The land owners had sought permission to fell an oak tree subject to a tree preservation order in order to prevent further damage from its roots.
Held: The council’s appeal succeeded. The court was asked to decide whether any works to the tree could be said to be necessary if there were other possible works (not involving operations to the tree itself) which would suffice to prevent or abate the nuisance. The test under section 198(6)(b) of the 1990 Act was ‘necessary’, not ‘reasonably necessary’. But the fact that it is the stricter test of necessity (rather than the looser test of reasonable necessity) that must be applied does not lead to the conclusion that, in applying the stricter test, regard is not to be had to all the circumstances. A protected tree should remain protected unless there was a real need to lift that protection. Effect is given to that intention by reading the expression ‘so far as may be necessary for the prevention or abatement of a nuisance’ as ‘if and so far as may be necessary for the prevention or abatement of a nuisance’.
Chadwick LJ said: ‘Commonsense suggests that the task in such cases should be to identify and evaluate the various possible means of abating or preventing the nuisance – whether by doing something to the tree itself or by other works – and then to ask, in the light of that evaluation, whether it is, indeed, necessary to do something to the tree, and (if so) what.’ and ‘The better view, as it seems to me, is that Parliament intended that Section 198(6)(b) should be interpreted in a manner which gave proper weight to the word ‘necessary’. It is intended that a protected tree should remain protected unless there was a real need to lift that protection. Effect is given to that intention by reading the expression ‘so far as may be necessary for the prevention or abatement of a nuisance’ as ‘if and so far as may be necessary for the prevention or abatement of a nuisance’.
Wall LJ, Blackburne LJ, Sir John Chadwick
Times 21-Jan-2008,  EWCA Civ 1353,  Env LR 17,  2 EG 146,  BLR 137,  1 P and CR 25,  1 WLR 1307,  1 EGLR 93,  JPL 809,  4 All ER 673,  NPC 139,  10 EG 168,  BLGR 379
Town and Country Planning Act 1990 198(6)(b), Town and Country Planning Act 1971 60
England and Wales
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Updated: 05 February 2021; Ref: scu.262940