Local planning - Rooting for trouble

In Perrin v. Northampton Borough Council and Others (2007), the claimants' property was damaged by subsidence caused by a neighbour's oak tree. An arboriculturalist recommended the tree be felled. The oak tree, however, was subject to a tree preservation order, meaning the local planning authority's consent was required before any work on the tree could done. The LPA refused consent and a subsequent appeal to the Secretary of State was also rejected.

The claimants brought declaratory proceedings on the basis that s198(6)(b) of the Town and Country Planning Act (1990) provided statutory exemption to the effect that no TPO shall apply to the cutting down, uprooting, topping or lopping of any trees "... so far as may be necessary for the prevention or abatement of a nuisance". The LPA argued that felling the tree was not necessary as other, albeit potentially costly, engineering solutions were available. The court in the first instance held that the word necessary simply provides a link between the possible tree works and abatement of the nuisance; it was irrelevant that alternative methods of stabilising the property were available. It concluded that the purpose of s198(6)(b) is that a TPO will not apply where there is an actionable nuisance and so the neighbours were free to undertake works to the oak tree that avoided the need for the property to be underpinned.

However, on 19 December 2007, the Court of Appeal disagreed and reversed the decision. It held that the underlying purpose of the legislation was to preserve trees subject to a TPO. It would therefore be counterintuitive to ignore other steps that may be taken, except those to the tree itself. S198(6) should not be interpreted restrictively and all the circumstances should be considered, including alternative engineering solutions.

This ruling is a blow to homeowners and is likely to result in more properties being underpinned, at considerable cost to insurers. It remains to be seen whether or not the claim will be subject to an appeal to the House of Lords. If faced with a claim concerning a tree protected by a TPO, brokers should alert insurers and their client immediately of the difficulties and likely delays involved in dealing with it. Once sufficient evidence has been obtained of the alleged nuisance, an arboriculturalist may be appointed to apply to the LPA for permission to remove the tree. If the LPA is unwilling to consent to any tree works then insurers should seek further legal advice on alternative remedies and any potential for the payment of compensation from the LPA under s203 of the Act.

- Paul Leighton, partner and Jacob Stacey, solicitor, commercial and property risks, Beachcroft.