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.
[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.
[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)
Comments
Post a comment