Perrin case overturned

Perrin case overturned

posted by Chris Hastie on Dec 20 2007 13:20

Perrin & Anor v. Northampton Borough Council was concerned with whether a protected tree on neighbouring land causing subsidence damage to a house could be felled despite its protection by a Tree Preservation Order (TPO). Section 198(6)(b) of the Town and Country Planning Act 1990 states that a TPO shall not apply to prevent "the cutting down, uprooting, topping or lopping of any trees …so far as may be necessary for the prevention or abatement of a nuisance".

The original judgement in Perrin & Anor v. Northampton Borough Council, passed down in September 2006, held that in determining what work was necessary to prevent or abate a nuisance account could not be taken of any means of preventing the problem which was not tree work. Specifically, the possibility of carrying out engineering works to the house to prevent further damage could not be used to argue that felling was unnecessary.

For those reasons I would hold that the judge's reasoning in paragraph [53] of his judgment is flawed

Appeal judgement

In an appeal decision handed down on 19 December 2007, the Court of Appeal have said that the original judgement was in error. In deciding what is necessary to abate a nuisance all the circumstances of a case must be taken in to account. This may include consideration of engineering works.

The appeal decision closes what many had seen as a very significant loophole in tree protection legislation, potentially allowing insurers to require the removal of many fine trees because this is a cheaper option to them than repairing the building.

The full appeal judgement is avaliable from http://www.bailii.org/ew/cases/EWCA/Civ/2007/1353.html