The fact is, that each time there is a movement to confer rights onto some new “entity,” the proposal is bound to
sound odd, or frightening, or laughable. This is partly because until the rightless thing receives its rights, we cannot
see it as anything but a thing for the use of “us” – those who are holding rights at the time.
Stone, C. (1972) Should trees have standing? – Toward legal rights for natural objects.
Southern California Law Review, 45, pp.450-501
Over 40 years ago a Californian law professor, in an article entitled ‘Should trees have standing?’, raised the issue of how the rights of various elements of the environment (‘natural objects’) could be represented in a court of law. In the US legal system the term ‘standing’ refers to the ability to have one’s complaint heard in a court of law; it requires a plaintiff to demonstrate they are adversely affected by some action (i.e. they will suffer some harm) and thus have an ‘interest’ in a case that deserves to be heard. The paper explored how society should deal with adverse impacts on our ecological systems when the plant and animal communities adversely affected by our actions have no voice to represent their own interests. The issues raised in the article have not been resolved, in fact the problems have become even more significant as global population grows and pressure on resources continues to rise. The question remains – who represents ecological interests, and how are those interests to be heard in legal disputes, or to put it another way – who speaks for the trees?
In our current climate of austerity, when central government is reducing the ability of local authorities to deliver services, the question is growing in importance. In their search to reduce spending local authorities are both shedding services and contracting out service delivery, sometimes in contracts where current and future costs to residents and taxpayers are kept hidden from view. One such example is the recent controversy over maintenance and removal of street trees in Sheffield, a city in the north of England described as ‘one of the most wooded industrial cities in western Europe’.
Sheffield street trees
The controversy over street trees in Sheffield came to a head in November 2016 when residents were reportedly woken before dawn by contractors felling trees outside their homes, and police knocking on doors asking peoples to move their cars. The BBC website reported that three people were arrested, “on suspicion of preventing lawful work”, and spent hours in police cells. The tree felling work was undertaken early in the morning on advice of the police, in order to keep the operation ‘low-key’. According to the news report the work was undertaken to save £50,000 on repair costs. The fact that the operation was undertaken pre-dawn and required residents to be woken up before dawn suggests, at best, a lack of engagement with local residents.
The situation arose because in 2009 Sheffield City Council approved a 25-year Private Finance Initiative (PFI) contract for management of street trees. What is astounding is the secrecy surrounding the contract, a contract for which Sheffield residents are paying, yet one that is not transparent – in fact most of it is redacted. The Sheffield.gov website also indicates that some schedules to the contract are ‘so large they are not available on-line’. Thus, residents have no idea of the commitments made by the council in their name, nor how much they might be paying for the privilege of having their street trees removed, and their local environment degraded. Neither is it clear whether the removal of large and mature street trees and their replacement by smaller species is sanctioned by the contract, or whether such action is due to efforts of the contractor to minimise costs and maximise profits (smaller species and young street trees reduce maintenance costs and save the contractor money).
The controversy over tree management in Sheffield raises a whole series of questions over who controls urban landscapes, and who has the rights to determine the characteristics of the local environment in which people live. It also raises questions over whether elected bodies such as town and city councils should be signing ‘secret’ contracts that restrict alternative actions, sometimes for decades into the future and affecting both current and future generations, as well as the broader questions surrounding the rights of urban trees to continue to exist, rather than be replaced or removed entirely.
Urban trees – just trees, a bundle of problems, or vital to human wellbeing?
