RELEVANT HISTORY - FACTUAL

6. On three occasions prior to the making of this TPO the site was visited by a Council officer. On all those occasions the officer concerned met with Mr. Jones, the landowner, and discussed his intentions for the site.

7. On 6 May 2003 the Countryside Manager, Matthew Chatfield, visited part of the site in the company of the landowner in connection with planning application TCP/23408B (see paragraph 25) and saw a small part of the eastern end of the site. He made limited comments on the site although he did mention that “the woodland has some landscape importance locally”. He did not recommend that a new TPO was made at that time.

8. On 4 March 2004 the Tree Officer, Wayne Stewart, visited the site and met the landowner in connection with TCP/23408C (see paragraph 26). Mr Stewart described the site as ‘not a very attractive plot’ and went on to say ‘there are no real issues as regards the removal of trees.’ He did not consider that a new TPO was necessary at that time.

9. The Ecology Officer, Dr Colin Pope, visited the site on 8 March 2004 and made the Council’s most thorough assessment of the locality prior to the making of this TPO. At the time Dr Pope reported ‘the wooded valley forms a significant local landscape feature as well as a valuable wildlife corridor’ and ‘I am concerned that on-going work here is likely to adversely affect the site’. Dr Pope also later wrote a more detailed memo in support of the TPO on 16 December 2004 (Appendix B).

10. On 2 July 2004 a letter was received by the Isle of Wight Council’s Countryside Services from Hugh Milner of the Forestry Commission. This letter is shown at Appendix C. In his letter Mr. Milner requests that the Council place a Tree Preservation Order upon the remaining trees in the urban woodland as he believes there is a “real potential for loss of the woodland…[which is of] amenity value”. On 20 August 2004 further correspondence was received from Mr. Milner in which he again requested that the Council make a TPO on the woodland. He believes “the wood will be lost as an amenity to this area of Shanklin unless a TPO is placed”. It is unusual for the Forestry Commission to intervene directly in TPO matters, and very rare for a Forestry Commission officer to directly request a TPO. This request was therefore given serious consideration, but at that time the Countryside Manager and the Tree Officer agreed that the risk to the trees was not sufficient to make a new TPO. However, both still had concerns about the site and it was agreed that the site should be monitored and the progress of the outstanding appeal in respect of TCP/23408C should be noted, as future events might make a TPO necessary.

11. On 12 August 2004 Wayne Stewart made a comment to be submitted to the ongoing planning appeal, which read “…there are concerns as to the long term management of the site from a wildlife and ecological viewpoint, and both the Forestry Commission and local residents have requested that a woodland TPO be served on the entire site. I was awaiting the result of [the planning application] before taking a decision.”

12. On 29 October 2004 the landowner phoned Countryside Services to confirm that his planning appeal was withdrawn and, as the site was not subject of any planning permission, he said he was ‘able to clear the site’. As a result of this information the Countryside Manager instructed the Tree Officer to prepare a TPO.

13. On 4 November 2004 the landowner phoned Countryside Services to request a site visit. He wanted someone to witness him marking the trees that he intended to fell. This is not normally a service provided by the Council, and Mr. Jones was informed that no officer could necessarily visit the site in these circumstances. On 6 November 2004 the landowner wrote to Countryside Services giving notice that he intended to “clear a number of trees from the… area”. This letter is shown at Appendix D.

14. On 16 November 2004 TPO/2004/24 was made and served. The Countryside Manager and TPO Review Assistant served the new TPO on the landowner and explained the Order and its implications to him. The Regulation 3 Notice invited consultees to make amendments to the boundary of the woodland and a map was enclosed to be used for that purpose.

15. On 25 November 2004 a letter was received from the landowner addressed to the TPO Review Assistant. This is shown at Appendix E. The landowner raised many points to do with the stewardship of the trees, liability issues, the Council’s “hidden agenda” and planning matters. He said ‘My more urgent concern is that your “hidden agenda” for our land is being directed by both Councilors and objectors with the willing help of you and the officers of your department’. He also suggested amendments to the boundary of the woodland. On 25 November 2004 a reply was sent to the landowner addressing the points raised in his letter of 25 November 2004 and which invited him to make further representations.

