The plight of Sheffield’s trees is well known: you’ve probably seen articles in the news with Sheffield residents and famous faces up in arms over the dramatic changes to the city’s streets. But alongside the anger and passion there is a question: how can such a seemingly dramatic programme of felling be allowed to be carried out in an era of unprecedented red tape and environmental protection?
This is an issue that falls squarely within the remit of landscape architects but beyond protesting and tweeting as individuals, I have seen very little engagement from practices or our institute (I include myself in this) and it feels that as a profession, we have really dropped the ball. One of the most vocal people in this case is Professor Stevenson, from the Department of Architecture at the University of Sheffield- but where are the corresponding big hitters from the world of landscape? After all, if public streets and trees are not our area of expertise, what is it we think we’re doing? There is of course an understandable consideration that landscape architects are professionals who must act with balance, act within our Code of Conduct and who act for clients (which means it’s how we earn our living, and in this instance, no landscape architects have been appointed by a client to oppose SCC / Amey)- what I want to explore here is what landscape architects can do to support Stag so late in the day.
Sheffield’s trees are a significant part of the townscape character and however the trees have been thought of historically, the Streets Ahead programme and the opposition it has provoked have only served to increase the importance of street trees to Sheffield’s identity. Time and again, when meeting landscape architecture or dendrology colleagues around Europe, people ask me is what’s happening to Sheffield’s trees and how it can be allowed to happen. David Caulfield (Director of Development Services of Sheffield City Council) has highlighted the scale of the issue, pointing to the 2,000km of roads within the city and the 36,000 trees that line them. But no matter how important the trees are to the city, it does beg the question as to why the City Council has allowed the care of the urban forest to become so underfunded and poorly managed. By contrast, London has approximately 14,800km of streets, lined by 500,000 street trees- 33 trees per km compared to Sheffield’s 18 trees per km, and it seems to be able to manage the urban heritage without serving injunctions on its residents.
There is a great deal of work that is being coordinated by the Sheffield Tree Action Group (Stag) and on the eve of an important court decision, I don’t want to comment on the important work that they are doing- there has already been a great deal written in the national press (unusually, Private Eye, the Guardian and the Daily Mail all agree on the importance of this scandal). Instead I wanted to focus on two aspects of the issue- the Streets Ahead programme and the laws surrounding urban trees.
The Streets Ahead programme is the natural starting point (you can find the documents here) and a number of issues jump out. The first is that there seems to be a conflict of interest not only in the drafting of the documents but in their execution. In the judgment of the Dillner vs SCC & Amey Hallam, David Caulfield gave evidence that it was agreed that the Streets Ahead would have no impact *before* any assessments were carried out (para 47). How on earth could they have reached a decision like this about such a huge and complex project- one that is trumpeted as the largest highway investment contract SCC have ever awarded- without weighing independent evidence? Nevertheless, with this conclusion already reached, the Environmental Scoping Assessments were carried out by Amey’s staff and then approved *by Amey’s own staff* rather than the Local Authority Tree Officers (para 48), a procedure that surely raises questions about integrity and protocol.
Moving into the documents, Streets Ahead’s strategic goals seem designed to create tensions, rather than provide a clear ‘line of sight’: the goals are often conflicting, providing no guidance to how they might be resolved. How do SCC or Amey intend to reconcile, for example, the opposing goals of “minimising future costs” against “improving compatibility with the environment through holistic highway design”? Even if minimisation of costs (a necessary aim in an age of austerity) is a key goal, how is this reconciled with well-known research that shows that newly planted trees have a life expectancy of 12-15 years – and will therefore increase down-stream costs?
Within the ESA’s, arboricultural or landscape architecture best practice does not appear to have been followed, with suggested replacement tree species including Taxus baccata, Sequoiadendron giganteum in prominent positions, and Platanus x hispanica in narrow verges- species that no landscape architect would recommend if managing future costs were a consideration. Similarly, when challenged, the ESA’s have been found to be inadequate, such as in Mr Robin Ridley’s case on Western Road, Crookes and the advice overturned.
Amongst the many frustrating aspects of this poorly designed programme is the feeling that there is no opportunity to overturn or meaningfully challenge a botched contract. At this point, it’s worth turning to the law to see how so many trees can be felled and such a dramatic, long-term change to the city’s character can be carried out.
The law relating to urban trees
The first question most landscape architects would ask is ‘why was an Environmental Impact Assessment not carried out?’ The ESA’s that Amey carried out borrow from the methodology of this process (even if they were diluted in scope, detail and protocol), which seems to acknowledge this route. Indeed, this was a key part of the Dillner vs SCC & Amey case, with a large part of the judgment devoted to it. But applying the EU Directive for EIA to urban forestry is problematic for two key reasons. Firstly, the Town and Country Planning Act of 1990 clearly states that Planning Permission (the first step in this process) is only required when ‘development’ is proposed. Development here has a very precise definition (see 55 (2) (b)), and unfortunately “works within the boundary of a road by a highway authority” come under this category. The second part relates to the Highways Act of 1980, which places a duty on a local authority to maintain a highway, and a provides a power to carry out improvements. Under this Act, maintenance includes the kerbs, verges and trees within the highway, meaning that not only does this work not trigger a planning application but that SCC (or Amey in this case) are obliged to carry this work out.
