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A large oak tree growing in Mr and Mrs Shephard's garden in Northamptonshire was said to be damaging the house next door by means of the familiar pattern of root encroachment and extraction of water. In legal jargon, this is a nuisance, writes Sue Lindsey. But the Shephards were powerless to do anything to help their neighbours, Ms Perrin and Mr Ramage, as the tree was protected by a Tree Preservation Order (TPO).

Breaching a TPO is a criminal offence. Perrin and Ramage made the proper application to the local authority for permission to fell the tree, but it was refused.

Their appeal to the secretary of state was dismissed, as even though the oak was implicated in the damage, there was an alternative engineering solution that would avoid the need to fell the tree.

But could Perrin and Ramage rely on section 198(6)(b) of the Town and Country Planning Act 1990, which provides that a TPO does not apply to the cutting down, uprooting, topping or lopping of any trees, so far as that is necessary for the prevention or abatement of a nuisance? Anyone carrying out works which are allowed by section 198(6)(b) is protected from being prosecuted. The local authority argued that because there were engineering works that would solve the problem, works to the tree were not necessary, hence there was no section 198(6)(b) protection.

Furthermore, they argued that Perrin and Ramage should pay for the engineering works themselves.

Perrin and Ramage went to court to find out if the local authority was right (Perrin and Ramage v Northampton Borough Council (26 September 2006)).

On the basis of assumed facts, the judge decided the preliminary legal question, whether it is relevant for the purposes of section 198(6)(b) that there are other works that could prevent the same nuisance.

The judge focused on two words in the section in order to interpret it; 'nuisance' and 'necessary'.

He concluded 'nuisance' means an actionable nuisance that either had caused or would shortly cause damage.

So, the section would not permit tree works that would abate mere encroachment by roots or branches.

As for 'necessary', that refers to the extent of works needed to abate the nuisance.

The judge concluded that in deciding what are necessary tree works, there is no need to take into account that there may be alternative works, including engineering, that might achieve the same result.

His reasoning included that section 198(6)(b) does not mention any considerations other than works to the tree itself. In addition, there are probably engineering solutions to most tree problems, and if those needed to be taken into account the section would in practice never apply. But the judge emphasised that section 198(6)(b) only allows the minimum works necessary to abate the nuisance; to go further would be an offence.

So, while someone planning to rely on section 198(6)(b) need not take into account that there may be alternative effective ways of controlling damage being caused by a protected tree, before reaching for their chainsaws they would be wise to consider taking advice as to whether works to the tree would be effective in abating a nuisance, and the minimum necessary work.

Sue Lindsey is a barrister at Crown Of- ce Chambers in London. Visit www.

crownofficechambers. com

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