Legal brief: Protecting trees in conservation areas

7th July 2014


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Author

Peter Hutchison

By Keith Davidson, LexisPSL

In R (on the application of McClellan) v Lambeth London Borough Council [2014] EWHC 1964, the court considered a claim for judicial review by a resident against Lambeth council’s decision to fell a tree.

The 80-year-old tree, owned by Lambeth council, stood behind a public library in the Kennington conservation area. The council was concerned that tree roots could damage the library. It commissioned two reports and both found no evidence of damage to the library building. However, in July 2012, a council officer decided to fell the tree – as long as it did not receive any strong objection – and plant a new one nearby. Local residents submitted an independent report from a leading arboricultural consultancy, which stated that over 80 years the roots had not caused any damage and there was a “low” risk of future structural impact.

The council’s cabinet considered the report and decided not to overturn the officer’s decision. The claimant complained to the local government ombudsman, who concluded that the council was entitled to take this decision and found no fault in the process. The claimant then brought a claim for judicial review.

Judge Sycamore held that, although the council had no duty under s72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 to preserve the tree, it was a “material consideration” that it was situated in the conservation area. He said: “Had the members of the cabinet weighed the impact that the loss of tree would have on the character of the conservation area as a whole, there is a real possibility that a different conclusion would have been reached.”
Keith Davidson


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