Sheffield apologises for producing document that misled courts during bitter Street Trees dispute

Sheffield City Council has apologised for producing a document that "misled the courts" during the course of its Street Trees dispute, which saw the council defend two judicial review challenges and seek a series of injunctions against protestors.

The city council's statement came in a follow-up response to the publication of Sir Mark Lowcock KCB's Street Trees Inquiry, which found a series of failings at the council. These included a finding that Sheffield's legal leadership focused on what the authority was entitled to do, and "failed to pose questions of what was right or proportionate to do".

Sir Mark's inquiry analysed the council's implementation of its 'Streets Ahead' programme and its contract with infrastructure company Amey to carry out a plan to fell and replace around 17,500 trees across the city. 

The council's contract with Amey required the company to produce a 'Five Year Tree Management Strategy' and submit it to the council annually - the first version of which was created in 2012.

The documents produced by Amey were not released to the public.

However, by the autumn of 2015, pressure was building on the council over its plan. As a result, the council created its own edited version of the Five Year Tree Management Strategy. The council published the document in February 2016, dated January 2016.

"The effect of creating and publishing the January 2016 version of this document, giving this inaccurate impression of policy, was that three groups or institutions were misled: the public, the Independent Tree Panel and the court," the inquiry found.

According to the inquiry, the council added "significant new information" in its version not found in the Amey versions, which included information on environmental stewardship.

There was also a section added by the council which listed engineering solutions that it said would be considered as alternatives to felling street trees.

The council's document was referenced in council debates and even referenced in the High Court.

In February 2016, campaigners launched a judicial review against the council, which saw included the council's version of the Five Year Tree Management Strategy (the only published version at the time) submitted as evidence.

While the council did not submit the document as evidence to the courts, it did refer to it when responding to campaigners' arguments.

Mr Justice Gilbert's ensuing judgment quoted extensively from the document, including from sections that the council added.

A later judgment from 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 extensively from it in his judgement," the inquiry noted.

Freedom of information requests were eventually made for the release of all of the council's copies of the Five Year Tree Management Strategy documents, and in 2018 the council published six of Amey's versions of the strategy to its website, despite initially claiming it had lost all copies.

In response to queries as to why the council's document was different, Sheffield said it prepared its version: "In order to aid public understanding of the documents submitted under the Streets Ahead contract, a simpler, more accessible version of the 2016 Five Year Tree Management Strategy document was produced and published on the Council's website."

The inquiry found that this explanation "does not provide a satisfactory explanation for all of the differences between versions" as it did not explain why the document numbering was inconsistent, the additional list of engineering solutions, nor did it say that the document is a simplified version.

In commenting on misleading the courts, the inquiry said that the events led the courts to be misled on two occasions, but the inquiry did not find evidence that the court was knowingly misled.

"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," the inquiry noted.

"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."

The inquiry found that the council as an entity did know that the position represented in the strategy was misleading.

However, the legal advice given to the inquiry was that even if the court had known that elements of the strategy were false, it would not have led to a different outcome in either set of court proceedings.

It said: "While the document was referred to in each case, each judgement was reached comprehensively, based on aspects of the law that are not touched on by the strategy."

In responding to concerns about perjury, the inquiry reported that while the council as an organisation collectively knew it to be false, it saw no evidence that any of the individuals giving witness statements, in either case, believed the strategy to be false.

"Likewise, we have not seen evidence of recklessness in the case preparation, or evidence that an individual lawyer knew the Strategy was false," the report added.

However, it concluded: "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."

Responding to these findings, the Chief Executive of Sheffield City Council, Kate Josephs, and Leader of Sheffield City Council, Cllr Terry Fox, said: "As is explained in Sir Mark's report, as an organisation, Sheffield City Council produced a document that subsequently mislead the courts, the Independent Tree Panel and the public.

"Whilst the report is clear that no individuals gave evidence they believed to be false or misleading, that does not take away from the fact the document did mislead people. We are sorry and we should have done better as an organisation."

The pair added that Sheffield needs to make personal apologies to a "significant number of people individually and it is only right that we take the time to identify every single person and reach out to them directly".

Adam Carey