What rights does a tree have?

Trees, nuisance trees and tree preservation orders (TPOs) have been given a root and branch review by His Honour Judge Peter Coulson in a recent TCC case. Apparently, it has become common for local authorities to play hardball by refusing permission to lop or fell trees protected by a TPO, even if they posed a threat to your lovely house. Let me tell you what happened.

Mr Reg Perrin lives at Great Billing, Northamptonshire. Next door live Harry Shepherd and his wife. They have a splendid oak tree standing sturdily in their garden. The neighbours got on well. One day Mr Perrin noticed some nasty cracking to his brickwork. An expert said the cause was the spreading roots of the Shepherd’s oak tree. Assume that that cause is correct. Now then, the ordinary rule is that the neighbour is liable in nuisance. That’s the common law position. My tree roots, my tree’s overhanging branches within your land, is not a trespass; it is a nuisance. There is a right available to you as owner of that land to cut away the boughs of trees and roots even though the tree is not yours. You are abating a nuisance … providing you do not infringe on your neighbour’s land. Further, it is what the lawyers call an “actionable nuisance” if my tree has caused damage or, if no action is taken to prevent it, damage will imminently be caused. So far so good.

But what’s the score if that tree has been nabbed by the council? It becomes a tree of “such interest of amenity” that it ought to be labelled with a TPO. And do you know that if anyone then mucks around with that TPO tree, it is a criminal offence. A TPO can prohibit cutting down, lopping, uprooting, wilful damage, or wilful destruction without the consent of the local authority folk. The fine is a maximum of £20,000 in the magistrates’ court. More serious behaviour goes to the crown court where the fine is unlimited. By the way, your council keeps a public list of TPO trees.

So let’s go back to the Shepherds’ oak. Their neighbour has suffered damage to his wall, but the TPO stops him doing anything about it. Northampton council now did what a lot of local authorities do. It told Mr Perrin to stay his axe and spare the tree. Instead they said it was open to him to underpin his house and, if he likes, install a concrete root barrier. As for the cost of professional design fees and the odd bit of civil engineering work, well that’s not the council’s problem.

Credit: Simone Lia

"Well, there's no point in arguing with a tree, so we thought if you can't beat 'em, join em."

‘Ah,’ said Northampton, ‘felling is not necessary because you can spend your cash, even remortgage your house, to abate the nuisance’

Hold on a minute. The legislation dealing with TPOs – the Town & Country Planning Act 1990 – has a exemption clause. The TPO shall fall away if cutting down, uprooting, topping or lopping is necessary for the abatement of a nuisance. “Ah,” said the council, “it’s not ‘necessary’ because you can spend your cash, even remortgage the house, to abate the nuisance” by means of a neat piece of civil engineering. So it’s not “necessary” to tamper with our oak. Mr Perrin appealed the council’s decision to the secretary of state. The secretary of state said, “The evidence is not sufficient to justify felling a tree of such high amenity value, particularly as there is an alternative engineering solution.” Mr Perrin disagreed and brought his case to the TCC.

Can you see the crux of the argument? It is in the word “necessary”. A tree with a TPO can only be felled or lopped or whatever if it is “necessary”. And if a civil engineering solution can work then the tree can’t be touched. Mind you if Mr Perrin was on his uppers, or had no insurance, or the tree was nothing much to speak of then, argued Northampton, felling might be okay. Hmm. Parliament’s words in the act say no TPO shall apply if the cutting down, lopping, topping or whatever is necessary for the prevention of a nuisance.

There is a real human problem at this point. The reader of the rules in the act will want to construe the meaning of the words to favour their case. Northampton is the guardian of the tree. They are biased; so too is the person injured by the tree. But the words have to be read for the meaning of the words.

“Necessary” is a clumsy word. But if parliament intended engineering work to be an option, parliament would have said so in the act. Nothing like that is seen. So the judge accepted the argument that if a TPO tree causes a nuisance and a remedy is to lop, top or uproot, the cause of the TPO falls away. So it’s not on for Northampton or any other council to tell you to leave the tree alone and spend thousands on an engineering solution instead.