Trees in the urban landscape are not just decoration but deliver many benefits. They provide biodiversity, clean air, shade, provide a sense of place, enhance seasonal change, contribute to well-being, potentially improve human health, alter the local micro-climate, and change the character of town and city-scapes. An additional contribution, in residential areas in particular, is that trees enhance property value. Key environmental benefits of trees identified by local authorities include the following:
- Capacity for improving air quality through removing certain pollutants
- Carbon sequestration
- Improve biodiversity through provision of habitat for wildlife, including birds, bats and insects
- Reduce wind speeds where wind tunnels are created by tall buildings, and can improve circulation of stagnant air
- Soften the impact of the urban environment
- Provide relief from sun glare and shade in summer
- Help to mute noise levels by breaking up sound waves
Trees, and in particular large trees, can also cause problems, and for town and city councils they can be viewed as a major headache involving costs, disputes and potential insurance claims. The more negative aspects include tree roots pushing up pavements or roads making the surface uneven, and conflict with provision of underground services (e.g. gas and water mains, sewerage, cables). Large, mature trees may need to be more closely monitored to identify diseased and dying trees, while limbs and sometimes whole trees require removal. Some local residents may actively dislike trees if they shed leaves and sticky substances onto walkways and cars, provide roosts for birds that excrete on parked vehicles, or create excessive shade.
These factors can be heightened when large areas of trees are all reaching maturity and/or there has not been a regular programme of maintenance over the lifetime of the trees. Large urban tree species such as Lime or Plane trees might take 80 – 100 years to reach maturity. Although many urban areas have tree strategies, and take great care of trees in parks and open spaces, there are many cases where, because of cost cutting and a short-term view financial considerations, decisions over street trees are made which result in removal, or replacement of large mature species such as Limes and Plane trees with smaller species such as Cherry, that have lower maintenance costs and shorter lives, creating what has been termed by some as ‘a lollipop landscape’.
In the UK a recent survey estimated that approximately 12% of urban trees are ‘street or highway’ trees but in high density residential areas can provide up to 22% of the total canopy area. Despite the level of maintenance required a survey of urban trees found that the average total annual tree budget for local authorities across England for the financial year 2003/04 was approximately £271,000, including staffing costs, or the equivalent of £1.38 per year per head of population (although the survey also revealed that average expenditure per head of population varied across urban areas from £0.08 to £4.93). The figures were similar to those found in a 1997 survey and more than half of the local authorities surveyed indicated that there had been no change in their total tree budget over the previous five years, taking account of inflation. [Trees in Towns II: A new survey of urban trees in England and their condition and management].
Large urban street trees are part of the urban landscape – a resource enjoyed and shared by those residing in, or visiting, a town or city – a form of shared benefits – provided, in many cases, not by current taxpayers but by previous generations of residents. If we treat urban trees merely as a ‘public good’, however, provided by and maintained by a local authority, then urban residents become no more than one of a set of competing interests lobbying the decision makers to take a specific course of action when conflicts arise. A familiar problem with the governance of public goods arises when ‘intangible’ and possibly long-term benefits (examples include improved health and well-being, a more amenable urban landscape, and biodiversity) are put up against the current economic costs of maintenance and street repairs in a context of reduced funding that cuts across all aspects of local authority service delivery. It is easy to understand how decision makers operating under such conditions might be swayed to reduce costs through tree removal and changing to smaller species that do not cause problems to road surfaces, water mains, or vehicles. In situations where benefits are difficult to measure or value, and are spread across many people whose views are not adequately represented, while costs are immediate and must be met with financial resources, then decision makers will tend to take the easiest route offered. If the governance arrangements enable elected councils to contract management out to the private sector (i.e. the local authority have absolved themselves of any involvement in management of the public good through signing a PFI) there is often even greater pressure to reduce costs on the part of a commercial contractor, and less concern over loss of the ‘intangible’ values that might benefit residents of the urban landscape.
Who owns the trees?
Alternatively, if the urban landscape and its trees are not merely public goods, provided at the whim of elected councillors, but a commons resource, shared by all those who live in the town or city who benefit from, and pay for the resource through their taxes, then we might start to consider alternative forms of governance. Those who access and benefit from a commons resource, (primarily the residents as they are the ones ultimately paying for the provision and care of street trees) should have rights to decide how the resource is to be managed and utilised. If urban trees are a commons resource, then all those in a neighbourhood, or urban area benefitting from trees, all those who have rights to access and ‘use’ the resource, should be involved in decisions about the management of that resource. This potentially opens-up the management of shared resources, such as street trees and urban open spaces, to alternative forms of governance arrangements, one where elected councillors would not need to engage in what are perceived to be secret deals made behind closed doors.