So, the law here is pretty clear: Amey do not need planning permission to carry out the Streets Ahead programme but I don’t think this should be the end of the discussion. After all, planning control is a creature of statute, an “imposition of public interest of restrictions upon private rights of ownership of land,” and as public interest has changed over the past twenty years, so too should the law.
There are three aspects here that could be considered: firstly, the definitions of ‘road’ and ‘highway’ were deemed to be irrelevant in the Dillner case but I beg to differ: Mr Justice Gilbart wrote that a common sense approach is needed here and perhaps this is where landscape architects and planners should step in to enlighten our judges about the changing uses of the highway. As behavioural patterns change (and will only continue to change in the near future as a result of new vehicle technology and increased cycling), the primacy of the private car will fade and the uses of the road and the pavement will change. This might seem a small point, but it has significant implications and at the very least, the Highways Act of 1980 surely should recognise that there are different uses and functions of a highway.
Similarly, the term ‘engineering’ is key in the TCPA 1990, with ‘engineering activities’ being one of the fundamental definitions of “development.” As we learn more about the traits and uses of plants in urban environments, many are questioning whether plants are engineering tools- a valid question given their role in managing storm water and air quality, and whilst this might seem an esoteric argument, perhaps there should be a test of what constitutes ‘engineering’ and if we can ‘bio-engineer a street.’
Thirdly, the definition of forestry used in the domestic Regulations which apply to EU Directives for environmental assessment seem narrow and out of touch with current arboricultural and forestry research: we need every tool in the box to mitigate and adapt to a changing climate and our laws should be part of this. At the moment, “deforestation” only triggers EIA on sites over 1 hectare in size, a principle that seems futile in the case of an urban forest which can cover vast areas (in this case, 36,000 trees).
The work that Stag and many others in Sheffield are doing is so important in terms of maintaining a high profile for the cause and holding SCC and Amey to account but I feel that they have been neglected by landscape architects and arboriculturists: there is so much that professionals, academics and our professional bodies can do to challenge the terms of the PFI contract and the laws relating to urban forestry, especially as the first five year period of the Streets Ahead programme draws to a close and our opportunities to influence the next phases increase.
In the first instance, we should be inspecting and if necessary, challenging the Environmental Scoping Assessments that were carried out. This is no small task: the City was assessed across 180 wards and each ESA needs to be provided (likely via a Freedom of Information request) and then reviewed by professionals who are suitably qualified. Nevertheless, the evidence so far is that there is plenty to challenge in the methodology and findings of these assessments and by challenging the quality of the work rather than the legality, professionals can provide important support to the cause, assess the quality of the work carried out so far and its impacts, and re-evaluate the work that is yet to be carried out.
Alongside this, a profound question needs to be asked about the process of landscape assessment and how it affects design and management of landscapes. If it cannot protect a magnificent urban forest, is it fit for purpose? In the instance of the Dillner case, trees are only seen as contributing to cultural heritage when seen in the context of listed buildings: surely the many lime avenues of Sheffield, as well as the more frequent cherries, crab apples and birches contribute positively to landscape character? By the same token, we need reconsider specifically how we assess trees within urban environments: the Sheffield case has powerfully shown that assessing each street on its own, independent of context or wider changes is not sufficiently methodologically sensitive or robust. If we can agree on this, then there is an opportunity to challenge what we mean by ‘material considerations’ and by consequence, what actions trigger the need for planning permission.
Further, whilst the Dillner case shows that EIA is not triggered under the current legislation and the High Court is not the place to hear this case, it is instructive in other ways. There are a number of instances where Mr Justice Gilbart appears to hint how this programme and the laws that cover it might be challenged: for example, in paragraph 94 of the judgment, Mr Justice Gilbart writes that the Court was “exercising jurisdiction as a court of judicial review. It is not an appellate tribunal with the power to take different views on the merits from the decision making body. It is not for this Court to determine whether a decision to fell or not to fell was wrong on the merits,” (my italics). Has this been followed up, and if not, could the Landscape Institute or Arboricultural Association lobby for the programme’s methodology to questioned in a tribunal? If we can persuade either the LI or the AA – ideally supported by other professional bodies – to follow this up then we should also consider paragraph 158, where Mr Justice Gilbart discusses the definitions of ‘maintenance’ and ‘improvement’- here is an opportunity to reinforce the questions above of cumulative impact and scale of intervention, and refine our understanding of what is best practice in the urban environment.
Lastly, perhaps the most contentious and long-term course of action is to explore the definitions of ‘deforestation’, ‘material considerations,’ and ‘development’ at law: whilst research and practice progress, the law lags behind. In this light, these definitions are a powerful tool not only in preserving our cultural and environmental heritage but also in fighting the effects of climate change in towns and cities.
In setting out these ideas for possible next steps, I am not sure who should or can undertake them: these are big questions that will take a considerable amount of professional time to resolve and finding people to take on a long-term fight like this will be difficult. For what it’s worth, I am keen to offer Rootstock’s support if needed and will be lobbying the Landscape Institute and the University of Sheffield to join in- if more landscape architects and arboriculturists can offer their support to Stag, we might have a chance of shaping the next 5 year tranche of Streets Ahead and saving other towns and cities from similar fates. In the meantime: follow John Cooper QC for updates and solidarity with the 12 residents of Sheffield who will hear their injunctions tomorrow.