MccLellan, R (On the Application Of) v London Borough of Lambeth

This is a claim for judicial review brought by the claimant Karen McClellan, a resident of the defendant Borough. The claimant challenges the decision of the Defendant to fell a tree, a “tree of heaven” (of the species ailanthus altissima) (“the Tree”) located in the Kennington Conservation Area (“the Conservation Area”) at the rear of Durning Library (“the Library”), 167 Kennington Lane, London SE11 4HF. There was some discussion before me as to whether the challenge was to more than one decision of the defendant. Counsel for the claimant made it clear that the only decision challenged was that of the defendant’s Cabinet of 22 October 2012. By that decision the defendant’s Cabinet decided not to overturn the earlier decision of the defendant’s officer of 9 July 2012, which had been reconfirmed on 20 August 2012 and 3 October 2012, that the tree should be removed. The officer is a Mr John Kerridge who is the defendant’s Assistant Director of Commissioning, Communities (“Mr Kerridge”).

On 27 November 2013 Holroyde J granted an injunction to the claimant preventing “any tree felling works to fell the ”Tree of Heaven” located at the rear of Durning Library, 167 Kennington Lane, London SE11 4HF”. On 4 March 2014 permission was granted by Wyn Williams J to the claimant to bring a judicial review.

The tree is owned by the defendant and is not subject to a tree preservation order. Both the tree and the library are within the conservation area. The library is a grade II listed building as a consequence of which the defendant has a duty to protect it from risk. Although the claimant’s case was that the defendant was subject to the duty under section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, it being said specifically that the defendant 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 that area, the parties agreed that, in the event that section 72 did not apply, the claimant should be permitted to amend her grounds to include a failure by the defendant to take into account a material consideration. It was accepted that there was no prejudice to the defendant and indeed the section 72 point was not taken in the defendant’s acknowledgment of service. I allowed the amendment.

The tree is approximately 70 to 80 years old and some 25 metres high. It is located at the rear of the library. Both the library and the tree are within the conservation area, which is described in a witness statement by Mr Kerridge as “one of [the] best known conservation areas in the borough”. The claimant is a local resident who lives near to the tree.

The defendant first became concerned about the impact of the tree on the library in 2007 when it commissioned an independent report dated 19 March 2007. The report found that the tree had had no adverse affect on the library but noted that further action may have to be taken against the tree in the future should the library building walls show signs of cracking and distress. No action was taken at that time.

The defendant commissioned two reports from Lambert Hampton Smith, Building Surveyors, in 2012. One report was from a surveyor and the other was from an arboriculturalist (from Landmark Trees). Whilst both reports acknowledged that there was still no damage or cracking to the library building they did note that:

“…. The tree growth has caused movement within the rear boundary wall resulting in vertical and lateral cracking, with lateral displacement of the brickwork in isolated areas. ”

The arboricultural report observed that:

“The tree has limited public amenity value, given its location to the rear of the library. It is clearly visible though to the residents or the neighbouring housing estate, who doubtless take some enjoyment from its presence.”

The recommendation from the surveyor was in the following terms:

“Given the listed nature of the building and taking into consideration the conclusions drawn by the Arboricultural Consultant (proximity to the wall/building, age, decay and poor branch structure) it is recommended that the tree should be removed. The arboriculturalist’s recommendation was …. the cost of maintaining such a large tree, in possible decline, next to a public library is likely to increase with time and divert dwindling public resources. In the absence of any strong opposition, it would be prudent to remove the tree.”

On 9 July 2012 an officer of the defendant made a decision to remove the tree. This is contained in an email from the defendant to Councillors which stated as follows:

“I have attached the report received from our consultants which recommends that the tree is taken down. This is the option we intend to proceed with, provided we do not receive any strong objection.”

As a consequence of local opposition the defendant put the decision on hold pending consideration of the concerns of residents. The decision was reconfirmed by Mr Kerridge on 20 August 2012 in the following terms in an email to a Councillor Morgan:

“My decision is that the tree will be removed during October 2012. A replacement will be planted in the same month and within the immediate vicinity.”

The email concluded as follows:

“If your constituent wants me to reconsider this decision then I will require an independent professional assessment from them, which provides an alternative view by 14 September 2012.”

A meeting then took place between the defendant’s officer and local residents on 10 September 2012 and the defendant reconfirmed its decision. This was confirmed in an email of 3 October 2012 which concluded:

“I have now concluded my decision making and I acknowledge that you may not agree with this decision.”

The email also explained that the defendant’s Cabinet was due to meet on 22 October 2012 to consider the felling of the tree. As the Cabinet had the power to overturn the officer’s decision the defendant had agreed to delay the removal of the tree until the Cabinet had considered the decision.

The claimant submitted a petition to the defendant’s Cabinet against the felling of the tree and also submitted an independent report prepared by Treework Environmental Practice. The report stated, inter alia, as follows:

“Durning Library is an English Heritage Grade II listed Gothic Revival building designed by Sidney R J Smith, which has local and wide importance. The tree is at the rear corner of the library. The height of Ailanthus is similar in size to many in the London urban forest including one at Royal Botanic Gardens Kew. The earlier introductions of the species occurred around the mid-eighteenth century. Depending on the growing circumstances of the tree in its early and maturing phases I estimate its age to be 70 to 90 years.

