THE ENVIRONMENT BILL AND STREET TREES

The Environment Bill contains an interesting proposal in relation to street trees and which will be of great importance to highway authorities.  Unfortunately, it is let down by problematic draftsmanship.

My original feeling was that this would be a short introduction to a conceptually straight-forward set of draft provisions.  Unfortunately, one comes across problems of draftsmanship from the outset and so the piece is much longer than I ever intended.  So be it !

Introduction

Trees are, at the same time, both important and problematic.  On the one hand, they make an important contribution to the reduction of carbon dioxide, add to the character and appearance of both urban and rural areas, aid the mitigation of unpleasant particulates, aid sustainable drainage and can be of cultural importance to those who see them as providing to a ‘sense of place’.  On the other hand, they can disrupt footways, shed leaves (which can make footways slippery), obstruct highway visibility and can be a road-side hazard for rod-users.  Many of these disadvantages can be managed, but this can be costly.  Thus a balance must be struck. The proposed clauses are intended to assist highway authorities in striking this balance by the general requirement that proposals to remove street trees should be subject to public consultation. 

It might be argued that local councillors should be responsive to local opinions, therefore political accountability exists in any event.  The counter is that these provisions have the advantage to providing particular focus on particular proposals by way of a transparent and structured approach.

Problems of interpretation

The Bill proposes that these proposals take effect as a new section 96A in the Highways Act 1980.  This brings with it the consequence that the interpretation of them must spring from the approach which is taken to the 1980 Act itself.  Something which is, perhaps, a mistake.  The problem is that the 1980 Act is a very difficult one to construe and has caused much puzzlement to highway lawyers over many years. 

The proposals refer to “street trees”, therefore the first question is, of course, what is meant by the word “tree” ?.  This has been the source of much debate in the courts, in connection with similar legislation, but assistance is provided by proposed section 96A(3)(a), which states that the duty does not apply in a case where the tree has a diameter not exceeding 8 centimetres (measured over the bark, at a point 1.3 metres above ground level).  This will exclude bushes, shrubs and hedgerows.[1]  In cases of doubt, it is arguable that the usual rule of interpretation will apply; namely, that the courts will try to achieve consistency of meaning across cognate legislation.[2]

Then what is meant by the phrase “street tree”?  The Bill defines it as being “a tree on an urban road”.  An “urban road” means a highway, other than a trunk road or classified road, which:

“ (a) is a restricted road for the purposes of section 81 of the Road Traffic Regulation Act 1984 (30 miles per hour speed limit),

(b) is subject to an order made by virtue of section 84(1)(a) of that Act imposing a speed limit not exceeding 40 miles per hour, or

(c) is otherwise a street in an urban area.”

This definition was, plainly, lifted from section 42 of the Highways Act 1980, but brings with it the difficulties of interpretation which already attend that provision.

The first point of difficulty is the use of the word “highway”. 

The word “highway” is not comprehensively defined in the Highways Act 1980.[3]  The expression “highway” is a generic one which derives from the Common Law and includes different types of ‘highway’; including, carriageways, footpaths, bridleways, and footways.  In the absence of qualifications by word or context, highway lawyers usually start with this generic meaning in approaching the 1980 Act.  Ironically, section 42 of the 1980 Act itself begins by saying that it applies to footpaths, bridleways, and restricted byways. 

If the intent was to encompass highways which are carriageways maintainable at the public expense (ie ‘adopted’ highways) then this drafting falls short of the mark by a long way.  The clause does not use those words; notwithstanding that the Highways Act 1980 draws a clear distinction between adopted and unadopted highways.

The inclusion of streets “in urban areas” could, easily include highways that are maintained at private expense.  This raises another unnecessary interpretational problem.[4]  Particularly given that there is, now, a tendency for many highway authorities to seek to pass maintenance responsibilities to schemes involving private management companies.[5]

Arguably, the word “street” should be construed in accordance with the definition of that word in the Highways Act 1980 itself, because the new provision is inserted into this Act.  Unfortunately, as is often the case with consolidating legislation, the statutory words in the 1980 Act derive from different sources and so tend to be confined to particular subject matter only.[6]  The word “street” is defined in section 329(1) as having the same meaning as in the New Roads and Street Works Act 1991.  Section 48(1) of the New Roads and Street Works Act 1991 defines a “street” as follows:

“ In this Part a "street" means the whole or any part of any of the following, irrespective of whether it is a thoroughfare-

 (a) any highway, road, lane, footway, alley or passage,

 (b) any square or court, and

 (c) any land laid out as a way whether it is for the time being formed as a way or not. “

The vegetation [7] becomes more tangled when one considers that section 48(1)(a) of the 1991 Act uses the phrase “road, lane, footway, alley or passage,” in addition to the preceding word “highway”, can be construed to mean that this part of the definition is not limited to highways – otherwise the words following “highway” would be redundant.  The reference to “ any land laid out as a way whether it is for the time being formed as a way or not “, in section 48(1)(c), clearly encompasses ways which are in the course of construction.  This makes sense when one is, for example, considering the application of the Advance Payments Code, but it makes no sense when applied to ‘street trees’.

