Perrin & Anor v Northampton Borough Council & Ors [2007] EWCA Civ 1353 (19 December 2007)

Perrin & Anor v Northampton Borough Council & Ors [2007] EWCA Civ 1353 (19 December 2007)

The Court of Appeal held that in determining whether works to a tree protected by a tree preservation order are 'necessary' for the prevention or abatement of a nuisance under section 198(6)(b) of the Town and Country Planning Act 1990, it is relevant to consider whether alternative works (such as engineering solutions) could abate the nuisance. The existence of such alternatives may mean that works to the tree are not 'necessary' within the meaning of the statute. The judge at first instance erred in holding that the possibility of alternative works was irrelevant.

Citation
[2007] EWCA Civ 1353
Parties
Claimants/respondents: Perrin and another (Ms Alison Perrin and Mr William Ramage); Defendant/appellant: Northampton Borough Council; Defendants (not Parties to Appeal): Mr Frederick Shephard and Mrs Sandra Shephard
Jurisdiction
England and Wales
Judgment Date
19 December 2007
Procedural Posture
Appeal (civil) / Court of Appeal Judgment on Preliminary Issue From Technology & Construction Court
Outcome
Appeal allowed
Legal Topics
Tree Preservation Orders, Statutory Interpretation, Nuisance by Root Encroachment, Remedies for Nuisance, Exemptions Under Planning Legislation
Planning Law Property Law Nuisance Tree Preservation Orders Statutory Interpretation Nuisance by Root Encroachment Remedies for Nuisance Exemptions Under Planning Legislation

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Parties

Perrin and another (Ms Alison Perrin and Mr William Ramage)

Claimants/respondents

Northampton Borough Council

Defendant/appellant

Mr Frederick Shephard and Mrs Sandra Shephard

Defendants (not Parties to Appeal)

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Preliminary Issue From Technology & Construction Court

Legal Issues

  1. 1 Whether, for the purposes of section 198(6)(b) of the Town and Country Planning Act 1990, the existence of alternative works (such as engineering solutions) is relevant to determining if cutting down, uprooting, topping or lopping a tree is 'necessary' for the prevention or abatement of a nuisance.

Ratio Decidendi

The Court of Appeal held that in determining whether works to a tree protected by a tree preservation order are 'necessary' for the prevention or abatement of a nuisance under section 198(6)(b) of the Town and Country Planning Act 1990, it is relevant to consider whether alternative works (such as engineering solutions) could abate the nuisance. The existence of such alternatives may mean that works to the tree are not 'necessary' within the meaning of the statute. The judge at first instance erred in holding that the possibility of alternative works was irrelevant.

Court Disposition

Appeal allowed

Orders

  • The judge's order on the preliminary issue is set aside.
  • It is declared that in determining whether works to a tree are 'necessary' for the prevention or abatement of a nuisance under section 198(6)(b) of the Town and Country Planning Act 1990, the existence of alternative works (such as engineering solutions) is a relevant consideration.