PURPOSE/REASON

1. This report requires the committee to determine whether or not to confirm the Christmas Tree Field aka Nine Acres Tree Preservation Order TPO/2006/8.

DETAILS OF THE ORDER

2. On 17 March 2006 a TPO was made to protect trees at The Christmas Field aka Nine Acres, Freshwater. The TPO protects 6 x individual oak trees, 4 x groups of oak trees and a woodland, protecting all trees of whatever species including understorey and regeneration.

3. The plan from the TPO is shown at Appendix A.

4. An objection to the TPO has been received from the landowners in the form of a letter and an email. The letter and email are shown at Appendix B.

LOCATION AND SITE CHARACTERISTICS

5. The trees that are the subject of this TPO are situated on a piece of land 3.4 hectares in area. The land is to the east of Golden Ridge and to the north of Collards Close, Freshwater. It is bordered on three sides (west, north and east) by public footpaths F16 and F15 and bridleway F15. The order protects a wooded area, individual trees and groups of trees situated throughout the piece of land in question.

6. The wooded area is situated along the western and southern boundaries and extends into the centre of the site, covering approximately 50% of the total area of Christmas Tree Field. It is a young woodland of predominantly self set trees growing from the seed bank of the woodlands to the north. A large proportion of the trees that make up this wooded area are Oak; many just reaching maturity. The other species present are mostly indigenous with the exception of a small number of Norway Spruce planted at some point in the past as a commercial crop. The understorey consists of Hawthorn, Blackthorn, Hazel and juvenile regeneration of many varied woodland species. Many of the attributes typical of a mature woodland are already present, for instance small glades and a varied age class of trees. These aspects help to improve the site’s amenity value and habitat potential.

7. The groups of Oak trees are of early mature age class of varying form and size. Many of the trees which make up each group may not be worthy of protection if judged individually. However as a group their contribution to the amenity and character of the surrounding area is significant, which will increase as the trees mature. The individually protected trees are also all Oaks of shapes and form typical of Oak trees in the surrounding area. These trees contribute to the amenity and character of the surrounding area in a similar way to the groups of Oaks.

RELEVANT HISTORY - FACTUAL

5. On 28 October 2005 the council’s Tree Team received a phone call from a member of the public who was concerned about the amount of tree felling that had been carried out at The Christmas Tree Field. Although the tree clearance work had stopped, it was suggested that the work was going to recommence on 1 November 2005.

6. On 31 October 2005, the Tree Officer visited the site and the decision was made to protect an area of all trees of whatever species, as a temporary measure. The Christmas Field aka Nine Acres, Freshwater Tree Preservation Order TPO/2005/35 was made and served.

7. On 27 February 2006 and 8 March 2006 the Tree Officer re-visited the site and surveyed the trees. On 17 March 2006 The Christmas Field aka Nine Acres, Freshwater Tree Preservation Order TPO/2006/8 was made and served. On the same day, the council decided not to confirm the previous TPO (TPO/2005/35) because any trees protected by TPO/2005/35 that are worthy of continued protection are included in TPO/2006/8.

8. On 20 April 2006 a letter was received from the landowners objecting to the TPO. On 23 April 2006 an email was received from one of the landowners. This email was received after the deadline for objections but as it is supplementary to the original objection it has been appended to the letter of objection. No other objections have been received.

9. There have been 32 letters and emails of support representing 43 people.

COMMITTEE HISTORY

10. On 31 October 2005, the council made The Christmas Tree Field aka Nine Acres, Freshwater Tree Preservation Order TPO/2005/35. The TPO protected an area (A1) of all trees of whatever species. The ‘area’ classification is only used by the council in emergencies, usually as a temporary measure until the trees can be re-assessed and classified. This decision was taken under delegated authority.

11. On 17 March 2006, the council decided not to confirm TPO/2005/35 and, on the same day, made a new TPO (The Christmas Field aka Nine Acres, Freshwater Tree Preservation Order TPO/2006/8) which is the subject of this report. This decision was taken under delegated authority.

