||All England Reporter
|| All ER (D) 08 (Oct)
|| EWHC 2331 (TCC)
||Queen's Bench Division (Technology and Construction Court)
Judge Peter Coulson QC
||Robin Green (instructed by Gaston Whybrew) for the claimants.
||James Findlay (instructed by Sharpe Pritchard) for the authority.
||26 September 2006
Town and country planning - Tree preservation order - Exemptions to application of order - Work necessary to prevent or abate a nuisance - Scope of exemption - Whether exemption requiring consideration of possibility of engineering works as alternative to cutting down tree - , s 198(6)(b).
The principal purpose of s198 of the was to preserve trees through the mechanism of the TPO, and the exemptions to the application of a TPO in s198(6) had to be carefully construed so as to ensure that the principal purpose of the legislation was not frustrated by too wide a construction of those exemptions. On its true construction, the word 'nuisance' in s198(6)(b) meant an actionable nuisance where damage had been caused or, if no action was taken to prevent it, would imminently be caused. Furthermore, the word 'necessary' therein governed the extent of the work to the tree and nothing more. Accordingly, alternative engineering schemes to remedy the nuisance posed by the tree were not relevant to the proper operation of that provision. Whether the lopping or felling of the tree was necessary to prevent or abate a nuisance was a question of fact, to be decided on the everyday sensible approach of a prudent citizen looking at the tree and deciding in his own mind whether he could properly say that lopping or felling was necessary.
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