Gilbart J has handed down judgment in the high profile judicial review case of R (on the application of Dillner) v Sheffield City Council [2016] EWHC 945 (Admin) following a rolled-up hearing on 22-23 March.
A Sheffield resident sought judicial review of Sheffield City Council’s decision to fell trees on public highways across the city. The tree felling was carried out by Amey Hallam Highways Limited pursuant to a Public Finance Initiative contract with the Council to maintain and repair public highways. For a tree to be felled, it had to be either dangerous, dead, diseased, dying, damaging or discriminatory. An Independent Tree Panel was in place to review controversial tree-felling proposals. The Claimant was concerned that many trees had been felled which add to the attractiveness of their streets and their ambiance, and have other ecological and environmental value.
The Claimant argued that the Council carried out an unfair and procedurally improper consultation, having given the legitimate expectation that the people of Sheffield would be consulted before the trees were felled; the felling of trees in the highway required planning permission; there was a failure to carry out an Environmental Impact Assessment; and the Council was under a duty to pay special attention to the desirability of preserving and enhancing the character of conservation areas within which trees are located before granting permission for the development.
The Judge refused permission to apply for judicial review on all grounds, finding that the Claimant’s arguments were unarguable. The Judge held that a decision to carry out works of maintenance (including repair), whether or not they have adverse environmental effects, is not and was not unlawful. It was not an act of development, did not require planning permission, did not require Conservation Area consent, and did not amount to a change for the purposes of the EIA Directive. Also, there was no statutory requirement which required the Council to have invited representations from the public on the contents of the Streets Ahead programme or contract.
At an early stage of the proceedings the claimant had obtained without notice an interim injunction from Dove J prohibiting further works across the whole of Sheffield. Gilbart J discharged the interim injunction at the conclusion of the rolled-up hearing. The Judge held that this Judgment is not 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.
Martha Grekos is a partner and head of planning at Irwin Mitchell