Who owns the street trees in an urban area is an interesting question, and deciding who has the rights to make decisions over commons resources is at the heart of the battle currently raging in Sheffield. A discussion paper produced by Cambridge City Council describes four main types of ownership of urban trees: city council, street trees, institutional, and private. In the paper the City Council is identified as the main ‘owner of trees’, stating that “We own trees on public land such as parks and play areas, and also in local nature reserves, cemeteries, allotments, housing estate lands and Council premises themselves.” Street trees, however, “…are owned by Cambridgeshire County Council, but the City Council manages these trees on behalf of the County, and is required to provide maintenance and other services.”
Legally then, urban trees may be the property of the city (or town), and street trees the property of the county. But this can give the dangerous perception that if it is the City council that owns the trees then elected councillors would have the rights to manage the resource as a form of ‘property’, and do with it what they wanted, with no need to seek input from residents. In the case of street trees the situation is more complex if the county owns the trees but puts obligations on the city council to manage them, which then signs over management to a private contractor using a PFI. But if we consider street trees as a resource ‘owned’ in common (i.e. all residents of the urban area have a right to access and share the benefits) then all residents potentially have a right to be involved in the decision making over how the resource is managed.
Until recently one might have said it is the City Council who manages and takes decisions on the management of urban trees, on behalf of all ‘commoners’ (i.e. those with rights of access to the resource – the residents). But in situations where a city council has signed over the management rights to a private entity, that operates under a secret 25-year PFI contract, it would appear that the rights of commoners have been taken. The rights of the ‘commoners’ (i.e. the residents) to access and enjoy the benefits of their own street trees, and to have a say in how that resource is managed and used, have been removed. One more example of ‘enclosure’ of commons resources, only this time the rights have been given away by the very people elected to represent the interests of commoners. The issue is not just about ‘who owns the trees?’ but also one of deciding ‘who has the rights to determine what should happen to the trees within the urban space in which they live?’. It is not just the local residents who suffer when large mature trees are removed, all those dwelling in an urban landscape may be affected, from loss of the environmental and health benefits that trees deliver, to a reduction in well-being brought about when people have no role in the governance of the place in which they live.
It creates a conundrum. In general people like the benefits urban trees confer – and they want the local authority to provide those benefits as we like to believe they are public goods from which everyone benefits – pleasant landscape, cleaner air, an improved sense of well-being. But local authorities are pulling back from delivery of all kinds of public goods and services, not just trees. In practice town and city councils have traditionally looked after the urban landscape on behalf of residents. The tendency now is to hand over the rights to manage such resources to private companies, who manage the trees under long-term contracts, for a fee, paid by taxpayers. Legally it may be town and city governments that own the trees, but ultimately it is the residents of the town or city who pay the taxes used to purchase trees that ‘own’ the resource, and have the rights to access and enjoy the benefits for which they have paid.
Street trees as a commons resource
The nature of a commons resource means that no single person or household owns the trees, or can claim rights to a specific tree, it is a form of communal ownership in which the community of residents have the rights to benefit from the resource. What Sheffield City Council has done in its (apparently secret) deals, is to hand those community rights to a third party, effectively a transfer of wealth (in the form of the benefits conferred on the townspeople by the trees) from the residents to a (profit-seeking) private organisation. If that ‘wealth’ is reduced through removal of trees, or replacement with smaller species that do not produce the same level of benefits as large mature species then the residents are worse off, which explains the protests, and possibly also the apparent secrecy with which such a contract was drawn up.
