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Allowing a tree to encroach on a neighbour’s land can constitute a
nuisance (whether the encroachment is by the branches or by the roots).
Damages will generally be the reasonable costs of remedial work (in
practice, stabilising the foundations of the property, to get the building
back to the state of repair that it was before the damage occurred).
Plus, of course, there is a common law right to self-help (ie by cutting through
the branches of an overhanging tree – or by lopping the offending roots
that have intruded into the property space).
But, what if the tree is subject to a Tree Preservation Order (s198 TCPA
1990)? In principle, that prohibits the cutting down, uprooting, topping
or lopping of the tree. However, there are exceptions when such actions
are permitted – in particular, if the tree is dying or dead, or has become
dangerous, or ‘so far as may be necessary for the prevention or
abatement of a nuisance’. Does this then mean that any ‘nuisance’ can
justify the cutting etc of a tree subject to a TPO?
According to the High Court, the exception in respect of ‘nuisance’ only
applies if there is an actionable nuisance resulting from actual or
imminent damage. Accordingly, mere encroachment onto the
neighbouring land would not of itself be sufficient to trigger the
exemption. Thus, the position under TCPA 1990 is different from that at
common law (where mere encroachment is enough).
Note that the works to abate the nuisance have to be ‘necessary’. But,
according to the High Court, the word ‘necessary’ has only a limited
meaning; it does not mean that there must be no alternative (eg an
expensive shoring-up operation). Thus, the end result of this decision is
likely to be a relaxing of standards in relation to TPOs. If there is an
actionable nuisance then cutting the tree will be permitted (even if a
considerably more expensive solution may be available). Perrin v
Northampton BC [2006] EWHC 2331 (TCC); source: www.practicallaw.
com/7-205-3031 (subscription service).
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