16. On 16 December 2004 a second letter was received from the landowner. This is shown at Appendix F. On 20 December 2004 a third letter was received from the landowner, accompanied by a report from a tree consultant. The letter is shown at Appendix G and report is shown at Appendix H. (For brevity, elements of that report which are already available to the committee are excluded). In his letter the landowner states that he employed the services of a solicitor and tree consultant. The report of the tree consultant provides the objections to the TPO.

17. The landowner’s tree consultant made objections about the validity of the TPO which are summarised here, and can be seen in full in Appendix H.

a. The Authority has not fully followed procedures during the making and serving of the TPO.

b. Domestic garden should not be classified as woodland.

c. The invitation to make boundary amendments is misleading.

d. The landowner’s letters of 25 November 2004 and 16 December 2004 should be admitted as legitimate representations.

e. The boundary shown at Appendix 9 of the tree consultant’s report should be used to revise the boundary of the woodland protected by TPO/2004/24.

These points are considered below.

18. In his objection the landowner had complained that the letter of 25 November 2004 was misleading in that it suggested that an amendment of the boundary would be undertaken after the TPO was confirmed, and that suggestions for boundary revisions would not be properly considered. Although neither of these were the intention of the Council, the letter of 25 November 2004 was capable of misinterpretation. Therefore on 22 December 2004 the Countryside Manager wrote to the landowner to clarify the procedure, and indicate that all representations would be considered, and that the boundary of the Order would be reassessed before any confirmation. Furthermore the Countryside Manager allowed the landowner an additional three weeks to make comments, to ensure that he was not disadvantaged by any confusion, and that he had a chance to make further representations. No further representations were received from the landowner during this extended period.

19. On 17 January 2005 the Countryside Manager and TPO Review Assistant visited the site to survey the woodland and make any necessary modifications before preparing the report for the Committee. Twelve different properties were visited, and all other affected properties were examined visually from adjacent land. Despite his concerns about the lack of a survey, Mr Jones was the only landowner who refused access to the Council. However, the officers concerned were able to enter the land without the consent of the owner under the powers given by the Town and Country Planning Act 1990. All representations which suggested boundary changes were examined in detail, and a revised, more accurate woodland area was plotted which excluded a number of non-woodland areas provisionally protected by the Order. Evidence was found of fresh activity in the badger sett, and cones recently eaten by squirrels. Outside of the woodland area a number of individual trees were identified which were worthy of preservation and which fell within the area provisionally protected by the Order. A modified plan was drawn up. This is shown at Appendix J.

COMMITTEE HISTORY

20. There is existing, limited, tree protection on the site. The County of the Isle of Wight (Urban District of Sandown-Shanklin) Tree Preservation Order 1949 (TPO/1949/3) was made on 11 November 1949 and confirmed on 14 April 1950. The following groups protect certain species of tree within parts of the area now covered by the present TPO:

a. G82 - willow, beech, ash and elm (Tordale, Victoria Avenue, Shanklin);

b. G85 - conifers, elms and chestnuts (Tile House, Victoria Avenue, Shanklin)

c. G89 – conifers, ash and oak (Westhill, Westhill Lane, Shanklin).

An extract from TPO/1949/3 showing these groups is at Appendix K.

21. South Wight Borough Council Trees on Land at Fairy Court, Shanklin, Isle of Wight Tree Preservation Order 1985 (TPO/1985/14) was made on 9 August 1985. Individual trees T22 – T30 are within the area now covered by the present TPO.

An extract from TPO/1999/10 is shown at Appendix L.

22. The Isle of Wight Council Westhill Manor Drive, Westhill Road, Shanklin Tree Preservation Order No. 10 1999 (TPO/1999/10) was made on 8 June 1999 and confirmed on 9 November 1999. Trees T1 – T4 are within the area now covered by the present TPO.

An extract from TPO/1985/14 is shown at Appendix M.

