[Members] [Committee] Fwd: Legal Case on Trees vs Highways

[Tania Elliott]

Charles

Read this with interest. But the denouement of this case does not seem to bode very well regarding how a British judge might interpret European Environmental Law. Incidentally, part of the fall out of Brexit will be that Europe will no longer be there to enforce environmental laws against the changing winds of British politics. Would it not be a good idea to have a word with Professor Macrory?

Tania

 

Tania Elliott

Secretary FeCRA

Please reply to: secretary at fecra.org.uk <mailto:secretary at fecra.org.uk> 

Federation of Cambridge Residents’ Associations

http://fecra-web.blogspot.co.uk/

 

From: Committee [mailto:committee-bounces at fecra.org.uk] On Behalf Of Charles Nisbet
Sent: 17 June 2016 22:55
To: Barbara Taylor <barbara at miltonroadra.org>; MRRA Committee <committee at miltonroadra.org>; HurstParkEstateRA <committee at hpera.co.uk>; FeCRA Committee List <committee at fecra.org.uk>; Angela Chadwyck-Healey <angela.ch at dwyck.com>; Penny Heath <phpj at btinternet.com>
Subject: Re: [Committee] Fwd: Legal Case on Trees vs Highways

 

I have read it quickly, and it seems that it could be used to support arguments for and against the City Deal proposals.  We would need to tread very carefully before invoking this as a precedent, and there would be a lot of expensive legal argument about what constituted 'maintenance' and 'change' and 'consultation'.  But yes, please thank Mr Guy for thinking of us.

Charles

 

On 17/06/2016 19:09, Barbara Taylor wrote:

Hi

FYI

Contact via the MRRA website.  Very useful article for all our arterial roads and Cambridge.  What do you all think?

I'll reply to Mr Guy thanking him for forwarding the article.

Barbara



-------- Forwarded Message -------- 


Subject: 

Legal Case on Trees vs Highways


Date: 

Fri, 17 Jun 2016 17:05:12 +0100


From: 

Jonathan Guy  <mailto:jo.guy at mac.com> <jo.guy at mac.com>


To: 

contact at miltonroadra.org <mailto:contact at miltonroadra.org> 



Dear Folks, 

 

You may have seen this, but if you haven't have a read it has some relevance to the Milton Road issue.

 

Jo Guy

 


Maintaining highways versus tree preservation


 <http://www.endsreport.com/article/52497?printFriendly=true> 

By Richard Macrory, ENDS Report 496, June 2016 <http://www.endsreport.com/51935>  11 May 2016 10:58 BST 

A council’s duty to maintain highways gives it the right to fell trees and takes priority over an obligation to preserve them, a court has ruled. The case has a number of wider implications

Richard Macrory, professor of environmental law, University College London <http://www.endsreport.com/images/52497.jpg>  Environmental disputes often arise when public authorities are faced with competing duties. R (on the application of Dilner) v Sheffield City Council and Amey Hallam Highways Ltd (Administrative Court, High Court [2016] EWHC 945, 27 April 2016) provides a valuable analysis of the legal position of local authorities engaged in road maintenance where this inevitably involves the destruction of urban trees with a strong amenity function.

The background to the challenge by local residents was Sheffield City Council’s decision in 2008 to outsource road maintenance, including tree removal, to a private contractor. The council had been concerned that the poor condition of the roads was damaging the city’s reputation, and in August 2012 launched a programme for repairs and maintenance under the name Streets Ahead. 

Some 36,000 trees were within the city highways. The challenge concerned the amount of mature trees that were to be removed, even though the contractors’ agreement required removal only in carefully defined circumstances and that these trees should be replaced. Residents argued that alternatives to removing the tress had not been fully addressed.

Mr Justice Gilbart acknowledged the genuine concern of residents: “A tree which is mature, or over-mature, and is required for removal for a proper purpose related to repair, can still be a most attractive tree which adds to the ambiance of the locality, and to the pleasure which its residents take in the area’s appearance.”

But he stressed that the council’s legal duties in relation to highway maintenance had to be considered. Under the Highways Act 1980 an authority is obliged to “maintain” the highway, with the term “maintenance” defined to include “repair”. The act gives powers to members of the public to enforce this duty.  The maintenance duty is contrasted with the improvement of highways, which is a power rather than duty.

When it came to trees, the court considered that the Highways Act places a duty on the authority to remove a tree that is a source of danger, obstruction to traffic – for  both pedestrians and vehicles – or where this was necessary to enable repair to take place.

The legislation did not relieve the authority of their duties where the aesthetic value of the trees was concerned: “The starting point for considering whether a tree within a highway should be retained or removed is its effect or otherwise on the role of that street as a highway — ie to facilitate passage and repassage, not to facilitate the creation, preservation or enhancement of an attractive environment.”

The claimants had argued that the work involved in removing the trees amounted to development requiring planning permission. The court noted that the definition of development in the Town and Country Planning Act 1990 included engineering operations, but then excluded works required for the maintenance or improvement of a highway. Works with significant environmental impacts that were not exclusively for maintenance, however, were included.

The claimants tried to argue that works involving substantial repair fell outside the concept of maintenance, and therefore would potentially require planning permission, but Mr Justice Gilbart robustly rejected the argument.

The court also rejected any argument that the felling of trees themselves would require consent. Felling or lopping of trees within a conservation area may require consent, but the court held the relevant regulations required no such consent where this was necessary for highway maintenance and repairs, or to remove sources of danger or obstruction.

The claimants then argued that whatever the position of national law, the EU Environmental Impact Assessment (EIA) Directive was applicable. This applies to specific classes of projects listed in the directive, including road schemes, and provides that “any change or extension” to such projects that might have significant environmental impact were also subject to the directive.

The court rejected the argument that the concept of change or extension in the directive was meant to cover works of maintenance and repair. The repair works might inevitably involve some differences in the final result but that did not change their status to one of change or extension.

As Mr Justice Gilbart noted: “The fact that it may produce something different in fact is not material, provided that it constitutes works of maintenance (including repair). For no one could ever expect that a road, once built, would never require maintenance or repair, nor that such maintenance or repair could not involve the replacement of worn-out or damaged parts of the highway, be they kerbs, tarmac, drains, base course or other features of a road and its pavements. Nor would anyone rationally expect that when the time comes round for repair, that the same kind of constituent parts, for example, culverts, drains, kerbstones etc, would still be available in unchanged form and appearance, or that some innovation had not altered the specification to be used.”

Finally, the court considered the question of whether there had been, from a legal perspective, adequate public consultation of the Streets Ahead programme and the decision to award the repair contract to Ameys. The court noted that there was no general obligation under the Highways Act to consult on the Streets Ahead scheme. Only in cases of highway improvement involving significant environmental impact were the planning legislation and consultation requirements engaged.

The key question then was whether in this particular case the city council had made sufficient representations that would raise a legitimate expectation by the public that they were to be fully consulted. Mr Justice Gilbart examined in detail the procedural and factual background. Although he felt the council might have been more adroit in predicting potential opposition, he considered that the council had not raised any legitimate expectations as to consultation.

The Dilner case is a warning to environmental claimants to consider carefully the implications of potentially conflicting or overriding legal duties on public authorities. The case also contains a significant discussion of the concept of “change” under the EIA Directive, an analysis that will have wider implications for other types of projects falling within the scope of the directive. 

Richard Macrory is professor of environmental law at University College London

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