PURPOSE/REASON

1. This report requires the Committee to determine whether or not to confirm TPO/2004/21.

DETAILS OF THE ORDER

2. On 14^th October 2003 a TPO was made on 10 individual trees within the grounds of Timber and 1 group of trees within the grounds of the neighbouring property of Rondebosch.

3. A letter was sent to all consultees notifying them of a modification to be made at confirmation of the order – tree T25 is a sycamore (Acer pseudoplatanus), not, as previously described, an ash (Fraxinus excelsior). This letter is shown at Appendix B.

4. A letter of objection with supporting consultant’s report has been received from the landowner. This is shown at Appendix C.

LOCATION AND SITE CHARACTERISTICS

5. The property Timber occupies a site adjoining The Undercliff Drive on its northern or inland side. The grounds of the property slope toward the highway at an angle of approximately 45 degrees, the house itself occupying level ground at the top of this slope. Residential properties border the site and across The Undercliff Drive, woodland faces the property. At the time this report was prepared the sloping area of the grounds contained numerous significant and mature trees, primarily ash and sycamore. Despite the fact that the majority of the trees not addressed under this order are now dead, their contribution to the landscape of the area is significant, especially given the location being one of high visibility and proximity to an important road.

RELEVANT HISTORY – FACTUAL

6. Following allegations of destruction of protected trees in November of 2000, a train of events ensued which culminated in the publication of recommendations by the Local Government Ombudsman on 19^th March 2003. As part of the actions necessary to respond to these recommendations, the remaining healthy trees at Timber were surveyed and assessed by an arboricultural consultant appointed by the Council on 3^rd October 2003. The trees were considered to have sufficient current and future public amenity value for a Tree Preservation Order to be made to protect them. These trees are highly visible from The Undercliff Drive. They may also serve to stabilise this vulnerable area.

COMMITTEE HISTORY

7. Six previous TPOs have been made which include land at Timber.

8. The County of the Isle of Wight (Urban District of Ventnor) Tree Preservation Order 1954 (TPO/1954/1) protects trees within 1 x area (A1) and 7 x woodlands (W1-W7). Timber falls within the area A1. W1 and W2 have been superceded by South Wight Borough Council, Rew Copse, Week Down, Ventnor, Tree Preservation Order 1991 (TPO/1991/88). W4 was deleted when the order was confirmed.

9. Isle of Wight Council, Timber, Undercliff Drive, St Lawrence, Isle of Wight Tree Preservation Order TPO 17/2001 (TPO/2001/17) was made to protect 19 x individual trees. The reasons for making the TPO are that “the trees are of high present and future public amenity value and are visible from Undercliff Drive and from public footpath V79, the coastal path. They are also important as a wildlife habitat, especially for birds and squirrels. They form part of a green corridor along the undercliff. The trees also help maintain soil stability in the area”. Regulatory Appeals Committee considered the TPO on 30^th November 2001. It was resolved that the order be confirmed with modifications to exclude T8 beech and T19. This TPO has effectively been superceded by TPO/2003/6.

10. Isle of Wight Council, Timber, Undercliffe Drive, St Lawrence, Isle of Wight Tree Preservation Order, No 26/2001 (TPO/2001/26)protects trees within 1 x area (A1). The reasons for making the TPO are that “the trees are of public amenity value and are visible from Undercliff Drive and from public footpath V79, the coastal path”. The TPO was considered by Regulatory Appeals Committee on 30^th November 2001 and it was resolved that TPO/2001/26 should not be confirmed.

11. Isle of Wight Council, Land North of Undercliff Drive, Niton and St Lawrence, Isle of Wight Tree Preservation Order TPO 7/2002 (TPO/2002/7) protects trees within a woodland (W1) which includes land at the rear of Timber. The reasons for making TPO are “this is a partial revision of A1 of IWCC (Parish of Niton) TPO 1950, and a partial revision of A1 of IWCC (Urban District of Ventnor) TPO1954. The wood is of very high present and future public amenity value and is visible from Undercliff Drive and the coastal path - public footpaths NT28/V79, and from public footpaths N117 and V82. It is also important as a wildlife habitat, especially for dormice, badgers, ivy broomrape, Italian lords and ladies and white letter hairstreak butterfly. The wood may also contribute to land stability in the area”.

12. The Isle of Wight Council, Woodington, Timber, Rondebosch, Cheviot Cottage, Fleet House and Woodlands, Undercliff Drive, St Lawrence Tree Preservation Order 23/2002 (TPO/2002/23). The TPO protects 33 x individual trees (most of which are within the grounds of Timber) and 1 x group of trees (within the grounds of Rondebosch). The reasons for making TPO are “the trees are of high present and future public amenity value and are visible from Undercliff Drive and from public footpath V79, the coastal path. They are also important as a wildlife habitat, especially for birds and squirrels. They may also contribute to land stability in the Undercliff”. The TPO was considered by Regulatory Appeals Committee on 12^th December 2002 and it was resolved that Tree Preservation Order be confirmed with modifications to delete T6, T11 and T19 and to identify T28 as “cedar”.

