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

Heritage Law Update: What Goes Around Comes Around?

A brief update on what has been happening in heritage law over recent months. 
The section 66(1) & 72(1) tests in the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990

First, aptly, some old news. 

Section 66(1) requires decision-makers, in “considering whether to grant planning permission for development which affects a listed building or its setting” to “have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses”.

Section 72(1) requires decision-makers with respect to any buildings or other land in a conservation area to pay “special attention…to the desirability of preserving or enhancing the character of that area”.

The NPPF  has advice on heritage decision-making at paragraphs 132 to 135. 

Until the Court of Appeal’s welcome 3 December 2015 ruling in Mordue  we planning lawyers were getting in a right pickle. As a result of Sullivan LJ’s Court of Appeal judgment in Barnwell  and Lindblom J (as he then was) in Forge Field  the law appeared to be that (despite any reference to “harm” in the legislation itself and indeed the expression not being defined in the NPPF) decisions were liable to be quashed if the decision maker had not articulated that it had 

– considered whether substantial or less than substantial harm was likely to arise to a listed building or setting of a listed building or to the character of a conservation area

– in the event of any finding of harm, balanced any harm against any counterveiling planning benefits, giving “considerable importance and weight” to the finding of harm (caselaw relied on by the Court of Appeal in Barnwell)

– in the event of any finding of substantial harm, taken into account the NPPF advice that consent should be refused “unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss” or at least one of four specified criteria are met (para 133, NPPF).  

– in the event of any finding of less than substantial harm, given “considerable importance and weight” to that finding (a “strong presumption against planning permission being granted” (Lindblom J in Forge Field), giving greater weight to other considerations, weighing “the harm against the public benefits of the proposal, including securing its optimum viable use (para 134, NPPF).

All of this is still good advice but the risk of a decision being quashed simply because of inadequate incantation of all of these tests is now reduced. The Court of Appeal in Mordue helpfully restored some sanity (albeit with a point deducted for using the word “fasciculus”):

“Paragraph 134 of the NPPF appears as part of a fasciculus of paragraphs, set out above, which lay down an approach which corresponds with the duty in section 66(1). Generally, a decision-maker who works through those paragraphs in accordance with their terms will have complied with the section 66(1) duty. When an expert planning inspector refers to a paragraph within that grouping of provisions (as the Inspector referred to paragraph 134 of the NPPF in the Decision Letter in this case) then – absent some positive contrary indication in other parts of the text of his reasons – the appropriate inference is that he has taken properly into account all those provisions, not that he has forgotten about all the other paragraphs apart from the specific one he has mentioned.

Explaining away Barnwell, the Court of Appeal put it like this:
“Sullivan LJ’s comments….were made in the context of a decision letter which positively gave the impression that the inspector had not given the requisite considerable weight to the desirability of preserving the setting of the relevant listed buildings, where as a result it would have required a positive statement by the inspector referring to the proper test under section 66(1) to dispel that impression”.
In the wake of Mordue we have since had:

R (Blackpool Borough Council) v Secretary of State  9 May 2016, where Kerr J found on the facts that an inspector had failed to apply the NPPF tests in the case of proposed major works that the inspector concluded would cause “little harm” to the special architectural or historic interest in a listed synagogue, including there being, as in Barnwell, a series of signposts in the decision letter that led to the judge’s conclusion. 

Boden v East Staffordshire District Council  27 May 2016, where Coulson J found on the facts that errors in articulating the NOPF test (including the common one of describing harm as “minor” without explaining where that sits on the harm/substantial/less than substantial spectrum) did not vitiate the council’s decision. 

So we still need to be alert for signs that the right tests haven’t been applied but there is again room for common sense.

No 1 Poultry


Barnwell, Forge Field and Mordue all refer back in their discussion to Save Britain’s Heritage v Number 1 Poultry Limited [1991] 1 WLR 153, HL, the leading case on the standard of reasons to be expected where a planning decision is taken granting permission for development which has a detrimental impact upon listed buildings. The then Secretary of State had overturned an inspector and approved Peter Palumbo’s redevelopment scheme designed by James Stirling which entailed the demolition of eight grade II listed buildings (I remember them well, just across the street from the Cheapside branch of Our Price records). A challenge by Save Britain’s Heritage was rejected by the House of Lords: any inadequacies in the Secretary of State’s reasoning were not such as to substantially prejudice potential objectors in that they did not give rise to substantial doubt that the decision had been made on relevant grounds – a high hurdle for an objector to clear. 