The exclusion of trees in classified roads is also puzzling.  Why classified roads ?  In England, these are "A" Class roads (also known as ‘Class I’ roads) and B" Class roads (or ‘Class II’).  Given that many classified roads pass through, and contribute to, urban areas, this seems odd. Again, one wonders with this has more to do with cutting and pasting section 42 rather than a considered approach.

Then there is the obvious question of what is an “urban area” in (c) ?  This term is not defined in the 1980 Act. Nor is it defined in the Bill.  Section 42 of the 1980 Act uses the phrase without definition and one is left to wonder whether section 42 itself was lifted from an earlier statute when the boundaries of urban district councils were well drawn.[8]  True, the Countryside Agency once provided a global definition[9]  The pertinent question is not “what does it mean ?”, but “why is it not defined ?”  It should not be for the reader to cast around to try and find a definition.

There is, also, the important preliminary point about where the boundaries of a “street” lie.  A local highway authority’s direct responsibilities relate to trees within the boundaries of the highway, and the determination of those boundaries is not always straightforward.[10]

If a tree sits outwith a highway boundary, then a highway authority is able to require its pruning or removal by invoking the procedure under section 154 of the Highways Act 1980.  This procedure is based on highway safety only and does not include consideration of the aesthetic or environmental value of the tree.  The new provisions will not apply to this situation.

The duty to consult will be subject to certain statutory exceptions.  They are: 

[i] The authority considers that the street tree is dead. 

[ii] The authority considers that the street tree is required to be felled by virtue of an order under the Plant Health Act 1967, or under any enactment on the basis that the tree is dangerous. 

[iii] The authority considers that the street tree is required to be felled in order to comply with a duty to make reasonable adjustments in the Equality Act 2010 because the tree is causing an obstruction (see section 20 of that Act), or a duty in section 29 of that Act (prohibitions on discrimination etc in the provision of services) because the tree is causing an obstruction. 

[iv] The felling of the street tree is required for the purpose of carrying out development authorised by planning permission granted under section 70, 73, 76D, 77 or 79 or 92 of the Town and Country Planning Act 1990.

As to my [i], the authority would be well advised to obtain a report from an expert in considering the mortal condition of the tree.  As with all public law discretions, the authority’s deliberations will have to comply with the ‘Wednesbury Principles’ notwithstanding the apparently subjective language of the provision.

On [ii], it would have been sensible to include trees which are causing a common law nuisance or would do so in the foreseeable future.  Local highway authorities have, historically, carried legal liability for damage caused to nearby properties by tree roots and the solution may, in many cases, be the removal of the tree. [11]  As well as encroachment, there is also the problem of a dangerous tree which may endanger road-users.  The Plant Health Act 1967 is aimed at the control of pests and diseases injurious to agricultural or horticultural crops, or to trees or bushes. 

The consultation procedure

The proposals for the consultation procedure are in outline only at this stage. In essence, a local highway authority in England must consult members of the public before felling a tree on an urban road (a “street tree”) and must have regard to any guidance given by the Secretary of State to local highway authorities about how to discharge the duty to consult.

The duty to have regard to guidance from the Secretary of State means that further and better particulars are matters for the future.

Conclusion

The adoption of a consultation procedure will add further to the burdens carried by already under-resourced local authorities.  However, hopefully, it will go to ensure that they do not face unnecessary criticism on this emotive topic as they go about the very important task of keeping roads safe.

The unfortunate problem is that the way in which the Bill has been drafted leaves a lot to be desired.  To be blunt, it is difficult to believe that the draft was vetted by someone with an understanding of basic highway law.  To this extent, it should go back to the drawing board.

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[1] For hedgerows, see the Hedgerows Regulations 1997.

[2] See Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436 (HL).  The other statute must be ‘in para materia’.  Leaving aside the matter of trunk diameter, the word ‘tree’ will, presumably, be given its ordinary meaning: see Bullock v Secretary of State for the Environment & Malvern Hills DC [1980] JPL 461.

[3] See section 328(1).

[4] It actually raises two, see below !

[5] One answer might be that management companies are often run by the residents of each estate, but there is always the danger that those running a freestanding management company might choose to cut down trees to reduce their maintenance costs.

[6] I sometimes say that the two ends of the Act do not meet in the middle.

[7] Sorry, but the idea of using an arboricultural metaphor was irresistible

[8] That is, an ‘urban road’ was a road which fell within an urban district.

[9] Research notes Issue: CRN 86 Date: September 2004.  But this definition does not have the refinement which is needed to apply it on a street by street basis. The Office for National Statistics appears to use a definition based on areas of urban land use of 20 hectares or more with 1,500 or more residents, but, again, this is not appropriate to the present task.

[10] See my recent blog on the width of the highway

[11] See Russell v Barnet LBC (1984), Hurst v Hampshire C.C. (1997) and L.E. Jones (Insurance Brokers Limited) v Portsmouth City Council (2002)