Barker, R (on the application of) v London Borough Of Bromley & Anor

An administrative authority’s decision to fell trees in anticipation of a permitted development is not unlawful merely because detailed approval or financing remains outstanding. The question is whether, in the circumstances, the decision falls within the range of reasonable discretionary choices. Relevant matters include the status of planning permissions and challenges, delay to the development, the practical urgency created by the statutory protection of bird nests under the Wildlife and Countryside Act 1981, and evidence as to the trees’ significance. Where the challenge presents no arguable case that the decision is unreasonable, continuation of an injunction restraining the works is inappropriate.

The claimant sought continuation of an injunction restraining London Borough of Bromley and London & Regional Properties from felling or interfering with trees at the former Crystal Palace site. The developer had outline planning permission and approval of reserved matters. The grant of outline permission was no longer challenged, but the approval of reserved matters remained under challenge.

The application was heard in the Court of Appeal on appeal from the High Court, Administrative Court, before Jackson J. The central issue was whether the council’s decision to fell the trees before the development scheme had been approved in all its details and before finance was available was arguably unreasonable in public law.

Lord Justice Dyson refused the application to continue the injunction and discharged it.

1. The claimant’s principal public-law argument was that it was unreasonable to fell the trees before the development scheme had received approval in all its details and before finance was available to ensure that it could proceed. That presented a stiff hurdle, which had not been overcome even arguably.
2. The reasonableness of the council’s decision had to be assessed in its full context. The site was allocated for substantial development, outline planning permission had been granted and was no longer open to challenge, and reserved matters had been approved. The council wished to avoid further delay and to preserve the ability to proceed promptly if the outstanding appeal failed.
3. The timing was material. Unless the trees were felled before the end of February, felling would be unlawful until about October because of section 1(1) of the Wildlife and Countryside Act 1981, concerning damage or destruction of wild birds’ nests while in use or being built.
4. The court also took account of evidence that the trees were planted after the destruction of the Crystal Palace, were not remnants of the Great North Wood, had no identified ecological or strategic visual importance, represented only a small proportion of the park’s trees, and formed part of an approved landscaping scheme.
5. The council’s decision was entirely reasonable and fell within the scope of the reasonable exercise of its discretion. Continuation of the injunction was therefore inappropriate. Permission to appeal was granted on all grounds except ground 2; the matter was expedited, and costs orders were made as stated in the order.

• High Court of Justice, Queen’s Bench Division, Administrative Court: The matter was before Jackson J. The citation of the decision under appeal was not stated.
• Court of Appeal (Civil Division): Lord Justice Dyson refused continuation of the injunction and discharged it. Permission to appeal was granted on all grounds save ground 2, with an order for expedition.