Latest on the Sheffield street trees debacle…..judge’s verdict

Posted on April 29, 2016 by ianswalkonthewildside

PETITION UPDATE from Deepa Shetty, Sheffield, United Kingdom

PRESS STATEMENT FROM DAVID DILLNER 

27 APR 2016 —

I am extremely disappointed with the Court’s decision to refuse permission and the decision to dismiss my claim to protect the trees of Sheffield due to the budget implications for the PFI contract and the Council and PFI investors. The judge was fundamentally wrong to view this case through the prism of finance and any increase in the Council’s costs – it is about fundamental fairness through public engagement and environmental protection for the trees of Sheffield which are a great environmental asset.

My legal team does not accept the strident criticism in the judgment and will be appealing the decision to the Court of Appeal before the end of the week on the basis the judge erred as matter of law on the grounds raised in my case. The grounds of appeal are being formulated to deal with the inordinate length of the judgement on what in my view were two very simple grounds of claim relating to the Council’s failure to carry out a lawful consultation and the failure to conduct a full environmental assessment. In my view, supported by the arguments of my legal team, the Court has failed to uphold EU environmental law designed to impose strict obligations on authorities to ensure, prior to taking damaging measures, that the full environmental consequences and alternatives like flexi-paving are fully evaluated to reduce environmental damage.

The judgement on the consultation ground is surprising given the line of questioning the judge put to the Council’s barrister during the hearing.

Mr Justice Gilbart expressed criticism of the conduct of council officers when hearing arguments on the Council’s so called strong leader model of government. The Council told the Court in evidence that the Full Council has “NO POWER TO DECIDE THAT FELLING SHOULD CEASE NOR HOW THE PROGRAMME OF WORKS TO HIGHWAYS SHOULD BE CARRIED OUT.”

What this means to my case is the local government of Sheffield is being made subservient to the financial interests of private finance syndicates who stand to make millions from the £2.2 billion Streets Ahead Project. This simply cannot be right in a democracy when the investors are in fact the citizens of Sheffield who underwrite the PFI contract through their rates.

I will be seeking the Council’s immediate assurance that it will not recommence felling until the Court of Appeal has considered whether to grant permission for my case to be heard. Given that the proceedings remain in dispute I look forward to discussing with the Council officers an agreed way forward to ensure no unnecessary felling ensues in the short term.
Save Sheffield’s Trees

Sheffield is known as one of the greenest cities in Europe. We’re proud of our city and we’re a great example to other cities in the UK and Europe. But this is now under threat! 50% of Sheffield’s mature street trees may be at risk of felling.
https://www.crowdjustice.co.uk

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5 Responses to Latest on the Sheffield street trees debacle…..judge’s verdict

  1. Lammergeier says:
    May 1, 2016 at 9:37 pm

    THE REALITY

    Well, all mature street trees (27,000) face being felled, as both Amey & the Council believe they are near the end of their lives and, as such, to quote the Deputy Leader of the Council, they:

    “…actually face a catastrophic decline in the number of trees in 10 or 20 years’ time. It’s precisely Streets Ahead that’s actually solving that problem.”

    The 18,000 limit only applies until 2018. Excuses can easily be found to fell the remainder. Comment from

    On 23rd July, 2015, at the inaugural meeting of the Highway Trees Advisory Forum, Darren Butt (Operations Director for Amey: the man responsible for all Highway Maintenance for the next 25yrs or so) commented, with regard to use of the planing machine in close proximity to trees:

    “The majority of, err, tree roots are actually in the upper sixty mill [sic] of the, err, of the surface and therefore removing the top layer will remove and be extremely detrimental to those trees. I appreciate the problem. This gentleman’s trees were surviving well; the trouble is, when you see them in absolute blossom, and they are green, you think they’re safe and will continue to thrive, which is sometimes, can be, almost a pinnacle before they fail. So, hopefully, your tree doesn’t, but, err, that does happen.”

