PURPOSE/REASON

1. This report requires the Committee to determine whether or not to confirm TPO/2003/27.

DETAILS OF THE ORDER

27). The TPO plan is shown at Appendix A.

3. A letter of objection has been received from the landowner. This is shown at Appendix C.

LOCATION AND SITE CHARACTERISTICS

4. The site is a caravan park located on the East Cowes seafront.

RELEVANT HISTORY - FACTUAL

5. There has been a history of neighbour complaints concerning the landscaping of this site. Although there have been several site visits over a number of years by officers in response to complaints and in connection with the TPOs on the site, no evidence of illegal works has been detected and no further action has been taken.

COMMITTEE HISTORY

6. On 7^th February 2001 a TPO was requested for the trees on this site by a local councillor and members of the public. Isle of Wight Council, Waverley Caravan Park, St Thomas Road, East Cowes TPO 2/2001 (TPO/2001/2) was made on 12^th February 2001, protecting 18 x individual trees, 1 x area and 1 x group of three oak trees. The reasons for making the TPO were that:

“the trees are of high present and future public amenity value and are visible from East Cowes esplanade, Cambridge Road, St. Thomas’ Road, Old Road and beyond the River Medina from West Cowes. They are also important as a wildlife habitat particularly for birds and red squirrels”.

The TPO was considered by Regulatory Appeals Committee on 27^th July 2001 and it was resolved that “the Tree Preservation Order No.2, 2001 be not confirmed and a new Order be made”. The reason for this decision was:

“The Committee was advised that a tree preservation order was made on 12 February 2001 which covered 18 individual trees, and a group of 3 trees, all within an area. A revised list of trees to be protected was then agreed on site with the owners, correcting the mistakes that had occurred because the accurate positions and the conditions of the trees could not have been precisely judged from outside the site. An objection by the owner was then received. Members were advised that although orders could be confirmed with modifications, new trees were unable to be added and therefore a new order would need to be made”.

7. On 5^th September 2001 a new TPO was made as a result of the Committee’s resolution of 27^th July 2001. Isle of Wight Council, Waverley Park Holiday Centre, St Thomas Road, East Cowes, Isle of Wight TPO 2A/2001 (TPO/2001/2A) was made on 5^th September 2001, protecting 15 x individual trees. The reasons for making the TPO were that:

The TPO was not confirmed without significant delay.

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 within 6 months.

FORMAL CONSULTATION

9. Fire – No consultation applicable

10. Police – No consultation applicable.

11. Relevant Council departments. Property Services, as neighbouring landowner, has been served with a copy of the TPO and Regulation 3 Notice.

12. Parish and Town Councils – East Cowes Town Council was copied the relevant documentation.

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

THIRD PARTY REPRESENTATIONS

14. Objectors - A letter of objection was received from the landowner. This is shown at Appendix C.

15. Supporters – There have not been any letters of support.

16. Representations - The arboricultural consultant appointed by the Council submitted an appraisal of the landowner’s objection, and this is shown at Appendix D.

FINANCIAL IMPLICATIONS

17. 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.

18. In addition, no claim will be valid

· For less than £500.00;

· When made more than 12 months after the decision.

19. 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

20. 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.”

21. 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).

22. 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.

23. 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

24. None applicable.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

25. 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

26. OPTION 1. Confirm TPO/2003/27 without modifications and revoke TPO/2001/2A.

27. OPTION 2. Confirm TPO/2003/27 with modifications and revoke TPO/2001/2A.

28. OPTION 3. Do not confirm TPO/2003/27 but revoke TPO/2001/2A.

EVALUATION

29. Appendices C and D detail the comment and counter comments made by the parties involved to date. Following the submission of these items, the IW Councils’ Tree Officer made a complete reassessment of the trees included in this Order during a site visit in the company of the landowner. The site visit was made on 11^th March 2004.

30. It is as well to review the primary considerations when Orders are being assessed. The legislative guidelines that provide the framework for Orders give no definition of ‘amenity’ but they do identify three areas that the Local Planning Authority should consider in the context of serving and confirming Orders. These are the visibility of the tree, its individual impact and its wider impact. A scoring system is used to assess the amenity value of trees. A tree must achieve a minimum score of 8 in order to qualify for protection under a TPO. The scoring system as employed on this site is shown at Appendix E.

31. Clearly, it is impractical for the Local Planning Authority to protect every tree of amenity value, and the service of Orders will also be affected by factors such as whether the trees are felt to be at risk and whether they are significant enough to merit protection as a safeguard against future changes of use or ownership of the land. The existence of neighbour concerns in itself is not a valid reason for the service of an Order unless the other qualifying factors are met.

32. Following re-evaluation using the scoring system, some of the trees proved to be worthy of protection, and others did not. Accordingly, the recommendation will be to modify the Order to exclude those trees which did not meet the minimum score.

33. Based on the tree officers assessment of all these aspects, the trees that should remain protected are as follows:

· T4, T6, T7 and T10 - These are mature oaks of a ‘parkland’ type.

· T8 and T11 - These are significant Monterey pines of substantial landscape impact.

· T17 and T18 - A sycamore and an ash which are highly visible from the Esplanade.

RECOMMENDATIONS

30. OPTION 2 – Confirm TPO 2003/27 with the following modifications:

· Grounds For Making TPO are revised to read ‘The trees are significant specimen trees of high present and future amenity value and make a significant visual contribution to the local landscape’.

· Trees T2, T13, T15, T16, T19, T20, T21 and T22 are deleted from the TPO.

· Group G1 is deleted from the TPO.

Also to revoke TPO/2001/2A.

APPENDICES ATTACHED

31. Appendix A: Plan from TPO/2003/27.

32. Appendix B: Council’s arboricultural consultant’s tree survey.

33. Appendix C: Letter of objection from landowner.

34. Appendix D: Appraisal of landowner’s objection by Council’s arboricultural consultant.

35. Appendix E: Amenity value scoring system.

BACKGROUND PAPERS

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

Contact Point : Wayne Stewart 823893