COUNCIL POLICY

12. When a TPO is made and a substantial objection is outstanding when confirmation is required, it is normal practice to bring the matter before the Miscellaneous Appeals Committee for determination.

13. The protection of trees conforms to the council’s policy aim of the development of the social, economic and environmental well-being of the Island.

FORMAL CONSULTATION

13. Fire – No consultation was undertaken.

13. Police – No consultation was undertaken.

14. Relevant Council departments. – The council’s Property Services and Rights of Way departments were copied the relevant documentation. No comments were received from either department in relation to this TPO.

15. Parish and Town Councils – Freshwater Parish Council was copied the relevant documentation. No comments were received from Freshwater Parish Council in relation to this TPO.

16. Local Member - Cllr Mr Andy Sutton was copied the relevant documentation. No comments were received from Cllr Sutton in relation to this TPO.

THIRD PARTY REPRESENTATIONS

17. Objectors – There has been an objection received from the landowners.

18. Supporters – There have been 32 letters and emails of support representing 43 people.

FINANCIAL IMPLICATIONS

19. It is clear that if the Local Authority refuses permission to do works, including felling a protected tree, compensation may be claimed against the Local Authority by the landowner. However, any claim must be:

· The natural or probable cause of the decision;

· Within the contemplation of the Authority at the time;

· Quantifiable in money terms;

· Not too remote.

20. In addition, no claim will be valid

· For less than £500.00;

· When made more than 12 months after the decision.

21. No compensation is payable for loss of development value or other diminution in the value of the land. “Development value” means an increase in value attributed to the prospect of developing the land, including clearing it.

LEGAL IMPLICATIONS

22. The legislative framework is the Town and Country Planning Act 1990. As an objection has been received concerning the making of the Tree Preservation Order, the objections must be considered before the order is confirmed. In all other respects, the criteria for confirming a Tree Preservation Order are the same as for making it. Section 198 of the 1990 Act provides that “If it appears to the local planning authority that it is expedient in the interests of amenity to make provision for the protection of trees… in their area they may make... an order with respect to such trees… as may be specified in that order.”

23. The committee, deciding whether to make or in due course confirm such an order, must balance the level of amenity of the tree/s against the level of interference, inconvenience or disruption to the landowner and anyone else affected by the tree/s.

24. When assessing amenity DCLG guidance states that it is usual for at least part of the tree/s to be visible from a public place such as a road or footpath but this is not essential. In addition:

· The benefit may be present or future;

· Trees may be worthy of preservation for their beauty or contribution to the landscape, e.g. hiding an eyesore;

· Scarcity may enhance a tree’s value.

25. It is proper for the potential compensation to be considered by the committee as it reflects an element of the true cost of preserving a tree.

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

26. The council is under a statutory responsibility to consider s17 of the Crime and Disorder Act 1998. The council has considered the likely effect of the confirmation of the TPO on the area and in particular whether this would prejudice the prevention of crime and disorder in its area. The Council has sought the initial views of the Crime and Disorder Architectural liaison officer who, thus far, has not made any comment. It is the Council’s belief that the confirmation of the TPO will have no detrimental effect upon the prevention of crime and disorder in this area or the wider locality.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

27. If the recommendation is followed, it will directly impact on the rights of the landowner to use the land and therefore may interfere with their human rights under article 8 (Right to Privacy) and article 1 (Right to Peaceful Enjoyment of Possessions) of the first protocol of the European Convention on Human Rights. However, it is the author’s view that this interference is proportionate as it aims to secure a legitimate objective which in this case is the preservation of trees of very high present and future amenity to the general public.

OPTIONS

28. OPTION 1. Confirm TPO/2006/8 without modifications.

29. OPTION 2. Confirm TPO/2006/8 with modifications as shown on the plan which is included as appendix F (recommended).

30. OPTION 3. Do not confirm TPO/2006/8.

EVALUATION

31. Consideration of objections

On 20 April 2006 a letter of objection was received from the landowners. On 23 April 2006 an email was received from one of the landowners with the request that it be appended to the letter of objection. The letter and email of objection are shown at Appendix B.