13. Timber, Undercliff Drive, St Lawrence, Isle of Wight Tree Preservation Order 6/2003 (TPO/2003/6). The TPO protects trees within an area (A1) which covers the land at Timber. The reasons for making TPO are “the grounds for making the TPO are that this is a partial revision of IWC Land North of Undercliff Drive, Niton and St Lawrence, Isle of Wight Tree Preservation Order No. 7/2002 and IWC Woodington, Timber, Rondebosch, Cheviot Cottage, Fleet House and Woodlands, Undercliff Drive, St Lawrence Tree Preservation Order No. 23/2002, filing reference TPO/2002/7 and TPO/2002/23 made on 11^th June 2002 and 11^th September 2002. TPO/2002/23 was a revision of both TPO/2001/17 and TPO/2001/26; and TPO/2001/17, TPO/2001/26 and TPO/2002/7 were revisions of TPO/1954/1; the trees are of high present and future public amenity value and are visible from Undercliff Drive and from public footpath V79, the coastal path. They are also important as a wildlife habitat, especially for birds and red squirrels. They may also contribute to land stability in the Undercliff”. The TPO was considered by Regulatory Appeals Committee on 23^rd September 2003 and it was resolved that the matter be deferred so that the service of the original papers be investigated. The TPO was consequently served on the neighbouring property, Woodington. The TPO was not confirmed; TPO/2003/21 was made instead.

COUNCIL POLICY

14. 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

15. Fire – No consultation applicable

16. Police – No consultation applicable.

17. Relevant Council departments. No consultation applicable.

18. Parish and Town Councils – Ventnor Town Council was copied the relevant documentation.

19. Local Member - Cllr Bartlett has been copied the relevant documents in connection with this matter.

THIRD PARTY REPRESENTATIONS

20. Objectors – A letter of objection was received from the landowner. This is shown at Appendix C. A report was submitted by the landowner’s consultant. This is shown at Appendix D.

21. Supporters – The landowner has written in support of the inclusion of trees T2, T16, T17 and T24. This support is included in her letter shown at Appendix C.

22. Representations - A letter was received from a neighbour. This is shown at Appendix E. The arboricultural consultant appointed by the Council submitted an appraisal of the landowner’s report, and this is shown at Appendix F.

FINANCIAL IMPLICATIONS

23. 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.

24. In addition, no claim will be valid

· For less than £500.00;

· When made more than 12 months after the decision.

25. 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

26. 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.”

27. 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).

28. 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.

29. Please refer also to paragraph 41 below.

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

30. None applicable.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

31. 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 and article 1 of the first protocol of the European Convention on Human Rights. However, the legal advice offered by the Council’s legal section to the author is 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

32. OPTION 1. Confirm TPO/2003/21 without modifications.

33. OPTION 2. Confirm TPO/2003/21 with modifications (recommended).

34. OPTION 3. Do not confirm TPO/2003/21.

EVALUATION

35. On 17^th November 2003 a letter of objection was received from the landowner. This is shown at Appendix C. The landowner makes a general objection to the following trees being included in the TPO as “they do not conform to current Government advice, principally on the extent to which a tree contributes to the amenity by virtue of its appearance”. Her specific grounds of objection are:

· T3 (sweet gum) is “barely visible from the road and makes little or no impact on the landscape” and, due to its proximity to T25, is “losing its battle to thrive…[and]…has no potential to become a specimen [tree]”.

· T4 (Persian ironwood) is “little more than a low multi-stemmed shrub” and “makes no important contribution to the landscape”.

· T5 (Ash) “could be in a dangerous condition”.

· T22 (sycamore) is “not a specimen tree, it is not prominent”. Several of the tree’s failings are pointed out.

· T23 (sycamore) is a “poor specimen…making little impact”. Several of the tree’s failings are pointed out.

· The trees in G1 (4 x Monterey cypress) have “medium amenity value”.

36. The landowner also states that the proposed highway realignment of The Undercliff Drive will “involve the removal of 60 trees including trees T2, T3, T22, T24 and T25”. However, this realignment has not been finalised and it is not a material consideration.

37. On 19^th November 2003 the report of the arboricultural consultant retained by the landowner was received. This is shown at Appendix D. The consultant’s grounds of objection are:

· T3 (sweet gum) is a “stunted and deformed tree… [and]… is currently not a significant plant in the landscape”. Other comments were made about its size and shape.

· T4 (Persian ironwood) is described as a “shrub”. Its form is commented on.

· As a result of a climbing inspection,T5 (ash) is demonstrated to have “extensive decay”.

· T24 (Chusan palm) does not merit preservation because it is “not a native or naturalised tree…which would not be expected to live long”. Note: the landowner has written in support of the inclusion of this tree (see paragraph 18).

· T25 (sycamore) has two “zone[s] of decay at ground level”. It is suggested that this decay will “lead to the early demise of this tree”.

· The trees in G1 (4 x Monterey cypress) show a ”high risk of crown failure and threat to life and property”. Also “the crowns contain a significant amount of major deadwood and dieback”. It is implied that trees are under attack from Coryneum Canker.

