New duty to consult before felling street trees in City of Westminster

Westminster Council will be obliged to carry out a public consultation before felling street trees, to comply with new rules set out by the government.

The duty to consult has been brought in to ensure local people can have a say over the management of street trees in their neighbourhood, and improve the transparency of the decision-making process.

However, not all proposals to fell a tree will be subject to a public consultation and a number of exemptions will apply.

The decision-making process is set out in a report published this month for Westminster’s cabinet member for city management and air quality, Paul Dimoldenberg.

The new rules come from the Environment Act 2021, which aims to involve the public in decisions about street trees and was conceived in response to events in Sheffield, where large numbers of mature street trees were removed, resulting in considerable public concern, a public inquiry, and an eventual apology from the local council.

Legislation from the act implemented by the Department for Environment, Food and Rural Affairs (Defra), states that a public consultation must be conducted before felling non-exempt street trees.

Notices must be posted on trees and digital media, and the consultation period should last at least 28 days. A response to the consultation and the reasons for the decision must then also be published, and at least another 28 days must elapse before the tree is felled. The notice must also remain on the tree until it is felled.

The duty applies to urban roads maintained by local highway authorities but excludes highways maintained by other bodies like Highways England.

In Westminster, it is likely that duty to consult will largely be confined to removal of street trees that are alleged to be the cause of subsidence damage to property, part of place shaping schemes or public realm improvements, and where they are causing an obstruction to the free movement of people protected by the Equality Act but where there may be “appropriate and proportionate engineering solutions which would allow the retention of trees”, states the report.

Some street trees could be exempt from the consultation process, such as dead trees or those required to be felled for safety reasons. In these cases evidence must be provided to prove why a street tree is exempt from consultation.

The report warns that any decision “to exempt trees in relation to the Equalities Act may be subject to legal challenge, because they involve matters of judgement on reasonableness and proportionality”.

Decisions to exempt could also be challenged if the council deems a tree to be dangerous.

Government advice is that the local highway authority “must ensure that it has sufficient evidence to prove that a street tree is exempt from the duty to consult, but in practice this is likely to be more difficult than it appears”, states the report.

In Westminster, only a small number of street trees are removed each year. Between 2020 and 2023 an average of 63 trees per year were removed and fewer than 10 trees in a healthy condition were removed each year. 

Westminster City Council, decision: New duty to consult on the removal of street trees. Highways Buildouts for Trees; Trees and high hedges.