Benefits, costs and headaches – not just trees
Street trees are not just trees – to the company charged with management of trees and urban streets driven by the need to make a profit – large mature trees are often viewed as a cost: expensive to maintain, expensive to manage (e.g. pruning, removing dead limbs), and damaging to roads and pavements through root systems which create uneven surfaces and get into water and drainage pipes. Minimising overall costs to maximise profit drives decisions. Trees that cost less to maintain will be preferred to trees that cost more. From the private contractor perspective ‘urban street trees = £cost’.
To the town council and local authority officers, trees can bring a wide range of benefits – a pleasant urban landscape, attracting residents and visitors, cleaner air and higher property values. But street trees can also create headaches, they can bring conflict between neighbours and between different land users, along with a host of potential problems from cracked and partially blocked pavements, to complaints about bird droppings, shade, and leaves clogging up drains, all of which take time, money, and effort to address. From the local authority perspective ‘urban street trees = benefits – (problems x £cost)’.
To the residents – trees can be highly valued for the way they alter the local character of place, for bringing nature into the city, for the colour they add to the urban space, and for just making a place more pleasant to live in by ‘softening the hard urban landscape’. When people move into an area with street trees they effectively accept both the advantages and disadvantages – in the vast majority of cases the trees were there first. Not all residents have the same view of trees but it is interesting to note that in the case of Sheffield very few complaints about trees had been received before the tree removal operations started. From the perspective of residents ‘urban street trees = benefits from improved environment & well-being’.
A benefit-cost exercise might help clarify the value for money delivered by urban trees through weighing up the value of the benefits vs. the costs over a specific period of time (typically 25 – 30 years). Such calculations are not easy as many of the benefits are difficult to value, and going beyond 30 years (which is quite short considering that the lifetime of some of the tree species may be well over 100 years), creates greater uncertainty in long-term values of both the costs and benefits. More discursive forms of resource valuation might be more useful, enabling those with different interests to sit down and explore both the advantages and disadvantages of street trees, to improve understanding and provide a measured appraisal capable of supporting management decisions.
Who speaks for the trees?
Urban trees come with responsibilities and costs. Monitoring and maintenance is required; trees, especially large trees, need to be checked regularly for disease, they need to be pruned of dead and dying limbs. Perhaps it is time, as commoners who benefit from a ‘treed landscape’, that residents took more responsibility and a stronger role in the governance of ‘their’ resource. Many other forms of commons resource (e.g. pasture, forest, fisheries) in different parts of the world, are managed through associations or councils established with a role in the governance of the resource and its uses. Perhaps it is time we explored the feasibility of developing local commons associations that determine how urban resources such as street trees should be managed; organisations capable of making representations to the elected local councils for funding and resolution of local conflicts.
‘Who has the right to access and use the commons resource?’ is a key question, and one that should also determine who has rights to take part in decision making over urban trees. The answer to the question – ‘who has the right to speak for the trees?’ – perhaps lies only with those prepared to take on some of the management obligations and responsibilities that accompany the benefits from a commons resource.
If urban street trees are a form of commons resource then those with rights in the common – the rights to access and use the resources – have the right to be heard. How this might be accomplished will not be easy, but this is where we need to focus our attention as it will require new forms of governance that enable local input to decisions, clarity over the benefits and costs of urban trees, and raised awareness that rights of common are accompanied by ‘costs’ in the form of responsibilities to maintain the quality of the shared resource. Rights in a commons resources are not free, they come with obligations and responsibilities: obligations to look after the resource and ensure it is fit for future generations; and responsibilities to other commoners that ensure good management.
The suggestion made here may not fully address the questions posed 40 years ago by Chris Stone regarding how we give rights to trees and other parts of the ecosystem, but it might help to avoid situations where an elected body hands over control of a commons resource (such as urban trees) to a private company. The trees may continue to be silent, but it is important that those holding the access and use rights in urban trees – the urban ‘commoners’ – should have a voice in the management of ‘their’ resource. It would appear, that in an age of austerity, there is no-one else who will speak for the trees…