PAPER B

 

                                                                                                             Purpose : For  Decision

 

Committee :   REGULATORY APPEALS COMMITTEE

 

Date :              12 NOVEMBER 2004

 

Title :               TREE PRESERVATION ORDER TPO/2004/15 - 238 UPTON ROAD, RYDE

 

REPORT OF THE  HEAD OF PLANNING SERVICES

 

 

PURPOSE/REASON

 

1.                  This report requires the Committee to determine whether or not to confirm TPO/2004/15 – 238 Upton Road, Ryde.

 

DETAILS OF THE ORDER

 

2.                  On 19th August 2004 a TPO was made on 7 individual trees (5 x English oak, 1 x ash and 1 x poplar) at 238 Upton Road, Ryde.

 

3.                  An objection was received from the landowner’s agent. This is shown at Appendix B. The letter had an accompanying report from a Tree Consultant. This is shown at Appendix C.

 

LOCATION AND SITE CHARACTERISTICS 

 

4.         The land, which is the subject of this new TPO, is a residential garden on a corner plot. The house is unoccupied and the site has been the subject of several planning applications.

 

RELEVANT HISTORY - FACTUAL

 

5.                  A Development Control Officer requested that the Council’s Tree Officer visit the site in relation to a planning application (TCP/6502C/P/01042/04). On 17th August 2004 the Tree Officer visited the site in response to this request and, following assessment of the trees, some were considered to be of sufficient amenity value that a TPO was made to protect them.

 

6.                  A Tree Preservation Order was made on 19th August 2004 (TPO/2004/15).

 

COMMITTEE HISTORY

 

7.                  An application for demolition of bungalow; outline for residential development with parking and access off Windmill Close (TCP/6502C/P/01042/04) was refused on 25 August 2004 for the following reasons:

 

a.      The proposal would result in a poor arrangement of dwellings in so far as it lacks a cohesive layout, takes little account of views into and out of the site and does not adequately incorporate landscape features and existing trees.  In consequence, the proposed development would detract from the character and amenities of the area and is therefore contrary to Policies S6 (All Development Will be Expected to be of a High Standard of Design), G4 (General Locational Criteria for Development), D1 (Standards of Design), D2 (Standards for Development Within the Site), D3 (Landscaping) and C12 (Development Affecting Trees and Woodland) of the Isle of Wight Unitary Development Plan.

 

b.      The proposal seeks to remove trees and potentially affect trees shown to be retained which are a significant feature in the local landscape, worthy of retention, which appear to be in a sound and healthy condition and therefore their proposed felling would result in undue loss and detriment to the visual amenities of the locality and would therefore be contrary to Policy S10 (If It Will Conserve or Enhance The Features of Special Character of These Areas) and Policy C12 (Development Affecting Trees and Woodland) of the Isle of Wight Unitary Development Plan.

 

c.      The information accompanying this application is inadequate and deficient in detail in respect of foul and surface water disposal so that the Local Planning Authority is unable to consider fully the effects of the proposal on the existing system and in the absence of further details it is considered that the proposed development cannot be adequately drained and is therefore contrary to Policy U11 (Infrastructure and Services Provision) of the Isle of Wight Unitary Development Plan.

 

COUNCIL POLICY

 

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

 

FORMAL CONSULTATION

 

9.                  Fire – No consultation applicable

 

13.             Police – No consultation applicable.

 

14.             Relevant Council departments. – The Principal Planning Officer was notified of the new TPO.

 

15.             Parish and Town Councils – Ryde Help Centre was copied the relevant documentation.

 

16.             Local Member – Cllr Gauntlett has been copied the relevant documents in connection with this matter.

 

THIRD PARTY REPRESENTATIONS

 

17.             Objectors – A letter and report were received from the landowner’s agent. These are attached as Appendix B and Appendix C respectively.

 

18.             Supporters – No letters of support have been received. However, a telephone call in support of the TPO was received from a neighbour.

 

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 against the level of interference, inconvenience or disruption to the landowner and anyone else affected by the tree(s).

 

24.             When assessing amenity D.E.T.R. 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.

 

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.             None applicable.

 

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 advised 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.

 

28.             With regard to the Human Rights Act Article 6 (Right to a Fair Trial) the legislation provides no right of appeal against a TPO, either when made or confirmed. An appeal to the Secretary of State can be made, however, following an application to cut down or carry out work on trees protected by the TPO. The validity of a TPO cannot be challenged in any legal proceedings except by way of application to the High Court. An application to the High Court may be made by any person who is 'aggrieved' by a TPO on the grounds:

 

a.      that the TPO is not within the powers of the Act, or

b.      that the requirements of the Act or Regulations have not been complied with in relation to the TPO.

 

            To be 'aggrieved' applicants should be able to show that they have a sufficiently direct interest in the matter. An application must be made within six weeks from the date of confirmation of the TPO. The High Court may quash the TPO or suspend its operation wholly or in part. It is advised that in this case this procedure is sufficient to satisfy the requirements of the Human Rights Act (Article 6).