The Stirling scheme was completed in 1997. Scroll forward to 2016 and the new owner of the building is wishing to make some changes to its lower levels. In response, Lord Palumbo, the Twentieth Century Society and others have been lobbying for the 1997 building to be listed. Historic England recommended a grade II* listing last year which was rejected by Secretary of State for Culture, Media and Sport John Whittingdale in December 2015, relying on the Government’s policy that buildings under thirty years old should normally only be listed if they are of “outstanding quality and under threat”. The Twentieth Century Society appealed and to everyone’s surprise Whittingdale indicated last month that the decision is to be reviewed, acknowledging that it may be appropriate to list a building which is under thirty years old if it is of special historic or architectural importance even if it does not meet the “outstanding quality and under threat” tests. The decision is now in the in-tray of his successor Karen Bradley. 

In the meantime, planning permission for amendments to the ground floor of the building was resolved to be approved in March by the Corporation of London. 

We await the Bradley’s decision, as no doubt do the owners of other high profile modern buildings. And, if the decision is not to list, giving five years’ automatic listing immunity, the failed challenge of the decision not to list Pimlico School, brought by its architect John Bancroft (2004 EWHC 1822), suggests the likely outcome of any judicial review. 

World Heritage Sites


UNESCO’s World Heritage Committee lists places of special cultural or physical significance. One of those is the Liverpool – Maritime Mercantile City World Heritage Site.

25 years after the No 1 Poultry case, Save Britain’s Heritage is of course alive and kicking. On 2 August 2016 the Court of Appeal in Save Britain’s Heritage v Liverpool City Council  rejected their challenge to planning permission for a scheme in Lime Street, Liverpool. Save argued that the Council had breached the World Heritage Committee’s operational guidelines  as well as the Government’s Planning Practice Guidance  which require a council to consult with DCMS and via DCMS with the World Heritage Committee in the case of any proposal which may affect the “outstanding universal heritage” of a world heritage site. Save’s position was that the duty did not just apply to proposals that may have an adverse effect, but proposals that may have any effect, negative, neutral or indeed positive. Lindblom LJ disagreed: the proper interpretation could only be “adverse effect”. 

This is of course not the only controversial issue facing the Council in relation to its world heritage site status. As is recorded in the judgment, in view of its “serious concern at the potential threat of the proposed development of Liverpool Waters on the Outstanding Universal Value of the property”, the huge scheme by Peel Holdings, the World Heritage Committee in 2012 decided  to inscribe the site on its List of World Heritage in Danger.

By way of international perspective on the focus that world heritage site status can bring to issues that go well beyond issues of architecture and built heritage a 25 July 2016 Eco-Business piece describes the impacts of climate change and fossil fuel emissions of sites such as the Great Barrier Reef and a 26 July 2016 article in the Straits Times  describes the pressures faced by China’s sites. 

Failure to consult

Finally, back to domestic law – the redevelopment of a disused bowling green in Bexhill-on-sea for a sheltered housing development. The Court of Appeal in R (Loader) v Rother District Council  28 July 2016 quashed the planning permission for the scheme, which would adversely the setting of listed buildings. The Victorian Society had objected to a previous scheme but were recorded as having been consulted and not objected to the scheme under challenge. The reality was that officers knew that their attempts to contact the Society had failed. The court held that the summary in the report of the Society’s position was seriously misleading: “In the context of the duty in section 66(1) of the Listed Buildings Act, the committee was misinformed on the consultation of a national amenity society, which had been an objector to a similar proposal, and whose views on this application the council had chosen to seek and might have made a difference to its decision”. 

So,
– successive waves of case law on the reasoning needed before allowing harm to be caused to a listed building or conservation area

– radical architects and brave developers, who then try to have their developments listed to prevent anyone else being radical or brave

– international but often powerless, principles of heritage protection versus the simple, practical protections (demonstrated by the Court of Appeal in Loader) of English administrative law…

Simon Ricketts

Personal views, et cetera