Street Trees

DEFRA published its Protecting and enhancing England’s trees and woodlands consultation paper on 30 December 2018, with a deadline of 28 February 2019 for responses. The proposals include imposing new statutory duties on local authorities:

⁃ “a duty to consult on the felling of street trees

⁃ “a duty to report on tree felling and planting”

Presumably these are intended to be included in the forthcoming Environment Bill and they could justifiably be known as “Sheffield’s Law”. After all they of course have their roots in the peculiar saga there, where the city council and its PFI contractor Amey have been engaged in systematic felling of roadside trees at an unprecedented scale.

I reported in my 17 December 2016 Trees In Court: A Festive Special blog post on the the late Gilbart J’s rejection, in R (Dillner) v Sheffield City Council  (27 April 2016) of a local resident’s challenge to that process. The judge commented: “It may be that those who will be disappointed by the terms of this Judgment will want to see a different legislative regime in place. That is a matter for Parliament, and not for this Court.

The continued felling led to significant protests, with arrests, curiously, made under section section 241 of the Trade Union and Labour Relations Act 1992. (The Independent Office for Police Conduct subsequently found in August 2018 that the arrests and detention were inappropriate and in December 2018 compensation payments were awarded).

The commitment in the Conservative Party’s manifesto in May 2017 surely specifically had the Sheffield situation in mind:

In addition to the 11 million trees we are planting across our nation, we will ensure that 1 million more are planted in our towns and cities, and place new duties on councils to consult when they wish to cut down street trees.” (my emboldening).

On the back of the Gilbart J ruling, an injunction in relation to continuing protests was ordered by Males J in Sheffield City Council v Fairhall and others (15 August 2017) in the following terms:

“Accordingly I order that the three remaining named defendants must not:

1.
(1) enter any safety zone erected around any tree within the area shown edged red on the plan which will be attached to the order (the area of Sheffield City);
(2) seek to prevent the erection of any safety zone;
(3) remain in any safety zone after it is erected;
(4) knowingly leave any vehicle in any safety zone or intentionally place a vehicle in a position so as to prevent the erection of a safety zone; or
(5) encourage, aid, counsel, direct or facilitate anybody else to do any of the matters in paragraphs 1 – 4 above including by posting social media messages.

2. There will in addition be an order in the same terms against persons unknown being persons intending to enter or remain in safety zones erected on public highways in the city of Sheffield. Such an order is appropriate in accordance with the principle established in Hampshire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator Site [2003] EWHC 1738 (Ch).”

Like Gilbart J, Males J distanced himself from the wider issues:

“I must emphasise that this judgment deals solely with the legal question whether the council is entitled to an injunction. That will include consideration of whether as a matter of law the council is entitled to exclude members of the public from safety zones around trees so that those trees can be felled and whether or to what extent those who object to this course are entitled to maintain a presence within safety zones in order to prevent the work from being carried out. However, I express no view, one way or the other, as to the merits of the council’s tree felling programme or the objectors’ campaign. Those are social and environmental questions which are politically controversial and can only be resolved in a political forum. They are not a matter for this court

Following the June 2017 general election, Michael Gove had of course been brought back into the Cabinet as Secretary of State for Environment, Food and Rural Affairs. In March 2018 he was reported by the BBC as having “accused Sheffield City Council of “environmental vandalism” and promised to do “anything required” to end its controversial tree-felling programme.

Felling paused the day after, although the city council renewed its injunction in July 2018, by way of a High Court ruling (His Honour Judge Robinson, 12 July 2018)

The Yorkshire Post reported on 13 December 2018 that the city council now announced a revised tree management strategy, reducing significantly the amount of felling proposed.

So back to the DEFRA consultation proposals.

Street trees‘ are defined as “managed trees lining the highway within the urban environment“. The duty to consult would not apply to other urban trees such as parks or open spaces.