 

OPTIONS

 

29.             OPTION 1. Confirm TPO/2004/15 without modifications.

 

30.             OPTION 2. Confirm TPO/2004/15 with modifications(recommended)..

 

31.             OPTION 3. Do not confirm TPO/2004/15.

 

EVALUATION

 

32.             A Development Control Officer requested that the Council’s Tree Officer visit the site in relation to a planning application (TCP/6502C/P/01042/04). On 17th August 2004 the Council’s Tree Officer visited the site in response to this request.

 

33.             The trees on the site were assessed and 7 individual trees (5 x oaks, 1 x ash and 1 x black poplar) were considered to be of sufficient visual amenity value to be protected by a Tree Preservation Order. The Tree Officer’s assessment is shown at Appendix D. A copy of the plan for TPO/2004/15 is shown at Appendix A.

 

34.             A Tree Preservation Order was made on 19th August 2004 (TPO/2004/15).

 

35.             On 20th September 2004 a letter of objection was received from the landowner’s agent. This is shown at Appendix B. The letter had an accompanying report from a Tree Consultant. This is shown at Appendix C.

 

36.             The trees on the site were assessed by the objector’s tree contractor. Each tree will be discussed in this report in turn, first with the Tree Officer’s assessment and then with the objector’s consultant’s comments, followed by a recommendation.

 

37.             The Tree Officer’s assessment of T1 – oak (Quercus robur) states that the condition of the tree is ‘good’ and it scores 8 points (a value of 8 or more qualifies the tree for a TPO). Its scores are as follows:

 

a.      ‘3’ for importance of position in landscape,

b.      ‘3’ for the relationship of the tree to setting,

c.      ‘2’ for form.

 

38.             The objector’s tree consultant acknowledges that the tree is “highly publicly visible” and, although the foliage shows some insect derived damage it is ”of no consequence”. The tree’s “shoot extension growth appears healthy”. The objector’s tree consultant states that this tree is worthy of retention.

 

39.             Recommendation: that T1 be retained.

 

40.             The Tree Officer’s assessment of T2 – ash (Fraxinus excelsior) states that the condition of the tree is ‘good’ and it scores 8 points (a value of 8 or more qualifies the tree for a TPO). Its scores are as follows:

 

a.      ‘3’ for importance of position in landscape,

b.      ‘3’ for the relationship of the tree to setting,

c.      ‘2’ for form.

 

41.             The objector’s tree consultant acknowledges that the tree is “highly publicly visible” and, although tree’s foliage and extension growth appears to be reduced and its crown sparse, this “may be due to the onset of Autumn”. The tree’s branch structure has several included bark unions ”which are recognised as a structural defect”. The tree’s trunk has a swollen included bark union the dimensions of which appear to be “approaching the accepted critical failure (Helliwell 2004)”. The tree is described as having “low vitality (vigour)”. Otherwise, the objector’s tree consultant acknowledges that the tree’s trunk appears to be “free of major defect”.

 

42.             Recommendation: due to the defects identified in T2 (ash) it is recommended that the TPO be modified and T2 is deleted from the Order

 

43.             The Tree Officer’s assessment of T3 – black poplar (Populus nigra) states that the condition of the tree is ‘good’ and it scores 8 points (a value of 8 or more qualifies the tree for a TPO). Its scores are as follows:

 

a.      ‘3’ for importance of position in landscape,

b.      ‘3’ for the relationship of the tree to setting,

c.      ‘2’ for form.

 

44.             The objector’s tree consultant acknowledges that the tree is “highly publicly visible”, its foliage and extension growth “appears healthy”  and the branch structure “appears to be free from significant defect”. The objector’s tree consultant states that the northern trunk has been cut off and the resultant stub is heavily decayed; there are indications of “ongoing vascular dysfunction and possible vascular infection”. There is also wounding caused by wire which has been bound around both trunks.

 

45.             The present condition of T3 (black poplar) is not sufficient reason for it to not be worthy of continued protection. If there is any deterioration in the condition of the tree the landowner is free at any time to make an application for consent to carry out works to the tree (including felling).

 

46.             Recommendation: that T3 be retained.

 

47.             The Tree Officer’s assessment of T4 – English oak (Quercus robur) states that the condition of the tree is ‘good’ and it scores 8 points (a value of 8 or more qualifies the tree for a TPO). Its scores are as follows:

 

a.      ‘3’ for importance of position in landscape,

b.      ‘3’ for the relationship of the tree to setting,

c.      ‘2’ for form.

 

48.             The objector’s tree consultant acknowledges that the tree is “highly publicly visible” and, although the foliage shows some insect derived damage it is “of no consequence”. The tree’s “shoot extension growth appears healthy”. The tree’s branch structure is “asymmetric” and “minor deadwood is present throughout the crown”. The tree’s trunk is “heavily burred with epicormic shoots… the lower section appears to be in contact with the boundary wall”. The objector’s tree consultant states that this tree is worthy of retention. 