    On 19th February, 2016, the information commissioner recently completed an investigation (Case Reference Number FS50596905) in to a previous Freedom of Information request response issued by Sheffield City Council (request reference – FOI / 422, dated 6th July, 2015). It revealed that even though the Streets Ahead project is over three years in to a five year programme of highway resurfacing, lighting and felling, neither Amey or the Streets Ahead team have ever commissioned or draughted any ALTERNATIVE HIGHWAY ENGINEERING SPECIFICATIONS FOR FOOTWAY, EDGING (KERB) OR DRAIN CONSTRUCTION that could enable the safe long-term retention of mature highway trees (27,000 trees: 75% of the population), without unacceptable compromise to tree health or structural integrity.

    Source: https://www.whatdotheyknow.com/request/full_work_contact_details_for_sc?nocache=incoming-787219#incoming-787219

    The FOI / 422 request was:
    “Under the FOI act, I request the SPECIFICATIONS for the range of options that were considered and deemed to be impracticable, for the 11 healthy trees due for felling on Rustlings Road.”

    Also, “Streets Ahead have justified felling (e.g. on Abbeydale Park Rise) on the basis that the machine that is used to remove tarmac during pavement resurfacing works may damage roots, thereby increasing the likelihood of disease and trees subsequently becoming unsafe and dangerous. Streets Ahead have even prescribed felling on the basis that mowers or excavations by Streets Ahead operatives could damage roots and lead to the same consequences.”

    Source: “SORT Letter To The Cabinet Member For Environment & Transport (Cllr Terry Fox), dated 14th July, 2015” – accessible via the following links:

    https://www.stocksbridgecommunity.org/news/street-trees-3-month-ban-all-tree-felling-city

    http://www.savesheffieldtrees.org.uk/resources-and-links/

    Reply
  2. Lammergeier says:
    May 2, 2016 at 11:25 am

    NEWS & VIDEO

    Some local news coverage of the Sheffield citizen campaign for responsible tree population management: the call for a tree strategy to guide and inform policy & decision making (including video of lead SORT campaigners…

    http://www.thestar.co.uk/news/residents-outrage-over-tree-felling-decision-in-sheffield-street-1-7281703

    (Darren Butt – Amey’s Operations Director for the city-wide £2.2bn “transformational” Streets Ahead highway maintenance PFI project – is the man in the suit, on the right of the picture).

    http://www.thestar.co.uk/news/everyone-s-trees-are-under-threat-sheffield-campaigners-final-call-to-hit-5-000-petition-mark-and-spark-debate-1-7318369

    http://www.thestar.co.uk/news/sheffield-residents-stage-vigil-to-stop-tree-felling-as-8-000-strong-petition-handed-in-1-7321389

    http://www.thestar.co.uk/news/video-what-happened-to-us-keeping-it-green-sheffield-stars-toddla-t-and-coco-back-city-s-tree-campaign-1-7579348

    http://www.thestar.co.uk/news/row-over-sheffield-tree-felling-set-to-ramp-up-in-2016-1-7641587

    Reply
  3. Lammergeier says:
    May 2, 2016 at 11:45 am

    Oops! Please substitute the word “planning” for “planing”. There is some really dumb auto-correct function in operation on this blog that keeps changing words. Unfortunately, I don’t always notice and there is no edit function. 😦

    Reply
  4. Lammergeier says:
    May 3, 2016 at 3:26 pm

    HIGHWAY TREES: THE LEGAL BATTLE CONTINUES
    HIGHWAY TREES: THE LEGAL BATTLE CONTINUES

    Last week, on 27th April, 2016, a high court judge ruled that Sheffield’s Streets Ahead project could continue, without amendment to policy, strategy, management or practice [1]. The city-wide felling of Sheffield’s mature highway trees is therefore legally allowed to continue, without constraint.

