Dillner, R (On the Application Of) v Sheffield City Council

Highway maintenance includes repair, even where the works are substantial or materially alter the appearance of the highway. The removal of a tree may be part of maintenance where it is dangerous, obstructive, diseased, or prevents proper repair. Such maintenance works are not thereby development requiring planning permission or environmental assessment.

A highway authority is not required to balance the visual or ecological value of a tree against its statutory duty to keep the highway safe and in repair. Judicial review does not permit the court to substitute its view on arboricultural or engineering merits. A duty to consult must arise from statute, promise, established practice or exceptional unfairness. Consultation voluntarily undertaken must be fair, but need not necessarily satisfy every formal consultation principle.

The claimant sought judicial review of Sheffield City Council’s response to opposition to the felling of highway trees under the Streets Ahead highway maintenance programme, operated with Amey Hallam Highways Limited.

He argued that the Council had failed to consult fairly, that tree felling and associated highway works required planning permission and environmental assessment, and that special attention had to be paid to conservation areas under the Planning (Listed Buildings and Conservation Areas) Act 1990. He also challenged the Council’s resolution of 3 February 2016 and sought an injunction preventing further felling.

The central issues were whether the works constituted maintenance or improvement, whether any planning or environmental consent was required, and whether the Council had created a legitimate expectation of wider consultation.

1. Outcome. Permission to apply for judicial review was refused on all grounds. The interim injunction had already been discharged.
2. Under the Highways Act 1980, maintenance includes repair. The duty to maintain the highway concerns the fabric and safe use of the highway. It does not require the authority to preserve trees merely because they are attractive or have ecological, environmental or amenity value. A tree which causes danger, obstruction or prevents repair may properly be removed in performance of that duty.
3. The statutory distinction between maintenance and improvement is decisive. Substantial repair remains repair. Works carried out within the boundaries of a road for maintenance are excluded from development by section 55(2)(b) of the Town and Country Planning Act 1990. Tree felling itself is not development. Highway trees in a conservation area may be felled in pursuance of the statutory maintenance duty without planning consent under the applicable tree-preservation regulations. Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 was not engaged because no planning function was being exercised.
4. The works were not a change or extension of a road within the meaning of the environmental assessment regime. The Directive was concerned with material changes equivalent to construction projects, not ordinary repair, replacement of worn materials, or removal of dangerous or obstructive trees. The claimant’s environmental arguments did not establish irrationality. The applicable standard remained the ordinary judicial-review standard, including Wednesbury principles.
5. There was no statutory duty to consult on the programme, the six-D criteria or individual felling decisions. The Council had not promised a general moratorium or comprehensive public consultation. Its resolutions supported the Highway Tree Forum and Independent Tree Panel arrangements, but did not require the Council to stop felling. Those arrangements did not produce conspicuous unfairness.
6. The challenge to planning and environmental assessment issues was also defeated by undue delay. Those grounds arose when the programme began in 2012. The consultation ground was not refused solely for delay, but failed on its merits.