The felling of a tree might breach occupier’s right to respect for a home

25 April 2013 by Rosalind English

Lane v Kensington & Chelsea Royal London Borough Council (19 April 2013) – extempore judgement by Sir Raymond Jack QBD 

In Italo Calvino’s charming short story “The Baron in the Trees” the twelve year old son of an aristocratic family escapes the stultifications of home decorum by climbing up a tree, never to come down again. He literally makes his home in the treetops of his vast family estate.

So perhaps we shouldn’t quarrel with the inclusion of a tree as part of the concept of home life for the purposes of Article 8. The further twist is that the felling of this particular tree took place on a property where the appellant lived without a tenancy. Nevertheless, this event still amounted to a potential interference with his right to a home under Article 8.

The following account of the case is based on the Lawtel summary (£) as the judgment is not available.

Mr Lane’s father had a tenancy for a property with the local authority which, after his death, had passed to the appellant’s mother. On expiry, she agreed a fresh tenancy and was granted a lifetime licence permitting her to use the property for residential purposes. The appellant continued to live in the property after his mother’s death without paying rent. He suffered from chronic obsessive compulsive disorder which was triggered by changes to his home. Issues arose between Mr Lane and his neighbour  in respect of a sizeable tree in the small rear garden, which had overhung the neighbour’s garden and damaged his property with its roots. The appellant was particularly fixated on the tree. The local authority made an order entitling the neighbour to fell the tree. The appellant commenced proceedings against the local authority and his neighbour to obtain an injunction preventing the felling. At a preliminary issues hearing, the judge found that the appellant had no proprietary interest in the property and lived there as a trespasser; he had no claim by reason of him suffering from the disorder; and he could not advance a claim on the basis that the order interfered with his Article 8 rights.

Mr Lane appealed against this decision, submitting that a tree was part of his home just as part of a house might be. The court allowed the appeal.

Reasoning behind the judgment

Sir Raymond first considered the question of whether the property could be said to be the appellant’s home, even though he did not have any proprietary rights in it. The judge below had not been addressed on how Article 8 should be approached in the circumstances and had proceeded on the basis that because the local authority was exercising a statutory right Mr Lane was not able to rely on Article 8  (Qazi v Harrow LBC [2003] UKHL 43). In this appeal, the court approached the issue on the basis that the property was the appellant’s home for the purposes of Article 8, which did not require a proprietary right.  A small garden was a part of the home, and, the felling of a tree was a potential interference with it. Therefore, the issue of proportionality had to be considered in the appellant’s case.  An interference with a tree was a much lesser interference with the home than, for example, the enforcement of a right to repossess. Consequently, if it were not for Mr Lane’s disorder, the issue of proportionality would be plainly unarguable. But the tree did have a particular importance to him and his well-being could be significantly affected by its removal. Having not seen the medical evidence, the instant court could not make a judgment on any detrimental effect to the appellant. The case was remitted to the judge below so that the Article 8 issue could be considered with regards to proportionality.

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Related posts:

• More from Strasbourg on possession and Article 8
• When eviction breaches human rights
• Case comment: Human rights, proportionality and local authority evictions