PAPER A4

Purpose: For Decision

Committee: REGULATORY APPEALS COMMITTEE

Date: 12 DECEMBER 2002

Title: LAND TO NORTH WEST OF SCOTCHELLS BRIDGE, NEWPORT ROAD, LAKE -

TREE PRESERVATION ORDER NO. 11, 2002

REPORT OF THE STRATEGIC DIRECTOR OF CORPORATE AND ENVIRONMENT SERVICES

SUMMARY

The trees are two oaks alongside Newport Road close to Scotchells Bridge.

A TPO was made on 16 August 2002. An objection has been received. If the Order is to be confirmed this must be done by 15 February 2003.

BACKGROUND

Making of Order

A request was received from a member of the public for three oaks to be protected near Scotchells Bridge.

The Tree & Landscape Officer visited the site and concluded that all three trees had amenity value but that only two should be protected, because the third tree was growing immediately next to a telegraph pole.

A TPO was made on 16 August 2002.

The grounds for making the Order were "the trees are of high present and future amenity value and are visible from Newport Road, Scotchells Brook Lane and public footpath SS20, public bridleway SS57 and byway open to all traffic SS18."

Objection

An objection was received on 11 September 2002 from surveyors acting for the landowner.

The grounds for objection were that Athis area is hardly an attractive location@; Ahad ... there been any problem with the trees the economic solution would probably be .... to have them felled to save future maintenance@; Athe imposition of the Order is therefore ongoing financial burden@.

Comments on objections

The Tree & Landscape Officer wrote back on 12 September, responding to the points raised by the objection letter, and suggested that their client could apply for any works they wished to carry out, but no application or further reply has been received.

>It is in part precisely because the area is no longer especially attractive that I consider the trees to be worth protecting (see para 3.2 of DETR "Tree Preservation Orders: a Guide to the Law and Good Practice", copied extract enclosed).

>As for the cost of managing the trees, your clients are already responsible for the trees, and the existence of the Order makes no difference to that. If at any future time there is "a problem with the trees", for example that they become dangerous and the danger could not be eliminated except by removing the trees, then the works would be exempt (see answers to questions 13 and 14 in DTLR booklet "Protected Trees").

>If your clients wish to carry out any works, please find an application form enclosed.

>I would also point out that of the three oak trees along the road frontage of the site when I assessed the trees on 4 July 2002, I only included two trees in the Tree Preservation Order. I excluded the third westernmost of the three trees because it was immediately next to a telegraph pole, and I considered it unreasonable to expect a landowner to be required the frequent pruning which would be necessary to keep branches clear of the telephone and power lines.=

FINANCIAL IMPLICATIONS

As with any TPO, compensation could be claimed by an applicant if consent to remove trees or for works to the trees were refused, and the refusal resulted in loss or damage.

ENVIRONMENTAL IMPLICATIONS

Removal of the trees would be a loss for the local landscape.

LEGAL IMPLICATIONS

Regarding the confirmation of the TPO there are no legal implications per se. There is guidance and case law on the issues raised by the solicitors for one of the objectors, which turn on whether the tree and/or its roots and branches are an "actionable nuisance", in other words whether there is an immediate risk of their causing actual foreseeable harm. It would obviously affect the view of the Tree & Landscape Officer if she was of the view, or had evidence, that the tree was causing an actionable nuisance. That is not the case here, nor has any substantive evidence of this nature been provided by the objector to date.

Once the TPO had been confirmed this issue would arise if the objector or their agents were to lop all or part of the tree, as the council would have to review what action, if any, to take.

OPTIONS

Confirm TPO / 2002 / 11. If the order is confirmed it will ensure the continued existence of the trees for the foreseeable future.

If the order is not confirmed, the trees might be under threat. The third oak which was not protected was removed almost immediately after the Order was made.

RECOMMENDATIONS

Confirm TPO / 2002 / 11.

BACKGROUND PAPERS

1. Plan from TPO/2002/11 made 16 August 2002.

2. Letter of objection from surveyor acting for landowner, dated 9 September 2002, received 11 September 2002.

3. Letter in reply to landowner's agent dated 12 September 2002.

4. DETR "Tree Preservation Orders: a Guide to the Law and Good Practice"

Contact Name : Rowan Adams tel 4559

M J A FISHER

Strategic Director

Corporate and Environment Services