Brief guide to legal action to save trees

STRAW Plymouth at the Royal Courts of Justice

 

Ultimately, if engagement with decision-makers has been exhausted and a decision has been made to proceed with tree-works or felling, there may be no alternative other than to consider legal proceedings.

This is a practical guide and not legal advice. While we do our best to share useful advice, it may not be up to date.


Legal proceedings should generally be a last resort, although sometimes events (like felling commencing without any warning) can mean you don’t have time to engage in negotiations with decision-makers beforehand.


You will want to be ready to react as and when needed. Some top tips for doing so:

  • Try and obtain legal advice as early as possible so your lawyers can help with making relevant objections (see our guide to starting a campaign) and are ready to react when a decision is made.
  • Be aware of time limits for challenging a decision. If the decision you want to challenge is one taken by your local authority or another public body, it is likely that the challenge will need to be brought by judicial review. Time limits for judicial review claims are short and strict – often just 6 weeks from the date of the decision (this is one reason why getting legal advice early is important). Making a complaint to the Council and waiting for a response is not a valid reason for missing a court deadline.
  • If a decision to fell or carry out works is due to be implemented imminently, you may need to seek an injunction.

  • Fundraise as soon as possible. Legal proceedings are costly and you often have just a few weeks to start the legal process from the date of the decision. It’s therefore important to fundraise as soon as possible so you are ready to take legal advice and bring proceedings once a decision is made.


    Funding a judicial review case

    When funding judicial review proceedings, you will need to think about:

  • Your own legal costs (solicitors and barrister fees).
  • Other costs (court fees, printing costs).

  • Costs of the other side – the general rule in legal proceedings is that if you lose, you pay the other side’s costs (see below for info on costs protection).
     

    Crowdfunding is a useful way to try to raise the funds required. You don’t need to raise the full amount up front but it is useful to fundraise early so you are able to pay for legal advice as and when it is needed. Crowd Justice is available specifically to help raise money for legal action, but you will need to have instructed a solicitor before starting your campaign. It is also useful if you are yet to find a solicitor because previous cases are listed.


    Lawyers may be willing to enter into a reduced fee arrangement but that is likely to depend on how strong your case is. A full conditional fee arrangement (i.e. “no win no fee”) is usually reserved for cases likely to succeed or with a strong public interest.


    Costs protection

    In environmental cases it is possible to obtain Aarhus costs protection (named after a treaty aimed at promoting access to justice in environmental cases, signed in Aarhus, Denmark). Aarhus costs protection has been recognised as applying in planning cases and may also apply in other environmental judicial reviews. It is less clear whether it applies in other legal claims relating to the environment.
    Aarhus costs protection works by capping the costs the Defendant can claim from the Claimant to £5,000 (if the person bringing the claim is an individual) or £10,000 (if the claim is brought by anyone other than an individual). Conversely, if the Claimant is successful, they can only claim a maximum of £35,000 from the Defendant.


    To claim Aarhus costs protection, you need to tell the other side that is what you intend to do in a pre-action letter. You also need to prepare a witness statement with a schedule of your financial resources (income and expenditure) so the Court and other parties can see whether the cap is appropriate. If you have very large savings or a lot of assets, the other parties may argue that the cap should be increased. The schedule of financial resources is a confidential document so apart from the Court and other parties it should not be made public through the court proceedings. A lawyer can help advise on how to claim Aarhus costs protection and when it applies. Without Aarhus costs protection, costs against can be considerable.

This advice was kindly supplied by Goodenough Ring Solicitors, who specialise in environmental, planning, public, human rights and public international law, advising charities and campaigns.