The pattern of root growth is not known. However there is no contention about the observable damage to the nearby (non library) wall structures. On the other hand it is agreed that over the 80 or so years of the trees growth the roots have not caused, nor do they currently cause, any damage to the library itself.

In my opinion on the basis of both reports and current observations, without evidence to the contrary, it is reasonable to conclude that there is a low risk of damage from the trees roots causing structural impact upon the library, from direct contact expansion (or from indirect effects on soil hydration resulting in differential movement).”

In respect of subsidence the report concluded:

“To confirm the extent of the real risks of indirect damage would require expert investigation. My view is that, with a tree showing such high vitality, if soil conditions conducive to tree related subsidence in the building are present they would likely have become evident by now and without evidence to the contrary, it is reasonable to conclude that the subsidence risk is low.”

The Cabinet was provided with a report by the defendant’s officers. It was accepted that neither that report nor any of the earlier reports referred to the fact that the tree is located within the Kennington conservation area. The defendant’s Cabinet decided not to overturn the officer’s decision to remove the tree. It was accepted that the Cabinet minutes do not record any discussion which made any reference to the conservation area during the course of the meeting.

Thereafter the claimant made an internal complaint and subsequently a complaint to the local government ombudsman who did not uphold the claimant’s complaint, concluding that the decision was one which the defendant was entitled to take and found no fault in the process.

(i) Was the defendant subject to the duty under section 72

In my judgment section 72 does not apply in this case. Section 72 provides:

“72 – General duty as respects conservation areas in exercise of planning functions.

(1)

In the exercise, with respect to any buildings or other land in a conservation area, of any functions under or by virtue of any of the provisions mentioned in subsection (ii(2) special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.

(2)

The provisions referred to in subsection (1) are the Planning Acts and part 1 of the Historic Buildings and Ancient Monuments Act 1953 and section 70 and 73 of the Leasehold Reform, Housing and Urban Development Act 1993.

(3)

In subsection (2), references to provisions of the Leasehold Reform, Housing and Urban Development Act 1993 include references to those provisions as they have effect by virtue of section 118 (1) of the Housing Act 1996.

(4)

Nothing in this section applies in relation to neighbourhood development orders.”

The duty which applies in relation to work to trees in conservation areas in section 211 of the Town and Country Planning Act 1990 (“the 1990 Act”) is as follows:

“211 – Preservation of trees in conservation areas.

Subject to the provisions of this section and section 212, any person who, in relation to a tree to which this section applies, does any act which might by virtue of section 202C be prohibited by tree preservation regulations shall be guilty of an offence.

(1A) Subsection (1) does not apply so far as the act in question is authorised by an order granting development consent.

Subject to section 212, this section applies to any tree in a conservation area in respect of which no tree preservation order is for the time being in force.

It shall be a defence for a person charged with an offence under subsection (1) to prove –

that he served notice of his intention to do the act in question (with sufficient particulars to identify the tree) on the local planning authority in whose area the tree is or was situated; and

that he did the action in question –

with the consent of the local planning authority in whose are the tree is or was situated, or

after the expiry of the period of six weeks from the date of the notice but before the expiry of the period of two years from that date.

Section 210 shall apply to an offence under this section as it applies to a contravention of tree preservation regulations.

An emanation of the Crown must not, in relation to a tree to which this section applies, do an act mentioned in subsection (1) above unless –

the first condition is satisfied, and

either the second or third condition is satisfied.

(5A) Subsection (5) does not apply so far as the act in question is authorised by an order granting development consent.

The first condition is that the emanation serves notice of an intention to do the act (with sufficient particulars to identify the tree) on the local planning authority in whose are the tree is situated.

The second condition is that the act is done with the consent of the authority.

The third condition is that the act is done –

after the end of the period of six weeks starting with the date of the notice, and

before the end of the period of two years starting with that date.”

Regulation 15 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012 (“Regulation 15”), which were made pursuant to section 212 of the 1990 Act states:

“15 – Trees in conservation areas – exceptions

Section 211 (preservation of trees in conservation areas) shall not apply to –

the cutting down, topping, lopping or uprooting of a tree –

in the circumstances mentioned in regulation 14;

by, or on behalf of, the Forestry Commissioners on land placed at their disposal in pursuance of the Forestry Act 1967 or otherwise under their management or supervision; or

by, or on behalf of, a local planning authority.”

The claimant’s case was that section 72 applied and that as such the defendant was under a duty to give “special attention” as required by section 72 (1) maintaining that the same duties apply to both local authority owned and privately owned trees. In my judgment that argument does not hold good as the effect of regulation 15 does not apply in respect of trees owned by local authorities, as was the case here. Section 72 (2) is clear in requiring a local authority to apply the statutory duty at 72 (1) only to the functions there identified:

“72 (2) The provisions referred to in subsection (1) are the planning acts and Part 1 of the Historic Buildings and Ancient Monuments Act 1953 and section 70 and 73 of the Leasehold Reform, Housing and Urban Development Act 1993”.

