Andrew Brenner, R (on the application of) v Haringey London Borough Council

A public authority may decide to remove a tree causing subsidence where removal offers a lawful financial or risk-management advantage. It need not await, or treat as determinative, a Financial Ombudsman Service decision concerning private insurance contracts. A duty to reconsider an administrative decision arises only where a new circumstance is so obviously material that no rational decision-maker could fail to reconsider, subject to any applicable statutory scheme. The authority may assess the risk of further damage even after underpinning, provided the assessment is not based on a material factual error. Where one property alone gives a sufficient lawful basis for removal, the authority need not show that identical considerations apply to every affected property.

The claimant lived in a house affected by subsidence allegedly caused by a council-owned tree. The Council, also the highway authority, decided to fell the tree after considering an insurance-related claim concerning a neighbouring property, the potential liability arising from continuing damage, and the available technical evidence.

The claimant challenged the decision and the Council’s failure to reconsider it after further information emerged, including provisional Financial Ombudsman Service decisions recommending underpinning and a letter from the neighbouring owners asserting that they would pursue underpinning regardless of whether the tree was felled. The issues were whether the Council had failed to take relevant matters into account, should have made further enquiries, or was under a duty to reconsider its decision.

1. Permission and outcome. Permission to proceed on the amended grounds was granted, but the substantive claim for judicial review was dismissed.
2. The Council was entitled to consider the actual claim made concerning number 61. Removing the tree would substantially reduce its potential liability, while the owners were not committed to underpinning. The possible Financial Ombudsman Service decisions concerned private insurance relationships. They were not binding on, or enforceable by, the Council, and any recommendation might not result in actual underpinning.
3. The position concerning number 63 did not require a different result. Even assuming underpinning would occur there, the factors supporting removal in relation to number 61 were unaffected. One property supplied a sufficient lawful basis for the decision.
4. The Council was not obliged to await the Financial Ombudsman Service process, make further enquiries, or treat the information relied on by the claimant as materially relevant. The recommendations relied on had in any event been rejected by the insurers when the decision was made.
5. A duty to reconsider arises only where circumstances have changed in a way that is so obviously material that no rational decision-maker could fail to reconsider, or where a statutory or comparable scheme permits discretionary non-enforcement or reversal of an adverse decision. Neither the provisional decisions nor the neighbouring owners’ later letter met that threshold.
6. Although not necessary to the principal reasoning, the Council was also entitled to consider the minimal residual risk of further damage after underpinning. It could balance that risk against the tree’s relatively low asset value and conclude that removal was proportionate.

The judgment refers to an earlier judicial review challenge concerning an earlier tree-felling decision. Permission had been granted by the Court of Appeal, but that claim was subsequently settled after the Council withdrew the earlier decision and invited further representations. The present claim was determined at first instance.