The idea is that the “local authority” (presumably the local highway authority, although this is not made clear – eg presumably TfL in London in relation to the TfL network?) would consult “on every tree proposed for felling during a four week closed consultation period. A notice inviting consultation to be placed on the tree, letters sent to local residents in close proximity to the tree (100m2). If more than 50% of respondents in the closed consultation disagree with the proposal this will trigger a full public consultation.” Full consultation appears to mean “a notice published in the town hall and online“.

Is this workable? Assuming that there would often need to be a full consultation process, how long would this all take, bearing in mind that the consultation responses would then need to be conscientiously considered by the authority, presumably at a relevant committee meeting held in public with officer’s report and so on, before a legally robust decision could be taken?

There would be exemptions, the scope of which could well lead to dispute:

“1. Dangerous: Tree needs to be felled because it presents an immediate danger and work is urgently needed to remove that danger. Trees that immediately affect the operational use of the footway by people – forcing them to use the carriageway – are considered dangerous for the purposes of this policy.

2. Responding to a pest or disease instance:Removal of a tree is a critical partof the implementation of a management or control programme, following notification by regulatory authority in response to a pest or disease instance.

3. Dead.

4. Damaging:Tree needs to be felled because it is causing significant damage to
the apparatus of a statutory undertaker (such as gas, electricity or water) where urgent access is required for repair; or tree needs to be felled because it can be demonstrated that it is causing significant damage and threatens the integrity of a footpath or carriageway to such an extent that it presents an imminent danger.

5. Young Trees Damaged/Failed:Young trees (up to fifteen years old) which will be replaced within two years. The position of the tree has already been established. Consultation could lead to discussion that undermines that decision when replacement is essentially a maintenance management activity

There is a further complication:

“Trees designated as having special historic or cultural significance would automatically be subject to wider public consultation. To meet this definition trees would have to meet one of the following criteria. The tree may be:

• culturally, historically, ecologically significant – such as veteran trees

• linked to a person or event that is culturally or historically significant
For trees that meet this criteria an extraordinary measure/action or level of resource can be taken or dedicated to its preservation. The local authority may initially be unaware of this significance so a full consultation where significance is suspected or raised as an issue is essential
.”

So yet again we are faced with quite a complex, or at least fiddly and fine grained, regime to deliver on a superficially nice idea – and to what end? If Sheffield City Council had followed these procedures the outcomes could well have been the same.

I also find it strange that there is no mention in the document of the town and country planning regime, for example the role of tree preservation orders and the protection provided to trees in conservation areas. Would not amendments to the planning regime not have been more logical?

The separate proposed duty to report on tree felling and replanting raises a further issue. The document is silent about the intended frequency of reporting but let’s assume it is to be annual. This reporting will not just cover street trees but will be much wider:

Local authorities would be required to record on felling and planting activity for which they are both directly and indirectly responsible, including trees which are felled as part of planning decisions.”

So could we see “local authorities” (by which I assume is meant local highway authorities) have to collect data as to how many trees are to be felled as a result of planning decisions by the local planning authority (that are not even on highway land), or will this only apply to unitary authorities? More thinking required!

I have managed to avoid mention of the separate, much more complex, set of proposals within DEFRA’s other current consultation, on biodiversity net gain (2 December 2018). That also has some major potential implications – these days planners’ eyes need to be on DEFRA as much as MHCLG it seems to me.

Simon Ricketts, 5 January 2019

Personal views, et cetera

Photo courtesy of the Woodland Trust

Trees In Court: A Festive Special

Trees stir emotions. Dwarfing us in their scale and their natural lifespan, they are integral to, define and inspire our built and natural landscapes. Their leaves connect us with the changing seasons. But they can be inconveniences: their roots, their debris, sometimes even their very presence.

