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

When a public authority decides whether to remove a tree in a conservation area, it must take into account the tree’s location and its effect on the area, even where the statutory conservation-area duty under section 72 does not apply. A failure to consider that matter invalidates the decision where it was fundamental to the balancing exercise and there was a real possibility that it would have affected the outcome. Certainty of a different result is unnecessary. Relief is appropriate where the decision was finely balanced and the omitted consideration might have tipped the balance.

The claimant sought judicial review of the defendant local authority’s decision to remove an approximately 70-to-80-year-old tree beside a listed library in the Kennington Conservation Area. The authority had relied on reports concerning the tree’s condition, maintenance and possible impact on the library, and its Cabinet had declined to overturn an officer’s decision to fell it.

The claimant argued that section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 required special attention to be paid to preserving or enhancing the conservation area. Alternatively, she argued that the authority had failed to take into account the tree’s location within the conservation area. The issues were whether section 72 applied, whether the relevant consideration had been omitted, and whether the decision should be quashed.

1. Section 72 duty. The duty in section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 applies only when the authority is exercising one of the functions identified in section 72(2). The authority’s decision to remove a tree owned by it was not the exercise of such a function. Section 72 therefore did not apply.
2. Material consideration. Independently of section 72, the location of the tree in a conservation area was a material consideration. The Cabinet papers, minutes, background report and earlier decision communications did not identify it, and the court was satisfied that the Cabinet had not taken it into account. The court rejected the submission that Cabinet members could be assumed to possess the same local and background knowledge on planning and conservation matters as members of a planning committee. The distinction from R (Trashorfield Limited) v Bristol City Council [2014] EWHC 757 (Admin) and Fabre was material.
3. Remedy. Applying the guidance in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P&CR 343352, the question was whether the omitted consideration was fundamental or whether there was a real possibility that it would have made a difference. The decision was finely balanced, and the conservation-area consideration could have affected the outcome. Certainty of a different decision was not required. The failure was therefore fundamental and the decision of 22 October 2012 was quashed.

First-instance judicial review. The judgment records that an injunction was granted on 27 November 2013 and permission to bring the judicial review was granted on 4 March 2014. The application was granted and the decision of 22 October 2012 was quashed.