed). This was the intention of section 6 as originally enacted but doubt has been expressed as to whether the section achieved what was intended. The amendment is therefore made for clarification’. The amendment does not bear upon the extension of the faculty jurisdiction to trees. Sub-sections (1) and (2) of section 6 of the 1991 Measure are now sub-sections (1) and (2) of section 51 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018.

²³ Emphasis added.

²⁴ This was the second edition of Newsom (1982) referred to above.

²⁵ The 200th Report by the Ecclesiastical Committee of Parliament (HC Paper 49 – II; HL 419) sheds no light on whether and, if so, how it was intended that the faculty jurisdiction be extended to trees.

²⁶ The definition of ‘affix’ in the The Concise Oxford English Dictionary, 12th edn (2011) is ‘attach or fasten to something else’.

²⁷ SI 1992 No. 2882.

²⁸ See the Faculty Jurisdiction Rules 2000 (SI 2000 No. 2047).

²⁹ See paragraph 3 (4).

³⁰ See Form No. 16.

³¹ SI 2015 No. 1568.

³² In R (N) v Lewisham LBC [2015] AC 1259, Lord Carnwath said ‘… settled practice may, in appropriate circumstances, be a legitimate aid to statutory interpretation. Where the statute is ambiguous, but it has been the subject of authoritative interpretation in the lower courts, and where businesses or activities, public or private, have reasonably been ordered on that basis for a significant period without serious problems or injustice, there should be a strong presumption against overturning that settled practice in the higher courts’ (see para 95). This is a controversial view, doubts about it being expressed by Lord Neuberger and Lady Hale (see paras 148 and 168). Moreover, section 11 of the 1991 Measure has never been the subject of an authoritative interpretation. However, as evidenced by a steady stream of reported cases since 2001, Consistory Courts have been granting and refusing faculties in respect of churchyard trees. If the matter ever arose, it is surely likely that a court would in practice be influenced by this settled practice.

³³ Note that in respect of tree works included in List B, the archdeacon has a discretion. In practice, its exercise is unlikely to be problematic.

³⁴ Hereafter where reference is made to the felling of a tree, it should be borne in mind that consent under faculty may also be needed for loping and topping (but subject to the exception to requirement in respect of List A and B works).

³⁵ Worcester Consistory Court (6 November 2001).

³⁶ See paragraph 42 of his judgment.

³⁷ That is, is not subject to a tree preservation order.

³⁸ See paragraph 43.

³⁹ [2010] Fam 146.

⁴⁰ See paragraph 23.

⁴¹ All DACs as a matter of practice have a tree adviser to assist them.

⁴² The local planning authority did not object to the loss of what was evidently a fine sycamore. However, this may have been because it had a policy of leaving consideration of trees in churches to the ecclesiastical authorities.

⁴³ Habitats receive limited secular protection but such protection as a tree enjoys thereby would not be trumped by the grant of a faculty.

⁴⁴ As noted above (see note 20), a veteran tree will often be the subject of a tree preservation order. However, this will be by virtue of its contribution to amenity and not by virtue of its age.

⁴⁵ [2019] ECC Win 1, paras 8–9.

⁴⁶ See e.g. Dancer, , Holligan, and Howe, (eds), UK Earth Law Judgments: Reimagining law for People and Planet (Oxford, 2024)CrossRefGoogle Scholar.

⁴⁷ In Re St Philip and St James, Whittington [2017] ECC Wor 1, Mynors Ch declined to grant a faculty for a church extension which would have endangered a veteran yew. There is no easy way of deciding how valuable a tree must be before it is appropriately held to be more important than the mission and ministry of the church (as sought to be delivered through the construction of a new building).

⁴⁸ That is, the guidance given by the Court of Arches in Re St Alkmund, Duffield [2013] Fam 158.

⁴⁹ See e.g. Re St Mary, Chithurst [2020] ECC Chi 1; and Re All Saints, Marcham [2020] ECC Oxf 1 (considered further below)

⁵⁰ See section 1(a) of the Care of Churches and Ecclesiastical Jurisdiction (Amendment) Measure 2015. The duty is now found in section 51(3) of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018.

⁵¹ [2020] Ecc Oxf 1.

⁵² Dating from the 13th century, it was largely rebuilt in 1837–8.

⁵³ [2020] Ecc Oxf 1, para 13.

⁵⁴ Ibid, para 14.

⁵⁵ Ibid.

⁵⁶ See note 7 above.

⁵⁷ The Legal Opinions do not express any view about a tree causing a nuisance.

⁵⁸ Re St Mary, Chithurst was such a case. In Re Christ Church, Lye (Worcester Consistory Court; 6 October 2015) Mynors Ch said ‘… the control of the trees lies with [Dudley Metropolitan Borough] Council, which in turn means that it is liable in any action for nuisance’.

⁵⁹ The Opinion in question was written in 2001 and revised in 2003; when updated it will obviously refer to section 51 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018.

⁶⁰ Note, however, that the owner of a tree might be a lay Rector.

⁶¹ The 6th edition of the Legal Opinions (1985) (i.e. the last before 1991) identified that the PCC, incumbent, local authority or bishop (in a vacancy) might be liable as occupier in respect of trees (among other things) but did not pursue the matter further (see pp 36a and 36b).

⁶² In the case of a closed churchyard, it might be argued that the PCC has a duty to alert the local authority of e.g. the existence of a dangerous tree. If it has actual knowledge of such a tree it is to be presumed that it would do so.

⁶³ See paragraph 2 of Schedule 3 to the 1991 Measure.

⁶⁴ See paragraph 3 of Schedule 3 to the 1991 Measure.