Perrin and another v Northampton Borough Council and Others
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Peter Coulson QC |
| Judgment Date | 26 September 2006 |
| Neutral Citation | [2006] EWHC 2331 (TCC) |
| Docket Number | Claim No. HT-06027 |
| Date | 26 September 2006 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2006] EWHC 2331 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE PETER COULSON QC
Claim No. HT-06027
Mr Robin Green (instructed by Gaston Whybrew) for the Claimants
Mr James Findlay (instructed by Sharpe Pritchard) for the First Defendant
Hearing dates: 7 th and 26th September 2006
Introduction
The maintenance of existing trees, and the planting of new saplings, comprises an important feature of urban and suburban planning in the UK. Trees provide pleasure, protection and shade; they help to soften the harsher man-made environment of brick, glass and steel. But the presence of trees in our towns and cities is not entirely benign: in particular, encroachment by tree roots can cause significant and lasting damage to the foundations of the very buildings whose appearance the trees are intended to enhance.
A balancing act is accordingly required: on the one hand, to encourage the preservation of trees; on the other, to ensure that such trees do not constitute a danger to people or a threat to the surrounding buildings. S.198 of the Town and Country Planning Act 1990 ("the 1990 Act") seeks to provide that balance. It prevents the lopping or felling of trees which are protected by Tree Preservation Orders ("TPOs"), but it also allows a mechanism by which, in certain specific circumstances set out in s.198(6), a protected tree might be lopped or felled without any requirement for prior permission. In addition, regulations issued under the Act allow a separate application to the local authority (and, on appeal, to the Secretary of State) for permission to lop or fell a protected tree.
On the assumed facts in the present case, the house belonging to the claimants, Ms Perrin and Mr Ramage, has been damaged by the encroachment of the tree roots of the oak tree in the garden belonging to their neighbours, the second and third defendants, Mr and Mrs Shephard. The tree is protected by a TPO. The claimants have sought from the first defendant, the relevant local authority, permission to fell the oak tree and their application has been refused. Their appeal to the Secretary of State was also rejected. The claimants now seek a declaration that, pursuant to s.198(6)(b), they can fell the tree anyway. The first defendant maintains that it is not necessary to fell the tree, not because felling would not abate the nuisance (it obviously would), but because other engineering works, such as the underpinning of the claimants' house, could be carried out instead, thereby curing the problem and preserving the tree. Thus it is the first defendant's case that it is not necessary to fell the oak tree, and the relevant exemption under s.198(6)(b) of the 1990 Act is not triggered.
Accordingly, one of the main questions raised by the preliminary issue in this case is whether, as a matter of construction of s.198(6)(b), the fact that other remedial works could be carried out (which would leave the tree intact) is relevant to the claimant's alleged entitlement to fell the tree under s.198(6). I was told at the Case Management Conference in June that this was a point which affected hundreds of TPOs in the UK, and I am aware that it is common for local authorities to refuse permission to lop or fell trees which are protected by TPOs on the grounds that other works can be carried out instead. Is such an approach a legitimate interpretation of s.198(6)(b) of the 1990 Act?
It is also instructive to stand back from these particular provisions of the 1990 Act and to note the effect on the claimants of the first defendant's stance in this case. At common law, a house owner whose property is damaged by the encroachment of roots belonging to a neighbour's tree has a claim against that neighbour in nuisance. As we shall see, in certain circumstances, that would render the neighbour liable for the costs of underpinning the property damaged by the tree roots. In the present case, the first defendant is contending that the costs of any such underpinning work that may be necessary should be borne by the claimants themselves, the owners of the property that has been damaged. Thus it is the effect of the first defendant's position in this case that, because this tree is the subject of a particular type of TPO, the claimants' ordinary rights at common law are effectively extinguished, and they can make no claim for the costs of any necessary underpinning works. Again it is necessary for me to determine whether that is a legitimate interpretation of the 1990 Act.