    At the start of the Streets Ahead project, in August 2012, Sheffield’s mature highway trees numbered 27,000 and accounted for 75% of the tree population in the highways land use category [2].

    ALL DEAD, DYING and DANGEROUS highway trees WERE FELLED BEFORE AUGUST 2015.

    At the inaugural meeting of the “bi monthly” Highway Trees Advisory Forum (which has not met since 2nd September, 2015), on 23rd July, 2015, Steve Robinson (SCC HEAD OF HIGHWAY MAINTENANCE) commented:

    “So, why the 6D’s then? … our underinvestment and underfunding left us with a number of DEAD, DYING AND DANGEROUS trees. Some of you would be surprised that there were 1,200 trees* that were within that category. So, AMEY IDENTIFIED THOSE TREES AND ADDRESSED THOSE FIRST.”

    “So, just to give you a summary of where we are today, there’s been 2,563 highway trees removed because they met one of the 6Ds and there was NO OTHER RECTIFICATION that we could carry out.”

    “Our next priority is to improve the condition of our roads and pavements. So, in other words, deal with the DAMAGING trees – those trees that are damaging kerbs, pavements and drains.”

    “So, we’re now looking to deal with DISCRIMINATORY trees, which is the final 6th D, and those are trees that block the pavements, affecting those people that have mobility issues.” [2]

    To 5th February, 2016, when the High Court prevented the unnecessary felling of highway trees [3], 3,670 mature highway trees felled so far as part of the £2.2bn, city-wide, “transformational” Streets Ahead “improvement” project that claims to deliver BETTER management [2].

    Thanks to an investigation by the Information Commissioner’s Office (case FS50596905, dealing with FOI 422), we now know that even though the Streets Ahead project is over three years in to a five year programme of highway resurfacing, lighting and felling, neither Amey or the Streets Ahead team have ever commissioned or draughted any ALTERNATIVE HIGHWAY ENGINEERING SPECIFICATIONS FOR FOOTWAY (PAVEMENTS), EDGING (KERB) OR DRAIN CONSTRUCTION that could enable the safe long-term retention of mature highway trees, without unacceptable compromise to tree health or structural integrity [4]. This is shocking, as most of the mature highway trees are likely to be associated with some level of DAMAGE to footways or edging.

    On 23rd July, 2015, at the inaugural meeting of the Highway Trees Advisory Forum (HTAF), Steve Robinson (SCC Head of Highway Maintenance) commented:

    “So, just because a tree is diseased doesn’t mean to say that that tree needs to be replaced. …IF AN ENGINEERING SOLUTION CAN BE APPLIED, THEN IT WILL BE APPLIED. Err, there was a lots of comment made earlier on about whether a tree is removed as a last resort; and A TREE IS REMOVED AS A LAST RESORT.”

    During the initial five year period of the project – the Core Investment Programme – about 70% of the City’s footways will be resurfaced: 1,435 miles. By December 2015, approximately 790 miles had been done [2]. Citizens have noted that until May last year, Amey concentrated on roads on the outskirts of the city where there were fewer parked cars, less street furniture, fewer residential properties, and very few trees in footways or in close proximity to the carriageway. This enabled them to hit Key Performance Indicator “milestones” relatively quickly and achieve bonus payments [2]. It meant they could claim to have done an impressive mileage of resurfacing and provided great PR opportunities.

    This is a good point to highlight the content from an interview with SCC Head of Highway Maintenance (Steve Robinson), reported in Transportation Professional, in 2011 [5]:

    “Under the Streets Ahead contract Amey is paid a fixed fee by the council but has 753 KEY PERFORMANCE INDICATORS TO HIT, some measured monthly, some annually. If the KPIs are missed there are penalties in the form of “service deductions”, ie Amey doesn’t get part of its fee. “We only pay for what we get,” Mr Robinson says.

    There are also milestones THE ACHIEVEMENT OF WHICH GENERATES A NEW TRANCHE OF FEE from the council. And if new works are accrued into the project THERE IS A MECHANISM TO CHANGE THE SCOPE OF WORK.”

