UKTC Archive

Perrin Appeal

Subject: Perrin Appeal
From: Steven Clark
Date: Dec 20 2007 11:47:24
See below for an important judgement from the Court of Appeal:

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[2007] EWCA Civ 1353
PERRIN & ANOR v NORTHAMPTON BOROUGH COUNCIL (2007)

CA (Civ Div) (Wall LJ, Blackburne J, Sir John Chadwick) 19/12/2007

PLANNING - LOCAL GOVERNMENT - NUISANCE

DAMAGE TO PROPERTY : TREE PRESERVATION ORDERS : NUISANCE : FELLING TREE TO 
ABATE NUISANCE : CARRYING OUT ALTERNATIVE WORKS : MEANING OF "NECESSARY" IN 
S.198(6)(B) TOWN AND COUNTRY PLANNING ACT 1990 : OAK TREES: ROOTS : ABATEMENT 
: NEIGHBOURING LAND : CUTTING DOWN : UPROOTING : TOPPING : LOPPING : 
UNDERPINNING : s.198(6)(b) TOWN AND COUNTRY PLANNING ACT 1990

In determining whether, for the purposes of the Town and Country Planning Act 
1990 s.198(6)(b), the cutting down, uprooting, topping or lopping of a tree, 
which was the subject of a tree preservation order, might be necessary for 
the prevention or abatement of a nuisance, it was permissible to take into 
account the fact that there might be other ways that could prevent or abate 
the same nuisance.

The appellant local authority appealed against a decision that, for the 
purposes of the  Town and Country Planning Act 1990 s.198(6)(b), in 
determining whether cutting down, uprooting, topping or lopping of a tree 
might be necessary for the prevention or abatement of a nuisance, it was 
irrelevant that there were other possible works that could prevent or abate 
the same nuisance. 

The respondents (P) were owners of a property. Within the area of land 
surrounding an adjoining property was a large oak tree that had encroached 
upon P's land. The tree was protected by a tree preservation order. On the 
basis that the roots of the oak tree had caused damage to their property, P 
had sought from the local authority permission to fell the tree but their 
application was refused. P later sought a declaration that they were entitled 
to fell the tree because that was "necessary for the prevention or abatement 
of a nuisance" within s.198(6)(b). The local authority maintained that it was 
not necessary to fell the tree because other methods, such as the 
underpinning of P's house or construction of a root barrier, would be capable 
of achieving the prevention or abatement of the nuisance that may exist. 

The judge held that the word "necessary" in s.198(6)(b) provided a link 
between a range of possible works to the tree itself and the prevention or 
abatement of a nuisance and that the word referred to the extent of the 
cutting down, uprooting, topping or lopping required, and nothing more. The 
judge held that the existence of alternative engineering solutions was, 
therefore, irrelevant.

HELD: The underlying purpose of the legislation was to preserve trees that 
were the subject of tree preservation orders. It would seem counterintuitive 
to that purpose, when considering what was the minimum necessary that needed 
to be done in order to prevent or abate a nuisance caused by a tree, to 
ignore altogether steps that might be taken other than to the tree itself 
and, instead, focus simply on works to the tree, albeit that the works to the 
tree were to be the minimum necessary. 

The legislation did not, either expressly or by necessary implication, 
require such a restrictive approach to the operation of s.198(6)(b). The 
expression "so far as may be necessary for the prevention or abatement of a 
nuisance" meant "if and so far as may be necessary for the prevention or 
abatement of a nuisance". The statutory test required that whatever was done 
to the tree itself was necessary: it was not enough that whatever was done 
was sufficient. 

The judge had been correct to hold that the word "necessary" in s.198(6)(b) 
provided a link between a range of possible works to the tree itself and the 
prevention or abatement of a nuisance, and that the test was "necessary" and 
not "reasonably necessary". But the fact that it was the stricter test of 
necessity, rather than the looser test of reasonable necessity, that had to 
be applied did not lead to the conclusion that, in applying the stricter 
test, regard was not to be had to all the circumstances.
 
Accordingly, the judge had been wrong to find that s.198(6)(b) was concerned 
only with allowing such cutting down or lopping works as may be necessary to 
prevent or abate an actionable nuisance. The judge's construction to the 
effect that it was enough that something done to the tree would prevent or 
abate the nuisance failed to give proper weight to the word "necessary". In 
the circumstances, his reasoning was flawed and it did not support the 
conclusion that the existence of alternative engineering solutions was 
irrelevant to the determination of the question whether the cutting down, 
uprooting, topping or lopping of a tree was necessary for the prevention or 
abatement of a nuisance.

Appeal allowed.


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