As the defendant was not acting in the exercise of any of those functions section 72 does not apply. As I observed at paragraph 3 of this judgment the parties agreed that in the event that I found that section 72 did not apply the claimant should nevertheless be permitted to amend her grounds to include a failure to take into account a material consideration. The thrust of the complainant’s case in this respect is that the defendant’s Cabinet did not take into account the fact that the tree is located in the conservation area. It is the case that there is nothing in the Cabinet report, minutes, background report or communications of the earlier decisions of the officer of the council to fell the tree to indicate that the tree is in the conservation area and that it is the case that the Cabinet did not take that factor into account when reaching its decision.

In his witness statement Mr Kerridge indicated as follows:

“11 …. I considered the Claimant’s concerns it was always uppermost in my mind that the library and tree are located in a conservation area. The Kennington conservation order is one of the most prominent areas in the borough and the amenity of the tree was part of my exercise of judgement in weighing the different factors in reaching my decision …..

28 …. Although there is no express reference to the tree being located in a conservation area in the Cabinet papers the area is very well known as a conservation area. The tree is near the geographical centre of the conservation area, includes Cleaver Square, Lambeth County Court, the Durning Library, eighteenth century Georgian terraced properties on Kennington Lane, Kennington Park Road and Kennington Road. It is one of the best known conservation areas in the borough. It is noteworthy in this regard that the claimant and her associates did not mention the fact that the tree is located in a conservation area in correspondence with the defendant …..”

The defendant sought to argue that it was clear that in reaching its decision the defendant’s Cabinet had applied local knowledge relying on the judgment of Hickinbottom J in R (Trashorfield Limited v Bristol City Council and others [2014] EWHC 757 (Admin) in which the judge summarised the legal principles applicable in a challenge to a planning committee’s decision based on a planning officer’s report. In particular at 13 (vi):

“In construing reports, it also has to be borne in mind that they are addressed to a “knowledgeable readership”, including council members”, who, by virtue of that membership, may be expected to have a substantial local and background knowledge “(Fabre page 509, per Sullivan J as he then was)”.

There is a significant distinction in my judgment between the factual background in this case and that in Trashorfield and Fabre. As I have already observed Mr Kerridge is not a planning officer. He is the Assistant Director of Commissioning, Communities. The decision of 22 October 2012 was made, not by a Planning Committee of the defendant but by the defendant’s Cabinet. In my judgment this is a significant distinction and it cannot be assumed that the same extent of local and background knowledge in the context of planning and conservation issues applies to Cabinet members as would apply to a Planning Committee.

In those circumstances I am satisfied that the defendant through its Cabinet failed to take into account a material consideration, namely that the tree was situated in the conservation area.

This brings me to the final issue for consideration as to whether the appropriate remedy is to quash the decision to remove the tree. It is clear, as is observed in the skeleton argument submitted on behalf of the claimant that the decision to fell the tree was a finally balanced one, for example, in the 2012 arboricultural report it was concluded that:

“In the absence of any strong opposition, it would be prudent to remove the tree.”

and in the 9 July 2012 email from an officer of the defendant to councillors:

“…. The option we intend to proceed with, provided that we do not receive any strong objections.”

The report provided by the claimant indicated that the risk of damage to the library from the tree roots was low and that the only observable damage was to the nearby (non- Library) wall structure.

I was reminded of the guidance set out in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P&CR 343352:

“3 If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision-maker ought to take into account.

4 As Mr Justice Hodgson said, there is clearly a distinction between matters which a decision-maker is obliged by statue to take into account and those were the obligation to take into account is to be implied from the nature of the decision and of the matter in question. I refer back to the Creed N.Z. case.

5 If the validity of the decision is challenged on the ground that the decision-maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision-maker should have taken into account.

6 If the judge concludes that the matter was “fundamental to the decision” or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain that the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid.

7 (Though it does not arise in the circumstances of this case). Even if the judge has concluded that he could hold the decision as invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant any relief.”

The defendant sought to argue that even if there was a failure to take into account a material consideration then it is reasonable to conclude that the defendant’s decision would have been no different. Conversely the claimant maintained that given this was a finally balanced decision, as it clearly was, this could have tipped the balance with a real possibility of a different decision.

In my judgment given the history of the decision making process and the reservations that had been expressed by the defendant that the tree would only be felled provided no strong objections were received, the fact that the tree was in a conservation area was not considered could have made a difference to the defendant’s decision as 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. I conclude that the test in Bolton does not require the court 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 of those circumstances I conclude that 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 defendant’s Cabinet weighed the impact that the loss of tree would have on the character of the conservation area as a whole there is a real possibility that a different conclusion would have been reached. In those circumstances it is appropriate to grant relief.

I therefore grant this application for judicial review and quash the decision of 22 October 2012.