    Now they are in the city proper, in densely populated residential areas, where there are many problems, including highway trees, it will not be so easy to hit KPI targets and there WILL be greater incidence of conflict. Therefore, A MASSIVE STEP CHANGE IN THE RATE OF FELLING CAN BE EXPECTED and that is, indeed, what we have seen. The numbers felled since July 2015 evidence that this IS the case.

    Both the Council and Amey claim to comply with “best practice”. However, the Streets Ahead team have justified felling healthy, mature highway trees that are structurally sound, on the basis that the machine that is used to remove tarmac during pavement resurfacing works may damage roots, thereby increasing the likelihood of disease and trees subsequently becoming unsafe and dangerous. Streets Ahead have even prescribed felling on the basis that mowers or excavations by Streets Ahead operatives could damage roots and lead to the same consequences [2].

    However, if Amey really did comply with guidance of the National Joint Utilities Group (which they claim to comply with, but do not), trenching and tarmac lifting machinery would NOT be used within a radius from the tree trunk equal to 4x stem circumference – measured at 1.5m above ground (the NJUG “Protection Zone”) [6].

    Alternatively, if they complied with British Standard 5837: 2012 (which they claim to comply with, but do not), then MACHINERY WOULD NOT BE USED FOR EXCAVATION (SUCH AS DIGGING TRENCHES OR HOLES) IN CLOSE PROXIMITY TO TREES: not within the drip-line of the crown, or a distance from the stem equal to 12x the stem diameter at 1.5m above ground, whichever distance is greater [7].

    CONTENT OF THE LATEST JUDGEMENT STATES:

    “Stephen George Eccleston, who is Assistant Director of Legal Services for SCC, gave
    evidence explaining the governance at SCC. Inevitably, part of it included accounts of
    the legal framework.

    The evidence of Mr Eccleston is that THE FULL COUNCIL HAS NO POWER TO DECIDE THAT FELLING SHOULD CEASE, NOR HOW THE PROGRAMME OF WORKS TO HIGHWAYS SHOULD BE CARRIED OUT.

    He points out also that as the work is being done under a contract, a change in the contract to require the cessation of tree felling would have costly consequences.

    The risk for highway claims currently falls on Amey under the contract. IF TASKS NECESSARY TO ACHIEVE PROPER REPAIR AND MAINTENANCE COULD NOT BE UNDERTAKEN, THEN THE RISKS WOULD BE PASSED BACK ON TO THE COUNCIL, WITH SERIOUS CONSEQUENCES FOR ITS BUDGET.

    Mr Eccleston contends that THE FULL COUNCIL DOES HAVE THE POWER TO REFER A MATTER TO THE SCRUTINY COMMITTEE, OR IT CAN REFER THE MATTER TO THE CABINET OR TO THE MEMBER OF THE CABINET CONCERNED.” [1]

    It should be noted that, as SAVE OUR ROADSIDE TREES (SORT) campaigners have always, rightly, pointed out:

    ALL STATUTORY DUTIES CAN BE ADEQUATELY FULFILLED, AND MATURE TREES SAFELY RETAINED, LONG-TERM, BY HAVING APPROPRIATE HIGHWAY ENGINEERING SPECIFICATIONS, AND BY COMPLIANCE WITH CURRENT ARBORICULTURAL GOOD PRACTICE. [8 & 2]

    Mr Eccleston’s comment that: “THE FULL COUNCIL HAS NO POWER TO DECIDE…HOW THE PROGRAMME OF WORKS TO HIGHWAYS SHOULD BE CARRIED OUT” [1] appears to contradict Steve Robinson’s previous comment:

    “And if new works are accrued into the project THERE IS A MECHANISM TO CHANGE THE SCOPE OF WORK.” [5]

    However, it is of the utmost importance to remember Mr Eccleston’s assertion that:

