Conservation area – Listed building – Tree – Defendant local authority deciding to fell tree causing damage to listed building – Claimant local resident seeking judicial review of decision – Whether defendants having statutory duty to preserve tree – Whether defendants failing to take account of material consideration – Whether appropriate remedy being to quash decision to remove tree – Application granted
The defendant local authority owned a tree located in a conservation area at the rear of a library in south-east London. The library was a grade II-listed building and the defendants had a duty to protect it from risk. The tree was approximately 70 to 80 years old and about 25 metres high. Following expert reports that the tree had caused movement within the rear boundary wall of the library building, the defendants decided to fell the tree.
The claimant was a local resident who lived near the tree and objected to the removal of the tree. She brought a claim for judicial review of the defendants’ decision. She contended that the defendants were subject to the duty to protect the tree from risk under section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990. In particular, the defendants had failed to give special attention to whether the preservation of the tree would be desirable in the interests of preserving or enhancing the character or appearance of the area. Alternatively, the defendants had failed to take into account the material consideration that the tree was situated in the conservation area. In any event the appropriate remedy was to quash the decision to remove the tree.
Held: The application was granted.
(1) The defendants were not under a duty to give “special attention” as required by section 72(1) as the effect of regulation 15 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012, relating to trees in conservation areas, did not apply in respect of trees owned by local authorities, as was the case here. Section 72(2) was clear in requiring a local authority to apply the statutory duty at section 72(1) only to the functions there identified. As the defendants were not acting in the exercise of any of those functions, section 72 did not apply.
(2) The defendants had sought to argue that it was clear that in reaching its decision their Cabinet had applied local knowledge. However the recommendation to fell the tree had been made not by a planning officer but by the Assistant Director of Commissioning, Communities and the decision had been taken, not by a planning committee of the defendants but by the defendants’ Cabinet. It could not be assumed that the same extent of local and background knowledge in the context of planning and conservation issues applied to Cabinet members as would apply to a planning committee. In those circumstances the court was satisfied that the defendants, through their Cabinet, had failed to take into account a material consideration, namely that the tree was situated in the conservation area: R v Mendip District Council, ex parte Fabre [200] PLSCS 6; (2000) 80 P & CR 500 and R (on the application of Trashorfield Ltd) v Bristol City Council [2014] EWHC 757 (Admin) distinguished.
(3) The appropriate remedy was to quash the decision to remove the tree which had been finely balanced. Given the history of the decision making process and the reservations that had been expressed by the defendants that the tree would only be felled provided no strong objections were received, the fact that the tree being in a conservation area had not been considered could have made a difference to the defendants’ decision. It was a fundamental element of the factors which should have been taken into account in deciding whether or not to confirm the decision to fell the tree. The court was not required to be satisfied that there was certainty that consideration of the matter would have made a difference to the decision, rather that there was a real possibility that it would. In all those circumstances, the failure to take into account a material consideration, namely that the tree was within a conservation area, was fundamental to the decision. Had the members of the defendants’ Cabinet weighed the impact that the loss of tree would have on the character of the conservation area as a whole there was a real possibility that a different conclusion would have been reached: Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P & CR 343 applied.
Annabel Graham Paul (instructed by Richard Buxton Environment & Public Law Solicitors) appeared for the claimant; Matthew Reed (instructed by Lambeth legal Services) appeared for the defendants.
Eileen O’Grady, barrister
