Tree Root Damage 

The Court of Appeal has recently reviewed whether damage caused to a house by the roots of an oak tree, subject to a Tree Preservation Order (TPO) nonetheless entitles the owners to have the tree felled.

The Court of Appeal was asked to determine whether it was irrelevant that other measures might prevent or stop the tree root nuisance.

The owners wanted to rely on a provision under the Town and County Planning Act 1990 by which the TPO would not apply to the cutting down of the tree to the extent that this was necessary to prevent or put an end to nuisance (in its legal sense).

Northampton Borough Council argued that felling was unnecessary, as underpinning the house would prevent or put an end to the problem.

The Court of Appeal found in favour of the Council.  In looking at the expression "necessary" the issue was whether there might be other measures taken that might not involve the tree itself and produce the desired affect.  The first question to be asked was whether anything needed to be done to the tree at all. "So far if necessary" should be treated as if it read "If and so far as necessary..........".

Consequently a tree should remain protected unless there is a real need to lift the TPO.  Owners affected by this will therefore need to review all other means available before suggesting a protected tree must be felled.

Perring v Northampton Borough Council [2007] EWCA Civ 1353