    “THE FULL COUNCIL DOES HAVE THE POWER TO REFER A MATTER TO THE SCRUTINY COMMITTEE, OR IT CAN REFER THE MATTER TO THE CABINET OR TO THE MEMBER OF THE CABINET CONCERNED.” [1]

    At the most recent “bi-monthly” Highway Tree Advisory Forum meeting (HTAF), on 2nd September, 2015, the Cabinet Member for Environment & Transport – Cllr Terry Fox (self-appointed Chair of the “bi-monthly”) stated that the Council was not prepared to make any amendment to the Amey PFI contract for the Streets Ahead project because:

    “We’ve got a Core Investment Period that we’re going through. Yes, there is a CONTRACTUAL OBLIGATION. Of course there is; we’ve entered in to a contractual obligation; an obligation that says that they are [sic] PAYMENTS made, each monthly, and we, err, run through that, err, contract. We also have the contract and a [sic] agreement with DfT that we have to, err, adhere to, to inform them; because, obviously, they are the BACKERS of, of part of this. We’ve got the MONEY LENDERS and the – the, the, the, the, the, the – PARTNERS in, in the, err, CONTRACTORS to deal with.”

    Prior to that, in an e-mail dated 28th August, 2015 [2], Cllr Julie Dore (Leader of the Labour Council) informed that Cllr Fox had advised her about the request for a moratorium on felling. She quoted Cllr Fox, as follows:

    “The request for a moratorium in the works will have a major impact on the scheme especially with the risk to zonal works and confidence from the lenders.

    THE KEY POINTS OF THE MORATORIUM:

    • This has to be by agreement with lenders – which we are extremely unlikely to get – and if we did it would take 12 months stalling the whole of the ‘Streets Ahead’ programme.

    • Sign off is required from DfT and Treasury

    • During this process we are legally bound to maintain payment within the contract, with costs to the council that in the current Government public spending cuts are virtually impossible to find

    • We would need to obtain insurance at major cost

    • The moratorium would affect all core works – footways, lighting and carriageways

    • The approach to lenders, DfT and Treasury would put at risk the financing of the project”. [2]

    Commenting on Cllr Fox’s decision not to have a moratorium on felling (prior to the High Court injunction [3]), the Streets Ahead team stated:

    “I want to be clear that FINANCIAL IMPLICATIONS HAVE NO BEARING ON THIS PARTICULAR DECISION, for the reasons Councillor Fox outlined in the last tree forum.”

    It is worth remembering the words of Graeme Symonds (Amey’s Core Investment Programme Director, responsible for all lighting and resurfacing works during the Core Investment Programme of the Streets Ahead project: also an “expert” on the HTAF on panel):

    “If there was a moratorium, it would. If Terry came to me and said: ‘don’t fell any more trees, err, until, erm, for, for a month’, or whatever, the knock-on effect of that on the rest of the service that we’re delivering and the residents.”

    Those words were spoken at the second HTAF meeting, before the injunction. Rather unsurprisingly, the assertions made by Amey’s CIP Director did not prove to be valid. It is worth noting that on 9th December, 2015, citizens were told that the HTAF meetings are “LED BY THE STREETS AHEAD TEAM”. That helps explain why there has not been a third meeting.

    However, regardless of all this comment about lenders and financing, the Council had been meeting with lenders to refinance the Streets Ahead project, for other reasons, so it would appear that the Amey PFI contract for the Streets Ahead project can be amended and that neither that or refinancing is not as problematic as the Council and Amey have made out [9].

    The campaign for SUSTAINABLE tree population management, ADEQUATE, BALANCED ASSESSMENTS, and EVIDENCE-BASED policy and decision making – in compliance with current arboricultural and urban forestry good practice – continues [10].

    Please feel free to get involved and help shape policy and decision making that affects your city, including your neighbourhood and your health & wellbeing [2].

    Reply

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