Tree preservation order – Encroachment by roots – Damage to neighbour’s property – Appellant local planning authority refusing permission to fell tree – Section 198(6)(b) of Town and Country Planning Act 1990 – Whether respondents entitled to fell tree on ground that necessary for prevention or abatement of nuisance – Whether relevant that other works not involving operation to tree capable of abating nuisance – Appeal allowed
The respondents’ house had been damaged by the encroachment of the roots of an oak tree that grew in their neighbours’ garden. The respondents applied to the appellant local planning authority for permission to fell the tree, which was protected by a tree preservation order (TPO). The application was refused and an appeal to the secretary of state was rejected.
The respondents sought a declaration that they were entitled to fell the tree pursuant to section 198(6)(b) of the Town and Country Planning Act 1990. The section provided that a TPO should not apply to the cutting down, uprooting, topping or lopping of any trees in so far as any of those were necessary for the prevention or abatement of a nuisance. The appellants argued that it was not necessary to fell the tree since underpinning the respondents’ house would equally abate the nuisance while preserving the tree. A preliminary issue was tried as to whether, when determining whether the cutting down, uprooting, topping or lopping of a tree was necessary for the prevention or abatement of a nuisance, it was irrelevant that other possible works could prevent or abate the same nuisance.
In the court below, the judge answered that question in the affirmative. He held that: (i) in order to trigger section 198(6)(b), the “nuisance” in question had to be actionable in law and involve actual or imminent damage rather than mere encroachment; and (ii) if that were the case, section 198(6)(b) provided a simple link between works to the tree and the abatement or prevention of that nuisance, such that it required the determination of the minimum that needed to be done to the tree in order to achieve that result, and it was irrelevant whether other possible means might be available. The appellants appealed.
Held: The appeal was allowed.
The judge’s construction of section 198(6)(b) did not give proper weight to the word “necessary”. Although he had correctly held that the section provided a link between a range of possible works to the tree and the prevention or abatement of a nuisance, that proposition threw no light upon whether the works to the tree could be said to be “necessary” in circumstances where there were other works, not involving operations to the tree, that would achieve that result. It was not possible to determine the minimum that needed to be done to a tree in order to prevent or abate a nuisance without first asking whether anything needed to be done to it at all. Accordingly, the phrase “so far as may be necessary” in section 198(6)(b) should be treated as though it read “if and so far as necessary”, thereby ensuring that a tree should remain protected unless there were a real need to lift that protection.
Per curiam: Although the appellants brought no challenge on the point, it was doubtful whether it was possible or necessary for the purposes of section 198(6)(b) to draw a distinction, as the judge had done below, between “actionable nuisance” and “pure encroachment”.
James Findlay and Ryan Kohli (instructed by Sharpe Pritchard) appeared for the appellants; Graham Eklund QC and Robin Green (instructed by Plexus Law, of Colchester) appeared for the respondents.
Sally Dobson, barrister