DCLG guidance states that councils cannot confirm TPOs unless they have first considered any objections and representations that are duly made, which the landowners’ objections are. Representations and objections can be made on any grounds and the council considers them all. However, an objection will be given more weight if it identifies one or more specific reasons not to confirm the Order as it stands, for example, if the Order is procedurally incorrect. The objections, followed by the council’s comments on each matter, have been summarised as follows. A copy of the landowners’ objection is shown at Appendix B.

a. “The majority of trees are of very poor quality, are smothered by scrub and do not represent a visual amenity. The trees have no rarity value, the size and form of most is poor and they have limited value as a screen. The owners want to remove scrub and poor quality trees”.

The trees were assessed using the Tree Team’s amenity assessment form and those which had a sufficiently high score are protected by TPO/2006/8. The individual trees and those in groups G1, G2, G3 and G4 are not smothered by scrub and are all visible from the public footpaths that border the site. The woodland, W1, protects all trees of whatever species including understorey and regeneration. The landowners are able to clear brambles and bracken for example, without the consent of the council, as these are not woody species. The protection of trees with a TPO does not prevent their good management which may include the thinning out of saplings to enable the more mature trees to flourish. Consent from the council will be required for such operations but consent will not be unreasonably refused if the work is in accordance with good forestry or woodland management practices. Nor is it necessary to make repeated applications for such works. The legislation allows a woodland owner to submit a programme of work as one application, such as specific operations which are to be repeated on an annual or regular basis, or a series of operations phased over a period of time. Such applications are in fact encouraged as a means of promoting ongoing beneficial woodland management plans of, say, five years without the need for repeated applications over a relatively short period of time.

b. “Despite having little commercial value, the remaining conifers on the site are a crop, which the owners have a right to harvest”.

There are no conifers either individually protected or within the groups of protected trees; the protected conifers are all within woodland W1.The legislation allows for work to be carried out without consent to protected fruit trees which are cultivated on a commercial basis. This exemption does not apply to other commercially grown trees, therefore the council’s consent would be required to harvest the conifers protected by the above TPO. However, the landowners’ letter of objection states that the bulk of the tree crop was destroyed by fire in 1976, since when the land has been largely unmanaged. This would suggest that the remaining trees on site could not be classified as a crop as the Christmas tree business has not been operating at this site for over 30 years. Even the landowners’ arboricultural specialist states that there is little commercial value in the remaining conifer trees. Again, the landowners have been invited to make an application to carry out work to the trees and submit a woodland management plan, which may include felling the remaining conifer trees. Neither an application nor a woodland management plan has been received by the council.

c. “The owners recognise their responsibilities in respect of wildlife and have been scrupulous in observing these. The wildlife habitat is not threatened by the owners’ plan to remove scrub and poor quality trees”.

The Christmas Tree Field is a site of importance for nature conservation (SINC). The SINC citation and plan are shown at Appendix C. The nature conservation importance of the site is dependent upon a mosaic of woodland, scrub and open ground. Some removal of trees and scrub would not damage that interest, provided that it is carried out in a sympathetic manner. However, it is worth bearing in mind that certain trees which might be considered to be poor quality are actually of considerable value for wildlife.

d. “The owners have no development plans as such. The owners wish to generate income from the field and the creation of an open space within the field will allow them to evaluate future usage”.