The £1m lime tree
Who would spend £1m litigating over problems alleged to arise from a single lime tree in a suburban London Street? This is a recent piece from The Lawyer. HHJ Edward Bailey’s 29 July 2016 county court judgment  refusing the owner of the tree (a subsidiary of Grainger Trust plc) access over the neighbouring lawyer’s property (because the answer is of course a lawyer) under section 1 of the Access to Neighbouring Land Act 1992, to prune it, runs to 27 pages. All of the papers relating to the litigation, including transcripts and evidence, are at www.disputewithgrainger.com, a website created for the purpose by the neighbour. A £100,000 interim payment on account of his costs was due to be paid by Grainger yesterday. 
Sets the bar pretty high for future neighbour disputes it must be said. 
Trees & PFI
Where does the line of least resistance lie where a local authority’s PFI contractor faces increased highways maintenance costs due to the presence of trees?
Sheffield City Council, abetted by its contractor Amey, has been engaging in a systematic programme of tree felling and replacement along its highways. 

A somewhat speculative challenge was brought to the process by local residents in R (Dillner) v Sheffield City Council  (Gilbart J, 27 April 2016), following an interim injunction that was granted at short notice.

Gilbart J is in lyrical form, starting his judgment with the following background:

“Sheffield is one of the great cities of Northern England. Parts of it lie within the Peak District, which abuts its western aspect. It lies where several rivers and streams (the Rivers Don, Sheaf, Loxley, Rivelin, and Porter, Meers and Owler Brooks) flow eastwards off the Pennines. Many of its roads and streets (and especially in the suburbs running westwards and south-westwards from the City Centre) have trees planted along them, in the verges or other land within the highway. Like many of the great cities of the north of England, it suffered during the deindustrialisation of the late 20th Century and the financial stringency endured by local authorities over the last 30 years or more. The upkeep of its roads and streets were not immune to the testing climate that created for local authorities, and a backlog of maintenance developed.

It is in the nature of highway trees which are well established that they are intrinsically attractive (save in unusual cases), but also that, if allowed to grow unchecked, they cause problems to the proper maintenance of the roads, verges and pavements in which they sit or which they abut. Thus, the loss of a tree may be seen as regrettable in visual terms, but it may be required if the highway is to be kept in repair. The background to this case concerns the way in which Sheffield City Council (“SCC”) has sought to deal with the backlog of repairs, and in particular of how it has dealt with the presence of trees on its roads and streets”

The grounds of challenge followed familiar territory: inadequate consultation; the need for environmental impact assessment, and engagement of the decision maker’s duty to pay special attention to the desirability of preserving and enhancing the character of conservation areas.

The grounds were rejected:

– “provided the felling or lopping of the tree is carried out in pursuance of [a highways authority’s duty to maintain (and thus repair) [the highway], there is no requirement for consent to fell the tree “. 

– “while there is a requirement in those domestic Regulations which apply the EU Directives for environmental assessment in the case of trees, it only applies to projects of deforestation on sites of at least 1 hectare in size (0.5 ha in a National Park); see Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999 Schedule 2 paragraph 2. This project cannot be called deforestation”

– It “follows from the above that: 

(a)  the execution of works in the highway to repair it does not constitute development and therefore requires no planning permission; 


(b)  the removal or lopping of trees requires no planning permission in any event; 


(c)  the removal or lopping of highway trees in a Conservation Area requires no consent under s 211 TCPA 1990 if carried out in pursuance of the duty of the highway authority to maintain the highway, keep it in repair, and free of sources of danger or causes of obstruction; 


(d)  there is therefore no question of a development consent being required for the works; 


(e)  no planning function arises relevant to s 72 LBCAA 1990; 


(f)  at most, the fact that a tree could contribute to the appearance and character of a Conservation Area could be a material consideration. There is no evidence at all that Amey and SCC failed to take it into account.

