DfT: Challenges in highway asset management: speech by Andrew Jones MP, Parliamentary Under Secretary of State, to local authorities at the Technical Advisors Group Conference about the issues of asset management. (17 May 2016)

R (Dillner) v Sheffield City Council; Amey Hallam Highways Ltd (Interested Party) [2016] EWHC 945 (Admin) (Admin Ct): D applied for judicial review of the Council's decision not to cease the felling by AHH of trees within the public highway, in performance of its highways maintenance contract with the Council. D was concerned that many trees which added to the attractiveness of their streets and their ambiance and had other ecological and environmental value, had been felled. D contended that: the Council had carried out an unfair and procedurally improper consultation; the felling required planning permission; and the Council had failed to carry out an Environmental Impact Assessment. He also sought an injunction preventing further felling until there had been proper consultation. The Council argued that it had no power to decide that felling should cease, nor how the programme of works to highways should be carried out. As the work was being done under a contract, a change in the contract to require the cessation of tree felling would have costly consequences. The risk for highway claims currently fell on AHH under the contract. If tasks necessary to achieve proper repair and maintenance could not be undertaken, then the risks would be passed back on to the Council, with serious consequences for its budget.

The court held, dismissing the application, that 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. It was surprising that the nature and objectives of the duties cast on a highway authority were not addressed by D and his advisers in any detail. There was a similar lacuna in D's case addressing the law relating to the protection of trees in the Planning Code. Those duties were important, as was their effect, as they set the context for considering the existence, nature and extent of the Council's obligation to execute the works in question. The statutory context was also of particular importance on the issue of the meaning of "improvement" in the TCPA 1990 and in the interpretation and application of the EU Directive on environmental assessment. It was also very relevant to considering the effect of domestic law in the Planning Code on the preservation of trees. D's case on the requirements of domestic law was fundamentally misconceived, and wholly overlooked the relevant statutory provisions. The execution of works on the highway did not constitute development and therefore did not require planning permission nor did the removal or lopping of trees require planning permission. There was no question of a development consent being required nor did any planning function arise. A decision to carry out works of maintenance (including repair), whether or not they had adverse environmental effects, 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 Directive. D had not got close to showing that any decision to fell made by the Council was irrational, or one which no reasonable council could have made. His view that there was an objection of principle to the felling of highway trees was unsustainable in the light of the statutory codes.

On the issue of consultation, there was no failure to consult. The Council had a statutory obligation to keep its highways in proper repair and it could not be right that it was necessary for the Council to conduct a consultation on whether it should perform the statutory duty imposed on it by statute, and in a situation where statute imposed no such obligation. (27 April 2016)