On 26 October 2005 a letter was received from a planning consultant suggesting that The Christmas Tree Field (described in the letter as Land off Collards Close and Golden Ridge Road, Freshwater) may be an appropriate large site for residential development. This letter is shown at Appendix D. In their letter of objection the landowners request that the grounds for making the TPO are modified to remove the phrase “the trees are at risk from…future development plans”. In their objection, the landowners refer to their own management plan which, amongst other objectives, will enable the owners to evaluate revenue earning uses for the field. On 14 December 2005, the council requested a copy of the landowners’ plan which was referred to in their objection to the original TPO (TPO/2005/35). The landowners responded on 22 Jan 2006 by saying that they did not wish the management plan to be part of the public record; it was never intended for wider circulation and contains financial information which the landowners wish to keep confidential. On 30 January 2006, the landowners were invited to submit a copy of their plan with the confidential information removed. On 5 February 2006, the landowner offered to show the plan to the Tree Officer but did not want to provide a copy of it. On 14 February 2006 the council advised the landowners that, in order for any objections that refer to the plan to be considered, a copy must be available for public inspection. The council is only interested in the management of the trees and does not need to see any commercial, financial or personal information that may be contained in the plan. In the landowners’ objection to TPO/2006/8, they refer again to their management plan and, as a copy was still not supplied, were advised on 11 May 2006 that, although reference may be made to the plan, the committee members may ask for further information.

The landowners may wish to present the plan or extracts from it at the committee meeting. Members are reminded that they are not bound to admit late evidence, and in this case the time period for submission of evidence was one week longer than the statutory requirement, and the council agreed to include a late email of evidence from the landowners nonetheless. The landowners have been given a reasonable opportunity to submit their management plan or indeed any other evidence but have chosen not to reveal the plan. At this stage even if they do produce a plan, it has no legal basis with regard to tree protection. The landowners cannot be required to adhere to the plan unless they also make an application for works based upon it, which they have not done.

e. “The owners want to remove the remaining conifers… as they are a crop… and at risk of being wind-thrown and represent a risk to the public”.

As stated in paragraph b above, the council has recognised the limited amenity value of some of the conifers, specifically to the northern end of the site. Consequently, there are no protected conifers on the site other than within in the woodland W1. The legislation allows the landowners cut down or cut back a tree which is dead, dying or dangerous without the council’s consent. Except in an emergency, landowners are advised to give the council at least five days’ notice before cutting down a tree which is dead, dying or dangerous.

f. “T3 is not a good specimen and should be re-visited”.

The term ‘a good specimen’ would depend on the intended use of the tree. Trees are protected primarily to protect the amenity of the area. Amenity is assessed using the council’s amenity assessment form. This tree (T3) was assessed and scored sufficiently highly to be worthy of protection. The council’s amenity assessment is shown at Appendix E. There is no requirement for the council to use an amenity assessment form and, although the council’s assessment is quite prescriptive, the legislation allows for subjectivity when assessing trees being considered for protection.

g. “Groups G1 to G4… are small, of poor form and growth is likely to be constrained because they are competing with each other. …These groups should be re-visited and reclassified to include quality trees only”.

The group category should, in general terms, be used for trees whose overall impact and quality merit protection. The intention of the group classification is not simply to protect trees which have individual merit and happen to be standing close to one another, but for their merit as a group. Each of the four groups was assessed for amenity. Amenity is judged by the council’s amenity assessment. The groups were assessed and scored sufficiently highly to be worthy of protection. The council’s amenity assessment is shown at Appendix E.

h. The landowners would like to remove “poor quality trees”, “dangerous trees”, “conifers” and “visually invasive scrub” from the protected woodland W1.

The protection of a woodland with a TPO does not prevent its good management - the legislation allows a woodland’s owner to submit a management plan as one application for work which may require operations to be repeated on an annual or regular basis, or a series of operations phased over a period of time. Such applications are in fact encouraged as a means of promoting ongoing beneficial woodland management over, say, five to ten years without the need for repeated applications. The landowners have been invited to submit a woodland management plan which might address some or all of the above issues. As yet, no management plan has been received.

i. “The owners object to the term understorey being applied to the woodland designation”. The landowners consider that this protection is outside the scope of the TPO and would like the term ‘understorey’ to be deleted from the Order.

Woodland Orders protect not only the trees that are within the woodland but also the understorey and regeneration.