23. A planning application was made for a proposed double garage at 26 Victoria Avenue, Shanklin. The application was approved subject to conditions on 8 March 2003. (TCP/23408/P/56/00)

24. A planning application was made for a proposed front veranda; single storey extension to form a sun room at 26 Victoria Avenue, Shanklin. The application was approved subject to conditions on 26 June 2002. (TCP/23408A/P/842/02)

25. A planning application was made for a detached house; formation of a vehicular access and driveway for land adjacent 26, Victoria Avenue, Shanklin. The application was withdrawn on 28 April 2003. (TCP/23408B/P/1723/02)

26. A planning application was made for a detached house; formation of a vehicular access and driveway for land at Banky Butts adjacent to Woodland House, 28, Victoria Avenue, Shanklin. The applicant appealed against non-determination and withdrew his appeal on 14 October 2004. (TCP/23408C/P/271/04). Whilst the appeal was pending the Development Control Committee made a site visit to Banky Butts on 3 September 2004. They resolved that they would have refused planning permission for the proposed house had they been determining the application. One of the recorded concerns of Members was the loss of trees on the site.

COUNCIL POLICY

27. 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

28. Fire – No consultation applicable

29. Police – No consultation applicable.

30. Relevant Council departments. – An Area Team Leader and the Appeals Officer of Planning Services have been copied the relevant documents in connection with this matter.

31. Parish and Town Councils - Shanklin Town Council was copied the relevant documentation.

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

THIRD PARTY REPRESENTATIONS

33. Objectors - The landowner has made several representations. Two letters are shown at Appendix F and G. The landowner’s representation of 20th December 2004 was accompanied by a report from the landowner’s tree consultant. This is shown at Appendix H.

34. Supporters – There have been two letters of support received and also a petition. These in total represent 22 local residents.

35. Representations – There have been five representations received which neither supported nor objected to the TPO, four of which have suggested amendments to the woodland boundary (besides that received from the landowner).

FINANCIAL IMPLICATIONS

36. 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.

37. In addition, no claim will be valid

· For less than £500.00;

· When made more than 12 months after the decision.

38. 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

39. 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.”

40. 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).

41. 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.

42. 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

43. None applicable.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

44. 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 present and future amenity to the general public.

OPTIONS

45. OPTION 1. Confirm TPO/2004/24 without modifications.

46. OPTION 2. Confirm TPO/2004/24 with modifications (recommended).

47. OPTION 3. Do not confirm TPO/2004/24.

EVALUATION

48. Consideration of supportive representations

Shanklin Town Council considered the Order and resolved that “Members wholeheartedly support this order”. A resident of neighbouring Woodland House, wrote in support of the Order. The residents of Woodland House, including the previous supporter, wrote collectively that they were ‘in full agreement with the Order’. The letter bears nine signatures. A petition was submitted by a further resident of Victoria Avenue which indicated support for the TPO. The petition bore 21 signatures, all from local addresses, of which 9 (from Woodland House) had been previously submitted. These representations show that there is wide support from local people for the preservation of these trees.

Dr Pope’s memorandum in support of the Order gave detailed ecological analysis of the importance of the site (Appendix B). He draws particular attention to the importance of the woodland as a corridor for red squirrels, and its particular importance in the Shanklin area. He points out that although the woodland might provide relatively little in the way of food, it is the structure of the woodland which provides ‘an essential and safe aerial routeway’. Dr Pope also comments on the suggestion that the woodland is in poor condition and in need of thinning and management. He agrees with the suggestion but suggests that this process would be best carried out ‘over tens of years’, and says that the objector’s actions ‘have not inspired confidence’ in his intentions to manage the site sympathetically.

Mr Milner of the Forestry Commission did not submit any further representations.

