PURPOSE/REASON

1. This report requires the Sub Committee to determine whether or not to confirm a tree preservation order (TPO) at Bourne Cottage, 9 Fishbourne Lane, Ryde (reference TPO/2005/26).

DETAILS OF THE ORDER

2. On 9 August 2005 a TPO was made on woodland at Bourne Cottage, 9 Fishbourne Lane, Ryde. The woodland order (W1) protects all trees of whatever species including understorey and regeneration. The grounds for making the TPO are that the woodland makes a contribution to the visual amenity of the site and streetscape. The woodland also provides valuable habitat for wildlife, including red squirrels.

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

4. An objection to the TPO has been received from the landowner’s solicitor. This letter is shown at Appendix B.

LOCATION AND SITE CHARACTERISTICS

5. The woodland that is the subject of this TPO is situated within the curtilage of Bourne Cottage, 9 Fishbourne Lane, Ryde. The site is located on the corner of Kite Hill and Fishbourne Lane, Ryde. The woodland is made of two differing types of woodland; these being positioned in areas east and west of the house.

6. The wooded area to the west of the property is ancient semi-natural woodland consisting of oak standards with a coppiced hazel and ash understorey. Oak standards with a coppice understorey is a traditional method of woodland management used in this country for many centuries. The ash coppice regrowth has been left unmanaged for many years and has grown into mature trees that form part of the woodland canopy. This western area of the woodland is of high visual amenity being visible from the busy thoroughfare of Kite Hill.

7. The wooded area to the east of the property consists predominantly of oak trees of varying age classes from juvenile to early ancient stages with a scattering of mature Scots pine and exotic specimens. The understorey consists of hazel and the juvenile regeneration of many varied woodland species. The area of the woodland is of high visual amenity being visible from Kite Hill, Fishbourne Lane and Eleanors Grove.

8. The woodland as a whole is an important contributor to the arboreal character of the area.

9. Some of the trees in the woodland have been protected since 1991 by TPO/1991/28 (see committee history below).

RELEVANT HISTORY - FACTUAL

10. The Council’s Tree Officer visited the site on 17 July 2005 and made an assessment of the trees and considered them to be worthy of protection. On 8 August 2005 the owner of the property enquired about tree protection on the site. On 9 August 2005, TPO/2005/26 was made and served.

11. On 22 August 2005 a letter of objection was received from the landowner’s solicitor. This letter is shown at Appendix B.

12. On 16 January 2006 the Tree Officer made a second visit to the site.

COMMITTEE HISTORY

13. There is existing, limited tree protection on the site. Medina Borough Council Land North of Kite Hill and West of Fishbourne Lane, Wootton, IW Tree Preservation Order 1991 (TPO/1991/28) was made on 21 June 1991 and confirmed on 27 September 1991. The grounds for making the TPO were “the trees contribute to the visual amenities of the area”. Area (A3) protects certain species of trees within the land protected by the current TPO.

· A3 – Ash, hazel, thorn, field maple, oak, sweet chestnut, horse chestnut, beech, poplar, yew, birch cherry, willow, sycamore, and mixed conifer.

14. TPO/1991/28 only protects those trees identified in the list of species above and which were present on the site at the time the TPO was made, ie 1991. Any subsequent tree growth is not protected by TPO/1991/28. An extract from TPO/1991/28 is shown at Appendix C.

COUNCIL POLICY

15. When a TPO is made and an objection is outstanding when a decision on whether or not to confirm it is required, the matter can be brought before the Miscellaneous Appeals Sub Committee for determination.

16. Councils are advised by the government to keep their TPOs under review. In particular they are advised to put in place a programme for reviewing the 'area orders' for which they are responsible. A review of the council’s TPO records has been undertaken. TPO/1991/28 was considered to be a priority for revision.

FORMAL CONSULTATION

17. Fire – No consultation necessary

18. Police – No consultation necessary.

19. Relevant Council departments. – Land Charges and Customer Service Centre have been copied the relevant documentation.