‘Understorey' is growth below a wood's main canopy (overstorey). Understorey may consist of species that are immature overstorey, such as young oak or beech. Or in a 'coppice with standards' woodland it will include the coppice of, for example, hazel and field maple (underwood) which will never grow up to be overstorey. In some woods where they are present it will include trees such as holly, whitebeam and yew which are not coppice but rarely if ever form part of an overstorey. It could include, where present, woody shrubs such as thorn, dogwood, spindle and gorse but it does not include non-woody ground flora including bramble. In the woodland at The Christmas Tree Field the understorey consists of Hawthorn, Blackthorn, Hazel and juvenile regeneration of many varied woodland species.

'Regeneration' is new growth in an existing woodland from seed or regrowth from cut stumps or coppice stools. It can include, where present, trees, coppice and woody shrubs.

This inclusion of understorey and regeneration ensures that trees that grow or are planted after the date of the Order are protected. However the term is only included for clarification and is not essential to be included in the wording of the TPO. Even if the council chose to delete the term understorey from TPO/2006/8, the existing understorey and regeneration would still be protected by the Order, although the type of protection intended would be less clear and there would be a greater chance that the TPO could be misinterpreted in the future.

If the council wants the understorey and regeneration to be unprotected, the council could make an ‘area’ TPO. However, this is not recommended. The ‘area’ classification has drawbacks. Firstly, it is possible that trees will be included in the TPO which do not merit protection. Secondly, unlike woodlands, the TPO protects only those trees standing at the time the TPO was made. This means that, as time goes by and older trees die, fewer and fewer trees are protected until, eventually, no protected trees remain on the site. Councils are encouraged to replace ‘area’ TPOs with individual or group classifications. In the case of the trees at The Christmas Tree Field, the previous TPO (which was an ‘area’ Order) has been reviewed and the results of that review have been used to make TPO/2006/8 (the subject of this report).

The owners have expressed concern about their own ability to identify understorey and regeneration. On 28 April 2006 the council sent an email to Mr. Ralph Bond explaining, “if you are in any doubt as to whether proposed works need consent or not, then please make an application, which costs nothing. When the Tree Officer visits the site as part of the application process, he will be able to indicate to you which trees are protected.”

j. “[The] owners need to manage the land in order to reduce the risk of fire and obtain cover for [their] public liabilities”,

As described in paragraph h above, the protection of a woodland does not prevent its good management. The council encourages the landowners to submit a woodland management plan which may include works to reduce the risk of fire or anti-social behaviour.

k. “The…[protected] woodland includes areas to the southern boundary which have been cleared by property owners in Collards Close. It is clearly inappropriate that these areas should have a woodland designation”.

The council acknowledges that, although the residents of Collards Close do not own the land, they have (with the landowners’ consent) extended their gardens in a northerly direction, into the woodland. This cleared land is currently within the boundary of the protected woodland. Government guidance states that the use of the woodland classification is unlikely to be appropriate in gardens. Therefore, the council is proposing that W1 is modified to exclude those parts of the woodland which are within gardens. See Appendix F for plan showing proposed modifications. The excluded area is plotted in line with the suggested boundary line offered by the objectors.

32. Summary of supporting comments.

There have been 32 letters and emails of support representing 43 people. The comments of have been categorised and some are summarised below. Not all comments have been included as some repeat similar themes. All the letters and emails will be available for inspection at the committee meeting.

a. Trees and visual amenity

“I urge the council to do all it can to encourage the owners to re-instate and protect this woodland area …for its value as a visual amenity”

“There has been too much destruction of trees… in Freshwater…that for this TPO to be granted and, we hope …confirmed for the future, is great”.

“It would be a shame if any more trees were destroyed from the field”.

“I object to the way we are destroying the lovely woodlands and forests”.

“Our children enjoy the woodland… and wildlife”.

“This site should remain a woodland area”.

“This is a local visual amenity of natural woodland”.

“I am in full support of the TPO… my reason is visual amenity of the landscape”.

“I feel that the Christmas Tree Field makes a valuable contribution to the attractive landscape”.

“It would be good if the Christmas Tree Field could be allowed to regenerate”.