38. On 19^th November 2003 a letter was received from a neighbour. This is shown at Appendix E. The letter suggests that G1 (4 x Monterey cypress) need not be included in TPO/2003/21 as the trees are already protected by TPO/2002/23.

39. On 9^th January 2004 a letter was received from the Council’s arboricultural consultant appraising the landowner’s consultant’s report. This is shown at Appendix F. The Council’s arboricultural consultant’s observations are:

· The comments about the size and shape of T3 (sweet gum) are disputed. It is “well in excess of 2 metres being nearer 4 metres in height” and “at the time of the Order being served the tree was considerably larger and was neither stunted or deformed”. However, the tree was damaged on 22^nd October 2003 by contractors felling an adjacent tree. The result was the loss of approximately 2 metres in height. “This does not render the tree unsustainable…[and]…it is still worthy of retention”. In response to the objector’s comments about the tree’s proximity to T25 the following observation has been made “ Sweet gum are planted as woodland edge trees in a number of well known arboretums, notably at Tetbury, where suppression from at least one side is inevitable”.

· T4 (Persian ironwood) is described as a “small tree” and its form and spread are “consistent with other examples…It’s current significance is both in its unusual form and comparative rarity forming a significant feature on the roadside terrace”.

· The seriousness of the problems of T5 (ash) revealed by the climbing inspection are acknowledged. The Council’s arboricultural consultant recommends that the “tree should be removed from the Order and felled as a matter of safety”.

· T24 (Chusan palm). “The tree’s origin does not merit its removal from the Order”. Also, it is stated, that its longevity is a matter of conjecture. “There is no dispute that the tree has impact in its location (confirmed by CBA’s own photograph)”.

· T25 (sycamore) has been protected since 1954 by TPO/1954/1. The tree has a mild imbalance in the crown which could be corrected with minimal tree surgery. The evidence of decay is “to a secondary and long dead leader” and “no evidence of the decay on the north side has been provided”. The tree has had a number of holes drilled at the base.

· “No evidence of disease or discolouration in any of the crowns has been noted” in the trees of G1 (4 x Monterey cypress).

· “The comments…appear to be very subjective and in direct opposition to results of inspections by myself and GOSE during 2003”.

40. The Council’s arboricultural consultant refers to an inspection report carried out at Timber by an Inspecting Officer appointed by the Government Office for the South East. The GOSE report was commissioned as a result of an appeal on the site. The Inspecting Officer visited the site on 18^th June 2003. His report is shown at Appendix G. The Inspecting Officer’s observations are:

· T25 (sycamore) is described as making a “positive contribution to the area” and its removal would have a “significant negative visual impact”. Also, “…the foliage is dense and healthy looking. At the base…is a shallow cavity where a secondary stem has been removed…but the decay is localised and not structurally significant”. Several small holes in the north side of the trunk are noted.

· Trees T22 and T23 are recommended for retention as “retaining them for the present would avoid making a large gap suddenly, which could cause other problems”.

41. These differences of opinion need to be viewed in light of the following. The Town and Country Planning Act offers no definition of either ‘amenity’ or ‘tree’. Neither, however, does it limit the application of a TPO to trees of a minimum size. For the purposes of TPO legislation, the High Court has held that a ‘tree’ is “anything which ordinarily one would call a tree”. As regards ‘amenity’, Local Planning Authorities are advised to take into account the three key criteria of visibility, individual impact and wider impact when assessing the suitability of specimens for protection. The benefit derived by way of the amenity value of the protected trees may (the legislation states) be “present or future” and “the value of trees may be enhanced by their scarcity”’. The latter is particularly relevant with regard to this site both in respect of the uncommon nature of some of the species, and the (recent) historical clearance of the site. It is important to remember that legal recourse (by way of applications for works) is open to landowners served with a TPO and concerns expressed as to the possible future state of trees should be viewed in light of this.

42. In response to certain of the representations made, the following modifications to the TPO are proposed:

· T5 (ash): delete from Order.

Reason: the tree shows extensive decay. A TPO should not normally be made to protect a tree which is dead, dying or dangerous.

· T25 (sycamore): modify from ‘ash’ to ‘sycamore’.

Reason: tree incorrectly labelled during the making of the new TPO.

· G1 (4 x Monterey cypress): delete from Order.

Reason: these trees are already protected by TPO/2002/23.

RECOMMENDATION

43. OPTION 2. Confirm TPO/2003/21 with modifications.

APPENDICES ATTACHED

44. Appendix A: Plan from TPO/2003/21.

45. Appendix B: Letter of correction.

46. Appendix C: Letter of objection from the landowner.

47. Appendix D: Landowner’s arboricultural consultant’s report.

48. Appendix E: Representation from neighbour.

49. Appendix F: Response to landowner’s objection by Council’s arboricultural consultant.

50. Appendix G: Report by Inspecting Officer of the Government Office for the South East.

BACKGROUND PAPERS

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

Contact Point : Wayne Stewart F 823559.

A ASHCROFT

Head of Planning Services