The Queen (on the application of David Dillner) v Sheffield City Council Amey Hallam Highways Ltd (Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Gilbart
Judgment Date27 April 2016
Neutral Citation[2016] EWHC 945 (Admin)
Docket NumberCase No: CO/613/2016
CourtQueen's Bench Division (Administrative Court)
Date27 April 2016

[2016] EWHC 945 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Gilbart

Case No: CO/613/2016

Between:
The Queen (on the application of David Dillner)
Claimant
and
Sheffield City Council
Defendant

and

Amey Hallam Highways Limited
Interested Party

Charles Streeten (instructed by Richard Buxton, Environmental and Public Law, Solicitors of Cambridge) for the Claimant

Richard Honey and Katherine Barnes (instructed by Director of Legal and Governance, Sheffield City Council) for the Defendant

Tim Buley and Matthew Fraser, instructed by Allen and Overy LLP, Solicitors of London for the Interested Party

Hearing dates: 22nd-23rd March 2016

Mr Justice Gilbart

INDEX TO JUDGMENT

Chapter

Paragraphs

Introduction

1–10

A The Streets Ahead contract and the historical context

11–15

B Duties and powers of Sheffield City Council as highway authority

16–30

C The facts of the works involving trees

31–80

D Governance within the Council

81–92

E Events germane to the consultation issue

93–127

F History of the proceedings, including the claim for an injunction

128–129

G The case for the Claimant

130–139

H The cases for SCC and Amey

140–150

I Discussion

151–214

J Delay

214–223

K Granting of relief

224–226

L Conclusions

227–231

INTRODUCTION

1

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 20 th 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.

2

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. I say "background" because there is a real issue on whether this challenge actually engages consideration of that issue at all.

3

This is a "rolled up" hearing into a claim by the Claimant, who seeks thereby to challenge a resolution of a full Council meeting of the Defendant SCC, which the Claimant contends was a decision not to cease the felling by the Interested Party ("Amey") of trees within the public highway, in performance of its contract with the Defendant (SCC) to maintain and repair the highways within the SCC area. Mr Dillner and many others (but none are Claimants in the action) are concerned that many trees have been felled which add to the attractiveness of their streets and their ambiance, and have other ecological and environmental value.

4

The challenge in these proceedings is to a resolution of what is alleged by the Claimant to have been a decision of SCC of 3 rd February 2016, whereby the Claimant alleges that it refused to stop the felling.

5

The amended grounds on which the challenge is made are

Ground 1: that SCC have 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;

Ground 2 (a): the felling of trees in the highway requires planning permission pursuant to s 55 and 57 of the Town and Country Planning Act 1990 (" TCPA 1990") and that there was a consequent requirement to apply the procedure in the Town and Country Planning (Environmental Impact Assessment) Regulations 2011;

Ground 2(b); that there was a failure to carry out an Environmental Impact Assessment in accordance with the requirements of the Environmental Assessment Directive 2011/92/EU;

Ground 3: as a matter parasitic to Ground 2(a), SCC was under a duty under s 72 of Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990 ("LBCAA 1990") 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. That applies also to the removal of trees, in reliance on R (McLellan) v Lambeth LBC [2014] EWHC 1964 (Admin).

6

The relief sought is

(a) a declaration that the consultation carried out via the Independent Tree Panel is unlawful;

(b) a declaration that the felling of trees in connection with the Streets Ahead project is an operation requiring planning permission pursuant to s 57 TCPA 1990, or alternatively that it is a project whose likely cumulative significant effects require assessment in accordance with Directive 2011/92/EU, or requires a screening opinion under Article 4 of the Directive;

(c) an injunction preventing the felling of further trees until SCC have carried out a fair and proper consultation and have complied with the requirement for the grant of planning permission and an environmental impact assessment, except where an appropriately qualified independent arboricultural expert has produced a report stating that the tree presents an immediate danger to the public and must be felled.

7

SCC and Amey, its contractor to whom it has entrusted the carrying out of its duties of maintenance and repair of the highways, aver that

(a) the decision of 3 rd February 2016 was not that asserted by the Claimants. It related only to trees in one part of the City, and did not seek cessation of felling in direct terms;

(b) the Council did not take any decision to refuse to cease felling;

(c) the challenge to the "decision" of 3 rd February 2016 is an impermissible challenge, intended to attack decisions taken long before to enter into the Streets Ahead programme;

(d) there was no duty to consult, nor had there been a promise which created a duty to consult. A consultation scheme was set up in November 2015 which was sufficient, and of which there had been no breach;

(e) neither the works nor the felling of trees amounted to development within the meaning of s 55 of TCPA 1990;

(f) the felling of the trees did not and does not require screening or assessment pursuant to the domestic Regulations or the Directive;

(g) there was no breach of s 72 of the LBCAA 1990;

(h) (By SCC) the proceedings had not been brought promptly, and permission to proceed should be refused on the grounds of delay.

