Perrin & Anor v Northampton Borough Council & Ors

Under section 198(6)(b) of the Town and Country Planning Act 1990, the exemption from a tree preservation order applies only if and so far as operations on the protected tree are necessary to prevent or abate a nuisance. It is insufficient that tree works would be an effective solution. The court must consider whether anything needs to be done to the tree, having regard to other available means and relevant practical circumstances. If tree works are necessary, they must go no further than the minimum required. The statutory test is necessity, not reasonable necessity, but that does not exclude consideration of all relevant circumstances.

The claimants owned a house allegedly damaged by root encroachment from an oak tree on neighbouring land. The tree was protected by a tree preservation order. The local planning authority refused consent to fell it, and the Secretary of State dismissed the resulting appeals, noting an alternative engineering solution.

In proceedings against the authority and the neighbouring owners, the Technology and Construction Court decided a preliminary issue in favour of the claimants: when determining whether tree operations were necessary under section 198(6)(b) of the Town and Country Planning Act 1990, alternative works such as underpinning were irrelevant: [2006] EWHC 2331 (TCC). The authority appealed. The central issue was whether the statutory concept of necessity was confined to the extent of work done to the tree.

1. Appeal allowed. The order of the Technology and Construction Court dated 26 September 2006, answering the preliminary issue affirmatively, was set aside.
2. Section 198(6)(b) of the Town and Country Planning Act 1990 disapplies a tree preservation order only if, and so far as, cutting down, uprooting, topping or lopping the protected tree is necessary for preventing or abating a nuisance. The words require a real need to lift the statutory protection. They do not make tree works exempt merely because those works would be sufficient to solve the problem.
3. The judge below was right that the statutory test is “necessary”, rather than “reasonably necessary”. But that stricter test still requires regard to all relevant circumstances. The existence of alternative works, including underpinning, root barriers or other measures not affecting the tree, is therefore relevant to deciding whether any operation on the tree is necessary. The omission of such works from the statutory wording does not make them irrelevant.
4. If tree works are necessary, they must be limited to the minimum required to prevent or abate the nuisance. The extent of the nuisance is relevant to that question. The court did not need to decide whether the nuisance must be actionable rather than mere encroachment.
5. The court indicated that costs and the ability of the person responsible to fund competing solutions may be relevant, although they will rarely be determinative. The importance of the tree as a local amenity might also be relevant when choosing between possible solutions. A protected tree causing damage only to its owner’s property does not engage the nuisance exemption. The court declined to decide whether the separate “dangerous tree” exemption in section 198(6)(a) applied.
6. The preliminary issue was an unhelpful shortcut. It was unlikely to avoid a factual trial concerning causation and whether any tree operation, and if so what operation short of felling, was necessary.

• Court of Appeal (Civil Division) [2007] EWCA Civ 1353: allowed Northampton Borough Council’s appeal and set aside the preliminary-issue order.
• Technology and Construction Court [2006] EWHC 2331 (TCC): held that the possibility of alternative engineering works was irrelevant under section 198(6)(b) of the Town and Country Planning Act 1990.