R. (on the application of McClellan) v Lambeth LBC

摘要

The claimant (M), a local resident, applied for judicial review of the defendant local authority's decision to fell a tree in a conservation area. The tree, which was 70-80 years old, was located near a grade Ⅱ listed building. The local authority commissioned a report from an arboriculturalist and another from a surveyor. They found that the tree had had no adverse effect on the building, but cracks had appeared in a nearby boundary wall. A local authority officer decided that, on the reports' recommendation, the tree should be removed in order to protect the building. M objected and provided an independent expert report which concluded that there was a low risk of damage from the tree's roots or of subsidence. Nevertheless, the local authority's cabinet confirmed the officer's decision. M argued that the local authority: (1) was subject to the duty under the Planning (Listed Buildings and Conservation Areas) Act 1990 s.72, but had failed to give special attention, as required by s.72(1), to whether the preservation of the tree would be desirable in the interests of preserving or enhancing the character or appearance of the conservation area; and (2) had failed to take into account a material consideration, namely that the tree was in a conservation area.