8

I shall deal with the matter under the following heads

(a) The Streets Ahead Contract and the historical context

(b) The duties and powers of SCC as highway authority

(c) The facts of the works involving trees

(d) Governance within the Council

(e) Events germane to the consultation issue

(f) The history of the proceedings, including the claim for an injunction

(g) The case for the Claimant

(h) The cases for SCC and Amey

(i) Discussion

(j) Delay

(k) Granting of Relief

(l) Conclusions

9

As will become apparent, I am concerned that this claim was brought without any proper appreciation of the law relating to the repair and maintenance of highways, and that the Claimant and those who advise him have made no meaningful attempt to explore it.

10

Nothing in this Judgment seeks to doubt the value which many residents of Sheffield place upon the trees in the various highways, nor is it a matter for any criticism by the Court that they have sought to protect them. I shall return to that topic at the end of this Judgment.

A THE STREETS AHEAD CONTRACT AND THE HISTORICAL CONTEXT

11

The starting point for considering a challenge to the carrying out of works in the public highway, including the felling of trees, must be the statutory code which imposes duties on, and gives powers to, the highway authority in question. But it is helpful also to set the scene with the historical context.

12

I received evidence from, among others, Mr David Caulfield the Director of Development Services of the City Council. As his evidence showed, Sheffield like some other cities in the industrial north which had seen their fortunes thrive from the success of the heavy industries based within them, was hit very hard by the deindustrialisation of the 1970s and 1980s, in its case as the steel industry endured a substantial decline and heavy job losses. It had many priorities to address in its use of funds. Sheffield, like many other large authorities, has found the last several years difficult financially. Its ability to spend money on its highways (as on its other statutory services) was and is affected. Whether that was caused by the settlement it received from central Government being too stringent, or because it did not manage its finances as efficiently as it might have done, or a combination of the two, or some other cause, is not a matter of relevance. What matters is that it was unable to maintain...

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3 cases
  • Sheffield City Council v Paul Brooke
    • United Kingdom
    • Queen's Bench Division
    • June 21, 2018
    ...was a decision made pursuant to its statutory duty to maintain the highway and was lawful: see R (Dillner) v Sheffield City Council [2016] EWHC 945 (Admin). That was followed by the council's application for an injunction. For the reasons which I gave more fully in my judgment, I held that ......
  • Sheffield City Council v Alice Fairhall and Others
    • United Kingdom
    • Queen's Bench Division
    • August 15, 2017
    ...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 accou......
  • Sheffield City Council v Simon Crump
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    • Queen's Bench Division
    • June 7, 2018
    ...was a decision made pursuant to its statutory duty to maintain the highway and was lawful: see R (Dillner) v Sheffield City Council [2016] EWHC 945 (Admin). That was followed by the council's application for an injunction. For the reasons which I gave more fully in my judgment, I held that ......
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    • Wildy Simmonds & Hill Public Rights of Way: The Essential Law Contents
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    • Wildy Simmonds & Hill Planning Law. A Practitioner's Handbook Contents
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    ...Borough Council [2011] EWCA Civ 832, [2011] NPC 78, [2011] All ER (D) 216 (Jul), CA 148, 202 R (Dillner) v Sheffield City Council [2016] EWHC 945 (Admin), [2016] Env LR 31 84 R (DLA Delivery Ltd) v Lewes District Council [2015] EWHC 2311 (Admin), [2015] All ER(D) 366 (Jul) 71 R (East Sussex......
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    • Wildy Simmonds & Hill Public Rights of Way: The Essential Law Contents
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    ...County Council [2003] UKHL 60, [2004] 1 AC 889, [2003] 3 WLR 1306, [2004] 1 All ER 160, HL 26 R (Dillner) v Sheffield City Council [2016] EWHC 945 (Admin), QBD 83 R (Elveden Farms Ltd) v Secretary of State for Environment and Rural Affairs [2012] EWHC 644 (Admin), [2012] All ER (D) 183 (Jan......
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