Tree preservation — Encroachment by tree roots — Prevention or abatement of nuisance — Claimants seeking to fell tree causing damage to neighbours’ house — Tree protected by preservation order (TPO) First defendant authority refusing application — Claimants seeking to invoke statutory exemption — Whether possibility of other remedial works irrelevant — Preliminary issue answered in affirmative
The claimants owned a house that had been damaged by the encroachment of the roots of an oak tree that grew in the garden of their neighbours, the second and third defendants. The tree was protected by a tree preservation order (TPO), and the claimants applied to the first defendant local authority for permission to fell it. Their application was refused and an appeal to the Secretary of State was rejected.
The claimants 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. This 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 first defendants argued that felling the tree was unnecessary since engineering works, such as underpinning the claimants’ house, could be carried out instead, thereby solving the problem and preserving the tree. The exemption under section 198(6)(b) did not therefore apply.
The court was asked to determine, as a preliminary issue, whether, as a matter of construction of section 198(6)(b), the fact that other remedial works could be carried out was irrelevant to the claimants’ alleged entitlement to fell the tree.
The claimants argued that “nuisance” in section 198(6)(b) meant any nuisance at common law, including the simple encroachment of tree roots. The first defendants maintained that the inclusion of the word “necessary” required a number of factors to be considered, including the possibility of abatement by the implementation of alternative schemes, such as underpinning.
Held: The preliminary issue was answered in the affirmative.
The principal purpose of section 198 of the 1990 Act was to preserve trees through the use of TPOs. The exemptions in section 198(6) had to be carefully construed so as to ensure that that purpose was not frustrated by interpreting the exemptions too widely.
The reference to nuisance in section 198(6)(b) meant “actionable nuisance”, where damage had been caused or, if no action were taken to prevent it, would imminently be caused. The provision did not enshrine the common law position since the works permitted under it were much wider and it would be contrary to the principal purpose of the 1990 Act if TPOs did not apply in cases of overhanging branches or encroaching roots. Something significant and relatively rare would be required for the TPO not to apply, balancing the primary purpose of tree protection with the right of an individual to live in a safe and unthreatened home: Edgeborough Building Co Ltd v Woking Urban District Council (1966) 198 EG 581, Smith v Oliver [1989] 2 PLR 1 and Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55; [2001] 3 WLR 1007 considered.
The word “necessary” referred to nothing more than the extent of the work to the tree that would be required to abate or prevent the nuisance. That was a question of fact, to be decided on the everyday sensible approach of a prudent citizen looking at the tree in question and deciding in his own mind whether he could properly say that lopping or felling the tree was necessary to abate or prevent the nuisance: Smith applied.
The fact that alternative engineering solutions might be available to abate or prevent the nuisance was irrelevant to the proper operation of section 198(6)(b). The section provided a simple link between works to the tree and the prevention or abatement of a nuisance, with no reference to the need for a consideration of alternative ways in which the nuisance might otherwise be prevented or abated. Moreover, it would make a nonsense of the exemption if lopping or felling could always be avoided by alternative schemes.
Robin Green (instructed by Gaston Whybrew, of Colchester) appeared for the claimants; James Findlay (instructed by Sharpe Pritchard) appeared for the first defendants; the second and third defendants did not appear and were not represented.
Eileen O’Grady, barrister