 

49.             Recommendation: that T4 be retained.

 

50.             The Tree Officer’s assessment of T5 – English oak (Quercus robur) states that the condition of the tree is ‘good’ and it scores 8 points (a value of 8 or more qualifies the tree for a TPO). Its scores are as follows:

 

a.      ‘3’ for importance of position in landscape,

b.      ‘3’ for the relationship of the tree to setting,

c.      ‘2’ for form.

 

51.             The objector’s tree consultant states that the tree is “less publicly visible” than other protected trees on site and, although the foliage shows some insect derived damage, it is “of no consequence”. The tree’s shoot extension growth “appears healthy”. The tree’s branch structure is “extremely asymmetric” . Otherwise, the objector’s tree consultant acknowledges that the tree’s trunk appears to be “free of major defect”.

 

52.             Recommendation: that T5 be retained. The appearance of T5 (English oak) is not sufficient reason for it to not be worthy of continued protection.

 

53.             The Tree Officer’s assessment of T6 – English oak (Quercus robur) states that the condition of the tree is ‘good’ and it scores 8 points (a value of 8 or more qualifies the tree for a TPO). Its scores are as follows:

 

a.      ‘3’ for importance of position in landscape,

b.      ‘3’ for the relationship of the tree to setting,

c.      ‘2’ for form.

 

54.             The objector’s tree consultant states that the tree is “less publicly visible” than other protected trees on site and, although it is shown as two separate trees on the map (T6 and ‘A’), it is one tree that breaks into two trees at ground level. The foliage shows some insect derived damage that is “of no consequence”. The tree’s shoot extension growth “appears healthy”.

 

55.             The objector’s tree consultant states that the “south eastern stem has suffered storm damage in the past and a large part of the upper trunk has snapped out leaving a large and slowly decaying wound”. Wire has also been wrapped around the lower section of this trunk, wounding the bark. This stem is shown as ‘A’ on the plan at Appendix A .

 

56.             The Tree Officer’s assessment of A – English oak (Quercus robur) states that the tree has “stem decay/damage” and it scores 7 points (a value of 8 or more qualifies the tree for a TPO). Its scores are as follows:

 

a.      ‘3’ for importance of position in landscape,

b.      ‘3’ for the relationship of the tree to setting,

c.      ‘1’ for form.

                                   

57.             Recommendation: as T6 and ‘A’ are the twin stems of the same oak tree, and ‘A’ has been assessed by the Council’s Tree Officer as being not worthy of protection, it is recommended that the TPO be modified and T6 be deleted from the Order.

 

58.             The Tree Officer’s assessment of T7 – English oak (Quercus robur) states that the condition of the tree is ‘good’ and it scores 8 points (a value of 8 or more qualifies the tree for a TPO). Its scores are as follows:

 

a.      ‘3’ for importance of position in landscape,

b.      ‘3’ for the relationship of the tree to setting,

c.      ‘2’ for form.

 

59.             The objector’s tree consultant states that the tree is “barely visible from the public highway” and, although the foliage shows some insect derived damage it is “of no consequence”. The tree’s shoot extension growth “appears healthy”. The tree’s branch structure is formed “entirely of pollard regrowth” and the broken stubs of the scaffold limbs are in “various stages of decay”. Storm damage wounds are “present” around the pollard area. Otherwise, the objector’s tree consultant acknowledges that the tree’s trunk appears to be “free of significant defect”.

 

60.             Recommendation: that T7 be retained. The condition of T7 (English oak) is not sufficient reason for it to not be worthy of continued protection. If there is any deterioration in the condition of the tree the landowner is free at any time to make an application for consent to carry out works to the tree (including felling).

 

61.             The objector’s tree consultant also makes assessments of two additional trees on the site which are identified as T8 and T9 in the report shown at Appendix C. Neither of these trees is the subject of this TPO.

 

62.             The objector’s tree consultant concludes that T1 and T4 are the only trees worthy of retention. The report states that trees T5 and T6 rely on unprotected trees for shelter. If the unprotected trees were to be removed then trees T5 and T6 may fail.  Trees T2 and T3 show signs of decay. It is possible that the consultant does not consider T7 to be worthy of continued protection because it is “barely visible from the public highway”.

 

63.             In light of the objector’s tree contractor’s report, the following modifications to the TPO are proposed:

 

·                    T2 – ash: delete.

Reason: the tree’s condition indicates that the tree does not have long term amenity value.

·                    T6 – English oak: delete.

Reason: one stem of the tree is in poor condition which indicates that the tree does not have long term amenity value.

 

RECOMMENDATION

 

64.         OPTION 2. Confirm TPO/2004/15 with modifications.

 

·          T2 and T6 be deleted from the Order.

                                               

APPENDICES ATTACHED

 

65.             Appendix A: Plan from TPO/2004/15.

 

66.             Appendix B: Letter of objection.

 

67.             Appendix C: Objector’s Tree Consultant’s report.

 

68.             Appendix D: Council’s Tree Officer’s assessment of trees.

 

BACKGROUND PAPERS

 

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

 

Contact Point : Wayne Stewart, Tree Officer  (   823893 [email protected]

 

ANDREW ASHCROFT

Head of Planning Services