Sheffield City Council v Alice Fairhall and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males |
| Judgment Date | 15 August 2017 |
| Neutral Citation | [2017] EWHC 2121 (QB) |
| Court | Queen's Bench Division |
| Date | 15 August 2017 |
| Docket Number | Case No: D92LS739 |
[2017] EWHC 2121 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Males
Case No: D92LS739
David Forsdick QC and Yaaser Vanderman (instructed by Sheffield City Council) for the Claimant
John Cooper QC and Laura Collier (instructed by Messrs, Howells Solicitors) for the Named Defendants
Hearing dates: 26, 27 & 28 July 2017
Judgment Approved by the court for handing down (subject to editorial corrections) 1
Introduction
The felling of trees in Sheffield is highly controversial. The city council insists that it is entitled to fell trees, including in some cases healthy trees, in performance of its statutory powers and duties to maintain the highway. It says that objectors who take action which prevents such felling from going ahead are acting unlawfully and must be restrained by an injunction. The objectors maintain that they are exercising a right of peaceful protest intended to cause the council to think again They want the council to find alternative ways of maintaining the highway which do not involve the felling of healthy trees which, they say, add significantly to the environment, wildlife, air quality and quality of life of the people of Sheffield.
In this action the claimant council seeks an injunction which it hopes will bring to an end a campaign whereby objectors, notified by social media that felling work is about to take place in a given location, attend at the site and, by their presence within a safety zone erected around a tree, ensure that the work cannot be carried out safely and therefore cannot be carried out at all. The council does not seek to prevent further protests about its approach to the issue of tree felling, provided that such protests take place outside safety zones, but the objectors say that such protests would have little point as they would not prevent the felling of the trees in question.
The claim form in this action was issued on 12 July 2017 and was followed on 17 July by an application by the council for an interim injunction. Such an injunction, if granted, would effectively have determined the action. Once the trees have been felled, the question whether the objectors are entitled to prevent such work by maintaining a presence within a safety zone would be academic. Accordingly an order was made by HHJ Saffman, with the consent of the parties, to ensure an early trial. In those circumstances the council did not press its application for an interim injunction.
The trial took place before me over three days between 26 and 28 July 2017. I am grateful to all concerned for their cooperation in enabling such a prompt and efficient resolution of the dispute. However, as I shall explain, although the claim for an injunction has been rapidly determined, it represents only the latest stage in what has been a long standing dispute.
This judgment deals with the council's claim for an injunction. That claim is pursued against the fourth, fifth and sixth named defendants (Alison Teal, David Dillner and Calvin Payne) and also against persons unknown. The remaining named defendants have given undertakings which the council has accepted and, as a result, the claim for an injunction is no longer pursued against them. The defendants who have given undertakings have done so reluctantly, in order to avoid any potential liability to pay costs. Nevertheless, as their counsel Mr John Cooper QC confirmed, they have done so of their own free will and understand that the undertakings bind them to the same extent as if an order in the same terms had been made against them.
The three remaining named defendants have all engaged, or encouraged others to engage, in the campaign to prevent felling of healthy trees by maintaining a presence in a safety zone. They believe that this conduct is a lawful exercise of their right to peaceful protest. They see no reason why they should not continue with the campaign and intend to do so.
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.
The council also has a pleaded claim to recover damages for any losses caused by the defendants' conduct. That claim is not dealt with in this judgment. If and to the extent that it arises, it will need to be dealt with at a further hearing.
Background
Much of the background to the present dispute is described in detail in the judgment of Gilbart J in R (Dillner) v Sheffield City Council [2016] EWHC 945 (Admin), [2016] Env. L.R. 31. That judgment was handed down on 27 April 2016 and should be read together with the present judgment. The account which follows is largely drawn from the judgment in Dillner and from the evidence of Paul Billington, who has since March 2017 been the council's Director of Culture and Environment. In that role he is responsible for highways maintenance. Although he was cross-examined aggressively, I found him to be an honest and reliable witness. He is clearly a conscientious and fair-minded council officer doing a challenging job. Similarly the three defendants against whom the injunction claim is now pursued were plainly decent and honest witnesses with a genuine and passionate belief in their cause who believed strongly in the evidence which they gave. No doubt the same is true of the other named defendants, who provided witness statements but were not required to give oral evidence.
Over the last 30 years or more the upkeep of roads and streets in Sheffield has suffered from a lack of investment. By 2009 a significant backlog of maintenance work had accrued. As a result the highway network, comprising some 2000 km of roads, 500 traffic signals and 68,000 street lights, was in poor condition.
As the highway authority for the Sheffield area the council was and is under a statutory duty to repair and maintain the highway. Work needed to be done, therefore, to clear the backlog of repair and maintenance and to maintain the highway network for the future. The council's view is that this work is not only necessary in order to perform its statutory duty but is also in the public interest because it will promote the economic development of the city.
The council did not have the financial resources to carry out the highway maintenance work which was needed. For want of any better alternative, it decided to outsource its highway maintenance programme by entering into a 25 year private finance initiative ("PFI") contract with Amey Hallam Highways Ltd ("Amey") on 31 July 2012. In accordance with this contract, a total of some £2.2 billion will be payable to Amey over the 25 year term. I accept Mr Billington's evidence that many councillors had reservations about entering into a PFI contract, but concluded that there was no other way in which the necessary finance to undertake a highway maintenance programme could be obtained. For example, this enabled the council to draw down some £600 million from central government which would not otherwise have been available. Other funding was provided by financial institutions. The programme thus created is called "Streets Ahead". It is the biggest urban road upgrade programme in the United Kingdom.
It was apparent from the defendants' evidence, particularly that of Calvin Payne, that the defendants are opposed to the whole concept of a PFI contract and regard both the council and Amey (although not Amey's employees with whom they have developed friendly relationships) with the utmost bitterness and distrust. Nevertheless, while there may be scope for a range of opinions about the desirability of PFI contracts as a vehicle for funding public projects, the existence of the PFI contract in this case is a fact. The lawfulness of the council's decision to conclude that contract has never been challenged by judicial review although, as I shall explain, Mr Cooper did submit in the course of the hearing that the contract is unlawful.
The PFI contract as a whole is not publicly available although parts of it have been published on the council's website It is described in a public council document entitled "Streets Ahead Five Year Tree Management Strategy 2012–2017" as "a 25 year partnership that seeks to upgrade Sheffield's roads, pavements, lighting and other highway assets during the first five years and then maintain the assets thereafter for the remainder of the contract term". The initial five-year period, described in contractual language as the "Core Investment Period", will come to an end on 31 December 2017. Although I was told that in some circumstances there are mechanisms for this period to be extended, at that stage the funding required to deal with the backlog of maintenance work will no longer be readily available. It is therefore important to the...
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