20. Parish and Town Councils – Ryde Forum was copied the relevant documentation.

21. Local Member - Cllr Mr Ivan Bulwer has been copied the relevant documents in connection with this matter.

THIRD PARTY REPRESENTATIONS

22. Objectors – The landowner’s solicitor has submitted an objection which is shown at Appendix B.

23. Supporters – No letters of support have been received.

FINANCIAL IMPLICATIONS

24. 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.

25. In addition, no claim will be valid

· For less than £500.00;

· When made more than 12 months after the decision.

26. 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

27. 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.”

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

29. When assessing amenity, government guidance states that it is usual for at least part of the trees 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.

30. 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

31. None applicable.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

32. 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

33. OPTION 1. Confirm TPO/2005/26 without modifications.

34. OPTION 2. Confirm TPO/2005/26 with modifications (recommended).

35. OPTION 3. Do not confirm TPO/2005/26.

EVALUATION

36. Consideration of objections.

On 22 August 2005 a letter of objection was received from the landowner’s solicitor. This letter is shown at Appendix B. 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 it demonstrates that the trees are not visible from a public place or if the Order is procedurally incorrect. The objections, followed by the Council’s comments on each matter, are as follows:

a. “[Our client] wishes the mature trees to be allowed to grow on the site but is apprehensive that the saplings and understorey will crowd out the mature trees and cause them to die, or die back”.

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 such 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. “The garden and the house [should be] excluded from the TPO”

The protected woodland excludes the house, garden and access road. Although the clearing may have been larger over forty years ago, as attested by the solicitor, the current extent of the tree cover can be seen from the aerial photograph at Appendix D. The Tree Officer re-visited the site on 16 January 2006. He agrees that an additional part of the garden to the north of Bourne Cottage should not be included in the protected woodland. It is proposed to modify the boundary of the woodland to exclude this additional piece of land. A map showing the proposed modification to the woodland boundary is shown at Appendix E.

c. “It is our client’s intention to apply for an English Woodland Grant Scheme for the site”.

As indicated in paragraph 31a above, a woodland TPO does not prevent good management of the trees. In fact, there are limitations to the making of TPOs on land in which the Forestry Commission has an interest – for example, if a Woodland Grant Scheme is in place. If the Forestry Commission has an interest, it must give its consent before a TPO is made. In the case of TPO/2005/26, the Forestry Commission does not have an interest in the land. The Forestry Commission was copied the TPO documents on 10 August 2005.

Note: A Woodland Grant Scheme relates to the applicant, not the land. Therefore, if the land changes ownership, the Woodland Grant Scheme may no longer apply. Bourne Cottage is currently for sale.

d. “[Various trees] have damaged the drains to the property”.

Sometimes roots do appear in drains but it is not always the case that they cause damage. If there is evidence that roots are causing damage to drains and the owners wish to carry out work to the roots to alleviate this problem, they can make an application to carry out work.

37. Included in the solicitor’s letter is a list of work that the owner of the site would like to carry out. This proposed work is intended to reinstate the garden as it may have been before the encroachment of the naturally regenerating woodland. As indicated above, the making of TPO does not mean that work cannot be carried out to the trees, as long as consent is sought from the council.

38. Conclusion

This is a woodland 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 current landowners have not indicated any intention to develop the land which is the subject of this TPO, in the future the site may be at risk from possible development pressure. The TPO was made to give additional and more robust protection to the woodland at Bourne Cottage. Some of the trees are also protected by an Area TPO which was made in 1991.

39. The landowner’s objections have been given full consideration. It is agreed that part of the site is garden and it is therefore not appropriate to be protected by this new TPO. It is proposed to modify the woodland boundary to include additional land to the north of Bourne Cottage.

RECOMMENDATIONS

40. OPTION 2. Confirm TPO/2005/26 with modifications.

APPENDICES ATTACHED

40. Appendix A: Plan from TPO/2005/26.

41. Appendix B: Letter of objection.

42. Appendix C: Extract from TPO/1991/28.

43. Appendix D: Aerial photograph.

44. Appendix E: Map showing proposed modification to woodland boundary.

BACKGROUND PAPERS

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

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

ANDREW ASHCROFT