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’.
Judges:
Wall LJ, Blackburne LJ, Sir John Chadwick
Citations:
Times 21-Jan-2008, [2007] EWCA Civ 1353, [2008] Env LR 17, [2008] 2 EG 146, [2008] BLR 137, [2008] 1 P and CR 25, [2008] 1 WLR 1307, [2008] 1 EGLR 93, [2008] JPL 809, [2008] 4 All ER 673, [2007] NPC 139, [2008] 10 EG 168, [2008] BLGR 379
Links:
Statutes:
Town and Country Planning Act 1990 198(6)(b), Town and Country Planning Act 1971 60
Jurisdiction:
England and Wales
Citing:
Appeal from – Perrin and Another v Northampton Borough Council and others TCC 26-Sep-2006
The claimants sought an order under the Act to allow engineering operations to prevent nuisance from a tree subject to a tree preservation order. . .
Cited – Pabari v Secretary of State for Work and Pensions-And-Nilesh Pabari CA 10-Nov-2004
Housing Costs as part of child support assessment. The court considered the interpretation of the word ‘necessary’, saying that the Court must not qualify the word ‘necessary’ by reference to what might be regarded as reasonable. The word . .
Cited – Delaware Mansions Limited and others v Lord Mayor and Citizens of the City of Westminster HL 25-Oct-2001
The landowner claimed damages for works necessary to remediate damage to his land after encroachment of tree roots onto his property.
Held: The issue had not been properly settled in English law. The problem was to be resolved by applying a . .
Cited – Smith v Oliver 1989
. .
Cited by:
Cited – Cardinal Vaughan Memorial School, Regina (on The Application of) v The Archbishop of Westminster and Another CA 14-Apr-2011
Parent Governors of the School disputed the appointment by the defendant of representatives to the school governors, saying that they were ineligible in that parents of current students should have been appointed in their stead if available.
Lists of cited by and citing cases may be incomplete.
Planning, Land, Nuisance
Updated: 12 July 2022; Ref: scu.262940