Gilbart J’s closing comments:

“I repeat that nothing in this Judgment is to be read as criticising the residents of Sheffield for seeking to protect the trees in their streets and roads, whose presence many of them appreciate so much. But as with many matters, such an understandable and natural desire must be tempered by acceptance of the important duties cast on the highway authority to maintain those roads and streets in good repair. It is unfortunate in the extreme that those advising the Claimant and others who object have failed to address both sides of the argument, and even more so that the claim was advanced, and the injunction sought, without any proper analysis on their behalf of the statutory and legal context. It may be that those who will be disappointed by the terms of this Judgment will want to see a different legislative regime in place. That is a matter for Parliament, and not for this Court.
So will Parliament now conduct a root and branch review?
Andrew Lainton’s February 2016 blog post, written when the interim injunction was granted, is, as always, worth reading.
Sycamore vs the tree of heaven
In determining in the Sheffield case that the decision by an authority to fell a tree does not engage the conservation area special duty in section 72(1) of the Listed Buildings and Conservation Areas Act 1990, Gilbart J had cited R (McClennan) v London Borough of Lambeth  (HH Judge Sycamore, 16 June 2014), which concerned Lambeth’s proposals to fell a tree of heaven at the rear of the grade II listed Durning Library building in Kennington Lane, within Kennington conservation area – with the objective, said Lambeth, of preventing structural damage to the listed building. Whilst section 72(1) wasn’t engaged, the judge held that Lambeth’s cabinet had failed to take into account a material consideration, namely that the tree was situated in the conservation area. The decision was quashed. Lambeth subsequently carried out public consultation but I think I know where the tree has gone.

Forest Hill Park, Labour In Vain Road
is the address in Wrotham, Kent of a caravan site which has been the subject of a TPO saga. Following the felling of various protected trees, enforcement proceedings were brought and court action was settled on the basis of an undertaking given by the defendants to cease the felling. The felling resumed, the council started proceedings for contempt of court and the defendants applied to release the undertaking, on the basis that they could fell the trees in reliance on a 1983 planning permission for “development … and continuation of use of land as caravan site”. The question that came to the Court of Appeal in Barney-Smith v Tonbridge and Malling Borough Council  (Court of Appeal, 9 December 2016) was whether the exemption from the need for consent, where felling was “immediately required for the purpose of carrying out development authorised by” a planning permission, was satisfied. The court, not unsurprisingly, held that the answer was no – even though the planning permission could have been implemented in such a way as would have necessitated the tree felling, it could be implemented in a manner which left the trees untouched and therefore the exemption did not apply.
The Hampstead Heath dam

R (Heath & Hampstead Society) v City of London  (Lang J, 28 November 2014) concerned the Hampstead Heath dam project, the decision by the City of London to approve and proceed with proposals for reservoir safety works to the ponds on Hampstead Heath. The claimant regarded the proposed works which would entail the loss of over 80 trees, as “damaging, unnecessary and over-engineered”. But Lang J held that the only legal consideration under the Reservoirs Act 1975 is public safety and that the works would not be in breach of the restrictions in the Hampstead Heath Act 1871 which requires that the City of London shall forever keep the Heath “unbuilt on” as they would fall within exceptions for drainage and improvement.  

Festive Litigation
Whatever your religion or non religion, enjoy the break (if I don’t blog again in the meantime). In the US, the constitutional status of the Christmas tree reached the US Supreme Court in Court County of Allegheny v. American Civil Liberties Union (3 July 1989). The combined display outside local authority offices of a Christmas tree, Menorah and sign saluting liberty was sufficiently secular so as not to offend the establishment clause in the First Amendment of the constitution, as opposed to a nativity scene inside a court building, which was held to be unlawful. What would the Daily Mail have to say about any UK Supreme Court justices who made such a ruling one wonders? I gather that since then the US Supreme Court has remained decidedly unfestive – according to one US commentator it has since declined to intervene in cases concerning: a Menorah and Christmas nativity scene combined with Frosty the Snowman and Santa Claus; an attempt to have Christmas decertified as a federal holiday, and efforts to allow Christmas music to be played over the intercom at public schools.


What’s a lawyer to do? The High Court rises on 21 December and the new term starts on 11 January. Oh well, put another log on the fire. 
Simon Ricketts 17.12.16
Personal views, et cetera