So far as material, s.198 of the 1990 Act provides as follows:
"s.198 Power to make tree preservation orders
(1) If it appears to a local planning authority that it is expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area, they may for that purpose make an order with respect to such trees, groups of trees or woodlands as may be specified in the order.
(2) An order under subsection (1) is in this Act referred to as a "tree preservation order".
(3) A tree preservation order may, in particular, make provision –
(a) for prohibiting (subject to any exemptions for which provision may be made by the order) the cutting down, lopping, uprooting, wilful damage or wilful destruction of trees except with the consent of the local planning authority, and for enabling that authority to give their consent subject to conditions;
(b) for securing the replanting, in such manner as may be prescribed by or under the order, of any part of a woodland area which is felled in the course of forestry operations permitted by or under the order;
(c) for applying, in relation to any consent under the order, and to applications for such consent, any of the provisions of this Act mentioned in subsection (4), subject to such adaptions and modifications as may be specified in the order …
(6) Without prejudice to any other exemptions for which provision may be made by a tree preservation order, no such order shall apply –
(a) to the cutting down, uprooting, topping or lopping of trees which are dying or dead or have become dangerous, or
(b) to the cutting down, uprooting, topping or lopping of any trees in compliance with any obligations imposed by or under an Act of Parliament or so far as may be necessary for the prevention or abatement of a nuisance …
(8) In relation to an application for consent under a tree preservation order the appropriate authority may by regulations make provision as to –
(a) the form and manner in which the application must be made;
(b) particulars of such matters as are to be included in the application;
(c) the documents or other materials as are to accompany the application."
It should be noted that the exemption at s.198(6) is based on very similar provisions in the Town and Country Planning Acts of 1947, 1962 and 1971. Thus, by way of example, s.60(6) of the 1971 Act provided:
"Without prejudice to any other exemptions for which provision may be made by a tree preservation order, no such order shall apply to the cutting down, topping or lopping of trees which are dying or dead or have become dangerous, or the cutting down, topping or lopping of any trees in compliance with any obligations imposed by or under an Act of Parliament or so far as may be necessary for the prevention or abatement of a nuisance."
S.199 of the 1990 Act sets out a number of provisions relating to the form of and procedure applicable to Tree Preservation Orders. Sub-section (2) provides:
"Provision may be made by regulations under this Act with respect –
(a) to the form of Tree Preservation Orders, and
(b) to the procedure to be followed in connection with the making and confirmation of such orders."
S.203 of the 1990 Act deals with compensation in respect of TPOs. It provides:
"A tree preservation order may make provision for the payment by the local planning authority, subject to such exceptions and conditions as may be specified in the order, for compensation in respect of loss or damage caused or incurred in consequence –
(a) of the refusal of any consent required under the order, or
(b) of the grant of any such consent subject to conditions."
It will be seen, therefore, that the Act itself provides for the possibility of —not an entitlement to —compensation; whether or not a home owner in the position of the claimants in the present case is entitled to compensation, where consent to lop or fell the tree is refused, will depend on the particular terms of the TPO.
In this context it is important to note that the TPO with which we are concerned was made on 21.2.75 in accordance with the provisions of the Town and Country Planning (Tree Preservation Order) Regulations 1969 ( SI 1969/17). As is common, these regulations contained what was called a 'model order' to be followed. The TPO of 21.2.75 was in the terms of that model order. Article 5 of the model order in the 1969 regulations permitted the local authority to certify that the trees in question had "an outstanding or special amenity value" and the effect of such a certificate was to remove the entitlement to compensation under Article 9 of the model order. There was such a certificate in the present case, thereby denying the claimants compensation for loss and damage in consequence of the refusal of permission to fell the tree. It should also be noted that the 1969 regulations have been superseded by the Town and Country Planning (Trees) Regulations 1999 (S.I. 1999/1892). The model order set out there does not permit the issue of certificates removing the right to compensation.
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