Sheffield Council misled public and courts over efforts to chop down half of city's street trees, inquiry finds
Sir Mark Lowcock, who chaired an inquiry into the controversy focused on a “truth and reconciliation” process, today released his 227-page report and made a webcast public statement setting out his findings.
Thousands of street trees were felled and replaced with saplings as part of a £2bn highways management contract with Amey which originally began in 2012.
The inquiry findings vindicate the argument made by campaigners that many of the fellings had involved healthy trees and had been unnecessary despite the council repeatedly claiming at the time removals were only done as a “last resort”.
Sir Mark said that in 2007 as the city was looking for ways to improve the poor state of its road and highways network, the council commissioned an external report which stated 74 per cent of its 35,000 street trees would be classed as “mature” or “over-mature” by March 2008.
He said the council then produced an outline business case which wrongly misinterpreted those findings as meaning those trees were “ready for replacement”.
Sir Mark said: “The inquiry did not find evidence that in saying what they did the council was malign or intending to mislead. The assertion was more likely a result of misinterpretation arising from the fact that the people making the key judgments on design issues were highway engineers, not tree specialists. They failed adequately to consult others with wider expertise.”
He said the result was that in November 2009 the council decided to invite bidders to develop plans to remove and replace 17,500 street trees over the course of the programme. Despite contractual details emerging during the dispute, the council repeatedly denied the figure was a target.
But Sir Mark said: “The intention to remove or replace 17,500 street trees was embedded in the contract the council signed with Amey in 2012.
“It was implicit in this approach that while some of the trees to be removed would be dead, diseased, dying or dangerous, a substantial number would be healthy, with potentially many years still to live.”
The inquiry report states: “The council, for years, strenuously denied that the intent was ever to replace 17,500 trees or that there was a target to do that. The Inquiry did not find the evidence it was given in support of that argument persuasive. It is, in the Inquiry’s view, best understood as an ex-post rationalisation. The point is, at present, moot; but the Inquiry believes that, had there been no campaign to oppose what the Council was doing, the programme would now be on track to replace 17,500 trees.”
The contract was frontloaded with more than one-third of the fellings intended to be completed within the first five years of the contract. Sir Mark said the council had viewed the situation as “an opportunity to renew the city's street tree stock and leave it in a good state for the next generation”. But he said neither the council or Amey had expected any opposition due to “inadequate” risk assessments.
“Obvious facts that for example people saw a world of difference between a newly planted tree and a large mature one were overlooked. A failure to ask the right questions of the right people account for that. A consequence of failing to identify the risk was that nothing was done to mitigate it. The plan for the Streets Ahead program was in that sense flawed from the moment the contract was signed.”
He said the council was “slow to understand” the opposition to its plans and dismissed concerns as “unrepresentative”.
“They ignored those who said the dispute needed a political solution. They did not get adequate advice from senior officers on that, partly because the political direction and mood within the council was increasingly to prevail in the dispute not to find a compromise. Between 2016 and early 2018, the council's attitude hardened as it sought to deter the efforts of campaigners and protesters to block the tree replacement programme.
“Some of the things the council did were, in the view of the inquiry, unacceptable. Some of the ideas it flirted with but did not pursue were worse.
“From early 2017 onwards, Amey had increasing misgivings about the council's approach, but under threat of significant financial penalties, it acquiesced in and provided support for efforts to deter campaigners from hindering the programme.”
Sir Mark added: “The inquiry’s assessment is that what the campaigners saw as the council's irrational, unreasonable, deceitful, dishonest, bullying and intimidating behaviour is what generated the determination, persistence, creativity and ingenuity that the campaigners has displayed. The council’s behaviour in other words, was the fuel that drove the protests.”
Sir Mark said that initially developing and adopting a flawed plan “was a failure of strategic leadership” with responsibility resting primarily with senior council officers and senior political leaders in post between 2008 and 2012 - during which time both the Lib Dems and Labour held power.
He said Amey also bear partial responsibility after advising against a cost-saving proposal from the council to reduce the tree replacement programme by half to 8,750.
“Amey’s advice, which the council accepted, was substantially based on the rationale, that a larger and front-loaded programme would better facilitate the upgrading and maintenance of the built highways infrastructure.”
Sir Mark said that in 2015 in response to growing public concern, the council established what it called an “Independent Tree Panel” which was supposed to show the council was acting reasonably.
But he added: “The Independent Tree Panel was misled over what could be done at Amey’s cost under the contract, as were the public and later the courts.
“The inquiry did not find perjury or criminality but misleading the courts is a serious matter.
“From 2016, the council rejected many of the recommendations the independent tree panel made in good faith to save trees. Setting up an independent panel misleading it and then ignoring substantial numbers of its recommendations was destructive of public trust and confidence.”
In a joint statement following the publication of the inquiry report, Chief Executive of Sheffield City Council Kate Josephs and Leader of Sheffield City Council Terry Fox said: "This morning, Sir Mark Lowcock, Chair of the Independent Inquiry into the Street Tree Dispute, published his report. We welcome the publication of the report and thank Sir Mark and his team for their efforts and diligence in producing a detailed, comprehensive report that will support truth and reconciliation and the continued healing of the city after this difficult and damaging period in our city’s recent past.
As per the terms of reference, Sheffield City Council received a copy of the report at the same time as it was issued to the public. We will now take some time to read and digest the findings of the report and will respond to the findings and recommendations made in due course.