“I would like to se the site replanted with trees”.

b. Wildlife considerations

“This area is a valuable habitat for wildlife. I understand that both squirrels and badgers have been seen on the site”.

“I believe it is an area of wildlife importance”.

“Preserving these sites for the habitat of wildlife is an important issue for us”.

“It would be heart-breaking if this wildlife haven were destroyed”.

“We cannot continue to lose more of our lovely island and its animals and birds”

“The area supports foxes… squirrel …pheasants, many badgers and other wildlife, including many species of birds”.

“We beg the authorities not to allow this area of local natural habitat to be devastated, but to allow it remain a home to the local birds and animals which have always been here”.

“We implore you to protect the rest of the plants and habitats on this site on a permanent basis”.

“[This] habitat for red squirrels, badgers and other wildlife… should be protected by a TPO”.

c. General support

“I would like to express my full support for the TPO”.

“It seems the whole site would have been lost by now if the council had not intervened just in time”.

“I would like to give my full support [to the TPO]”.

“My husband and I … are in full agreement with the TPO”.

“I fully endorse the council’s decision to place another TPO on the Christmas Tree Field”.

“Thank you for your work on the TPO”

“Thank you very much for helping to obtain the TPO”.

“I’m very pleased to know, at last, we have a council that is listening to the people”.

“May we extend our thanks to you and your department for the prompt and helpful way in which you’ve handled what must be a somewhat sensitive matter”

“I would like to say thank you all for supporting the views of the local residents”.

“I would like to thank you for acting so promptly”.

d. Permanent protection

“I think it is very important that the Order is made permanent”.

“I do hope the council will confirm this Order”.

“Please make the TPO permanent”.

“The council should be doing their utmost to protect this amenity space by issuing permanent tree preservation orders”.

“We express the hope that [the TPO] remains in force in the future”.

“I am in favour of the above mentioned TPO being made permanent”.

“We hope that the Order will be confirmed by the council in due course so that the wildlife habitat may be preserved”.

“I wish to add my support to the… TPO and… it should be made permanent”.

“It is essential to confirm this new TPO as soon as possible to protect the remaining trees and woodland and of course the wildlife”.

“We just hope the TPO stays permanently”.

d. Other considerations

“As the trees take a lot of water, cutting that amount down in the copse will cause more flooding”.

Conclusion

33. The grounds for making the TPO are that the trees make a contribution to the visual amenity of the site and landscape. The trees are visible from Collards Close and Golden Ridge, Freshwater and public footpaths F16 and F65 and bridleway F15. The trees also provide a valuable habitat for wildlife, including red squirrels. The trees are at risk from felling operations and future development proposals.

34. The trees and woodland at the Christmas Tree Field are of landscape and ecological importance. It is a site of importance for nature conservation (SINC) because of the woodland and wildlife species that use it. Although the landowners have not submitted any planning application for the site, there has been a request for it to be included as a site residential development within the emerging LDF; in the future the site may be at risk from possible development pressure.

34. The landowners’ objections have been given full consideration. The council agrees that part of the site is effectively garden and is therefore not appropriate to be protected by this TPO. It is proposed to modify the woodland boundary to exclude land to the north of 80-98 Collards Close, Freshwater. This proposed modification in line with one of the landowners’ suggestions.

RECOMMENDATIONS

35. OPTION 2. Confirm TPO/2006/8 with modifications as shown on the plan which is included as appendix F.

APPENDICES ATTACHED

36. Appendix A: Plan from TPO/2006/8.

37. Appendix B: Letter and email of objection.

38. Appendix C: SINC citation and map.

39. Appendix D: Letter from planning consultant.

40. Appendix E: Assessment of trees for possible new TPO.

41. Appendix F: Plan showing proposed modifications.

BACKGROUND PAPERS

42 ‘Tree Preservation Orders, a Guide to the Law and Good Practice’ DETR 1999.

Contact Point : Jerry Willis tel : 823893 email : [email protected]

ANDREW ASHCROFT

Head of Planning Services

REPORT OF THE HEAD OF PLANNING SERVICES