49. Consideration of the objections

a) The Authority has not fully followed procedures during the making and serving of the TPO. The objector’s consultant acknowledges that ‘the TPO appears to have been correctly drafted’. He goes on to suggest that the initial order placed should have been an Area rather than a Woodland Order. It is true that the use of Area Orders is normal in cases where a preliminary Order is to be made, with the intention of making a more accurate Order by the confirmation stage. However, there is nothing in statute or guidelines to suggest that the use of a Woodland Order in such a case would be wrong, and as there was no doubt that the area concerned included a significant amount of woodland, this was the method chosen. There was no disadvantage to the objector as a result of using this type of Order, as the protection afforded by an Area and a Woodland Order in these circumstances is essentially the same. The consultant makes a further point and suggests that ‘the site visits carried out by the Authority before this TPO was made clearly failed to gather sufficient information to draw up an accurate Woodland TPO’. This is correct, but this is not a failure to follow procedures. The deficiency was recognized at the time the Order was made, and this was the reason for a thorough survey being undertaken before confirmation. This procedure is not unusual, except insofar as it is more common for Area Orders to be used for this purpose, as discussed above.

b) Domestic garden should not be classified as woodland. The Council accepts this objection, but it was never proposed that areas identified as domestic garden would be included once a survey was made. As has been the intention since the Order was made, all areas identified as domestic garden during the survey of the area have been removed from the modified Woodland Order.

c) The invitation to make boundary amendments is misleading. The letter of 25 November 2005 was capable of misinterpretation, and therefore on 22 December 2005 the Countryside Manager wrote to the landowner to clarify the procedure, and indicate that all representations would be considered, and that the boundary of the Order would be reassessed before any confirmation. The Countryside Manager allowed the landowner an additional three weeks to make comments, to ensure that he was not disadvantaged by any confusion, and that he had a chance to make further representations. No further representations were received from the landowner during this extended period.

d) The landowner’s letters of 25 November 2004 and 16 December 2004 should be admitted as legitimate representations. All representations, including those of the landowner, were carefully considered. The report of the consultant provided the objections to the TPO, and all of these have been addressed, and, where necessary, action taken. The other points which the landowner makes in his communications are not directly connected with the TPO.

e) The boundary shown at Appendix 9 of the tree consultant’s report should be used to revise the boundary of the woodland protected by TPO/2004/24. The plan shown in Appendix 9 of the consultant’s report is unclear, as it has no key. A great many individual trees are shown on the plan in different styles and it is unclear whether or not these are proposed for protection; or indeed whether they are representative or simply for illustrative purposes. The tree consultant refers in his text to a line on the map. It is assumed that it is the solid grey line which appears on the plan and presumably represents the proposed line for protection. The Council’s survey of the woodland has proposed a new extent of the Woodland Order which is very similar to this line. It seems likely that the proposed modified Order will accommodate the majority of the changes suggested by the consultant.

50. Conclusion

This is a woodland of landscape and ecological importance that is at real risk from work which would have a significant impact on the amenity of the area. There has been unprecedented support for this TPO, not just from local people and Shanklin Town Council, but also from the Forestry Commission and other Council officers. Only one of the affected landowners has objected to the Order. The objections of the objector’s consultant have been considered and appropriate amendments have been made. The modifications to the Order are similar to those suggested by the objector and those other persons who suggested boundary changes. The objector has not demonstrated that he has been disadvantaged by any of the procedural matters which he raised, and none of them are sufficient reason not to confirm the Order. The modified Order balances the aspiration to conserve the present and future public amenity of the woodland with the rights of the landowners. The recommendation for confirmation of the modified Order, and thus the preservation of the trees, is considered on the balance of this report to be expedient in the interests of the amenity of the area.

RECOMMENDATIONS

OPTION 2. Confirm TPO/2004/24 with modifications as shown in Appendix J.

APPENDICES ATTACHED

Appendix A: Original unmodified plan from TPO/2004/24.

Appendix B: Memo from Dr Pope dated 16 December 2004.

Appendix C: Letter from Forestry Commission.

Appendix D: Letter from landowner dated 6 November 2004.

Appendix E: Letter from landowner dated 22 November 2004.

Appendix F: Letter from landowner dated 12 December 2004.

Appendix G: Letter from landowner dated 16 December 2004.

Appendix H: Landowner’s tree consultant’s report dated 13 December 2004.

Appendix J: Plan showing proposed modifications to TPO/2004/24.