Problems With Trees - Preservation Orders

Cases involving damage to a property caused by trees located on a neighbour’s land, especially those dealing with subsidence or heave due to roots, are fairly common. One complication that arises is where the tree in question is subject to a preservation order.

In a recent case, a tree on a neighbour’s land was causing continuing damage to a house. As the tree was the subject of a preservation order, the homeowners applied to the council for planning permission to fell it. The homeowners considered that they should be entitled to a declaration that they could fell the tree because it was creating a nuisance and taking it down was necessary to prevent this continuing. The planning application was refused. The local authority considered that the nuisance could be prevented by other methods, such as creating a root barrier or by underpinning the affected house. The court, however, rejected the council’s argument, holding that the existence of alternative solutions to the problem was not relevant. The council therefore appealed to the Court of Appeal.

The Court of Appeal overturned the decision of the lower court. In its view, the purpose of the legislation that covers tree preservation orders is to preserve trees. Therefore, the existence of alternative means of abating the nuisance which would allow the preservation of the tree had to be considered. The legislation could not be considered to apply only to what might need to be done to the tree to solve the problem – it was reasonable to consider alternative action that might be taken which did not involve lopping or felling the tree.

It would appear, therefore, that in circumstances such as this the whole range of possible solutions will have to be considered before the court will support a decision to fell a tree which is the subject of a preservation order.

If you have problems with nuisance, caused by your neighbours or their plants, our experts can help you resolve them.