While section 115 of the Environment Act 2021 introduced a duty on local authorities to consult with members of the public before removing a street tree, it was not until late 2023 that Defra provided guidance as to what this would actually involve. In this article, we look at the process that local authorities are required to follow in accordance with the guidance, and we go on to consider the possible consequences of this particularly in the context of street trees causing subsidence damage.
Notably, the guidance from Defra requires that “local people” have the opportunity to express their views before a qualifying street tree is removed. (We say “qualifying street tree” because the duty to consult does not include certain small trees, nor does it include trees in parkland or rural areas, among various other exemptions). However, there is no definition of “local” within the guidance, which potentially opens up a consultation to people with no local interest or connection to the area.
The local authority must make the public aware of the consultation by placing a notice on the tree in question, providing contact information, details of the proposed tree works, any other engineering solutions that they have considered, and any proposal for replanting. There must also be a notice available for the public to see, either on the local authority’s website or made available at their offices. The consultation period must remain open for at least 28 days, with the local authority to publish their response as soon as possible thereafter, and not later than 28 days before the proposed felling of the tree.
Ultimately, the decision rests with the local authority, which is required to give consideration and weight to any responses “as they see fit”. There is no threshold that needs to be achieved to permit the local authority to remove the tree. While the local authority is encouraged to consider engineering and tree management solutions as an alternative to tree removal, it is entitled to proceed with felling regardless of public opposition (and conversely, to abandon the proposed felling regardless of public support). Further, the guidance confirms that such decisions made on cost grounds are entirely valid.
The results of the consultation are effective for two years. If this period has elapsed, and the tree has not been felled, then a new consultation must commence if the local authority still proposes to remove the tree.
Any member of the public who is unhappy with the decision may make a formal complaint in accordance with the local authority’s complaints procedure. However, there is no obligation on the local authority to retain the tree pending the outcome of the complaint.
In the context of climate change and greater understanding of environmental matters, it is a positive step that the public now has the ability to express their views on matters of such local importance. However, while the duty to consult gives the public a voice, it does not fundamentally give them a say in the final decision. Responsibility rests entirely with the local authority, which is entitled (should it wish) to ignore public sentiment. In such circumstances, a public consultation risks being a cause of delay and an additional strain on the public purse, without having any real power to change the outcome.
The consultation process also risks being hijacked by individuals, groups and organisations that are not necessarily acting in the best interests of the people that the consultation is intended to serve. Political groups, campaigners, disgruntled individuals, and others can all navigate to the local authority’s website and oppose (or support) the proposed tree felling. There doesn’t appear to be any mechanism to restrict the consultation to “local people”, contrary to the stated purpose in the guidance.
Human nature suggests that opponents of tree felling are far more likely to register their opposition than supporters. The potential consequence of this is that a vocal minority may have greater influence than a silent majority. Again, this risks an outcome that is a detriment to the wider local community, and only satisfies the interests of the small number of people who have engaged with the consultation.
In the event that local authorities are indeed swayed by public opposition to tree removal, the effects on the insurance industry (and by implication homeowners’ premiums) may also be significant, particularly if fewer trees are removed regardless of the fact that they are damaging a nearby property. In leafy clay-soil parts of the country, street trees can cause shrinkage subsidence to nearby properties. If those trees are not removed, property insurers are often required to pay for expensive stabilisation schemes such as underpinning or a root barrier to mitigate the drying effects of the tree roots. If local authorities fail to remove such trees, then subsidence claim costs for insurers and their policyholders will increase. In turn, insurance premiums will likely also go up.
This may also result in additional liabilities and a greater spend on claims for local authorities. Public opposition to tree removal does not alter the local authority’s duties to nearby homeowners in the law of nuisance and negligence. If, due to public opposition, the local authority decides to retain a tree that is causing damage, then they potentially face liability for the additional costs incurred by the homeowner (and their insurers) in stabilising the property (which would be avoided if the tree was removed). The volume and cost of such claims are likely to increase if consultations result in more trees being retained. Local authorities may need to recoup this additional expense through council tax revenues.
Overall, therefore, the duty to consult seems to create additional hoops for local authorities to jump through without giving any real say to the public that the consultation is intended to benefit. In the event that public opposition does succeed in persuading a local authority to retain a tree then there are potentially significant financial implications for all stakeholders, which is surely not the intended outcome of the guidance?
If you would like to discuss anything covered in this article, please get in touch.
Gareth Holme
Partner, Lead lawyer, and Vegetation Special Interest Group member
Property Risks and Coverage
The service you deliver is integral to the success of your business. With the right technology, we can help you to heighten your customer experience, improve underwriting performance, and streamline processes.