The council has already acknowledged that it got many things wrong in the handling of the street trees dispute, and we wish to reiterate our previous apologies for our failings. We have taken huge steps already to ensure past mistakes are not repeated and we hope the release of this report will further help us to learn lessons as we move forward from the dispute.
We are committed to doing better in the future, to ensure that we are an open, honest and collaborative organisation, as we continue our work with our partners and with the people and communities of Sheffield to create the successful, thriving and inclusive city that we all aspire to.
The inquiry report states that the courts were “misled on two occasions” in regard to its published ‘five year tree management strategy’ document.
Amey had created an internal version of the strategy in 2012 and in January 2016 the council published a public version with new additions - including a series of 25 alternative options that would be considered before a tree was removed.
The report said Amey “expressed reservations” about it being released as their document when the council had amended it and asked that six of the options be removed from the list, as they were either not suitable or not allowable in the contract, or more broadly in the UK highways sector.
But rather than removing them, the document was rebranded as a Streets Ahead rather than Amey-produced product.
A judicial review of the felling programme was launched by campaigners in February 2016, with the judge in the case ultimately ruling against the legal action and citing the strategy as an “important document”.
The inquiry report states: “It is clear from the judgement that Mr Justice Gilbart understood the Council’s January 2016 version put to him in the campaigners’ evidence to be an accurate representation of Council policy.”
The Independent Tree Panel (ITP) also used the document in making their recommendations.
“They had made a significant number of recommendations based on the incorrect position they had understood from the Council’s January 2016 version of the Five Year Tree Management Strategy,” the report states.
“Combined with the comments from Amey before publication (in January 2016), the Inquiry considers that at least some Council officers were aware that the list of engineering solutions in the January 2016 version of the document was inaccurate.”
The report reveals that in later 2016, Amey told the ITP that the listed 25 alternative solutions were “not an accurate representation of their contract” - stating only two would be used regularly and many were either only short-term options or entirely unsuitable.
As the dispute continued, the council successfully sought an injunction against protesters in mid-2017 which referred to the judgement given in the 2016 judicial review.
The report said: “Based on the evidence provided to him, the judge (this time Mr Justice Males) again understood the Council’s January 2016 version of the strategy to be an accurate representation of the council’s policy and also quoted from it extensively in his judgement.”
The inquiry said the council had misled the ITP, the public and the courts.
In relation to the latter, the inquiry ruled that the council’s actions fit the category of “passively allowing the court to rely on something that is known to be false and not correcting the record”.
The report said: “While the council did not bring the strategy to the court as evidence themselves, they did not correct the record where it was given a false impression. In the judicial review proceedings, they did not clearly explain the nature of the document or the relationship between different versions. In the injunction hearings, they brought evidence relating to engineering solutions and relied on the judgement from the judicial review, without correcting the view taken on the Strategy in the judicial review.
“This also happened despite the Council as an organisation knowing that the position represented in the strategy was misleading. It is an important legal principle that the corporate knowledge of an organisation extends to the total knowledge held by each individual employee. If an employee knows something, then their employer does, too. When multiple employees each know part of the position, the employer is deemed to have their collective knowledge and to understand the whole position. The Council (as an entity, represented in both cases) knew that the strategy was misleading.”
However, the inquiry report added that legal advice has suggested the omissions did not affect the outcomes of either court case.
It added: “Perjury is committed by an individual who knowingly presents false evidence. Witnesses are only required to give the evidence that they believe to be true. While the Council as an organisation collectively knew it to be false, the Inquiry has seen no evidence that suggests that any of the individuals giving witness statements in either case believed the Strategy to be false.
“The fact that this cannot be attributed to an individual should not take away from the gravity of the court being misled by a document produced by the Council.”
The inquiry said the actions of the council were “unacceptable for a public body and it had a significant detrimental impact on the dispute”.
Sir Mark said of the council’s wider approach to the dispute was “hardened” during the 2016 judicial review process and after winning “felt validated and endorsed”.
He said: “Increasingly its mindset was to defeat those opposing the tree replacement programme.”
Instead, the situation deteriorated to the point where dozens of police officers and private security guards were being sent out to support felling activities in early 2018 - with the dispute attracting international condemnation and ultimately leading to the suspension of felling.
Sir Mark said: “It is the inquiry’s view that the council stretched the proportionate use of its authority beyond reasonable limits.
“Our conclusion is the council’s behaviour amounted to a serious and sustained failure of strategic leadership. Responsibility for that ultimately rests with the political leadership, in particular the relevant cabinet member and the council leader.
“They were responsible for setting the direction and tone.
“The inquiry did not find evidence of officers acting in ways that were contrary to political direction. However, political decision makers were not well enough supported by senior officers.
“The council exacerbated its problems by the approach it took to explaining to the public what he was doing. It lacked transparency, and repeatedly said things that were economical with the truth, misleading and in some cases were ultimately exposed as dishonest.
“On occasion that was inadvertent but the council long persisted in putting out messages that it knew conveyed a false impression. That further eroded public trust and confidence in ways that went beyond the narrow issue of the street tree dispute.”
Sir Mark said during his webcast that then council leader Julie Dore had spoken with him but had opted not to give evidence to the public hearings “for reasons which I understand and respect”.