Er sorry head fuzzy. Basically: The appeal by Northampton was upheld on the
grounds that other works could have been done? or am I miss reading it?
Nick Burke
Planning Officer - Arboriculture
Environmental Planning,
Development Services
Sheffield City Council,
Howden House
1 Union Street,
Sheffield,
S1 2SH
T: 0114 2734198
F: 0114 2735002
nick.burke2@xxxxxxxxxx.gov.uk
-----Original Message-----
From: Steven Clark [mailto:Steven.Clark@xxxxxxxxxxxx.gsi.gov.uk]
Sent: 20 December 2007 11:44
To: UK Tree Care
Subject: Perrin Appeal
See below for an important judgement from the Court of Appeal:
----------------------------------------------------------------------
[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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