PAPER A
Purpose
: For Decision
Committee
: REGULATORY APPEALS COMMITTEE
Date
: 19 MAY 2003
Title
: COBURG COURT AND
COCKERELL RISE, VICTORIA GROVE, EAST COWES -
TREE PRESERVATION ORDER NO. 24, 2002
DETAILS
OF THE ORDER
2. A TPO was made on 23rd September 2002. An application has been received to remove 4 of the trees. If the Order is to be confirmed this can be done to take immediate effect. Although normally Orders are confirmed within 6 months of being made, it is still possible to confirm them after that time has elapsed, although any provisional protection afforded by the order will have lapsed. In this case the trees are still protected by Planning Conditions TCP17910 at present. The delay in this case was as a result of the complex negotiations which have been undertaken.
LOCATION
AND SITE CHARACTERISTICS
3.
The trees are along Victoria Grove, and form part of an avenue of holm
oaks, which is a very significant part of the East Cowes landscape.
Factual
4.
An application (including a copy of the engineer's report) to remove 3
of the trees now protected by TPO / 2002 / 24, and several other smaller
younger trees at the western end of Coburg Court, was received on 6th June
2002, on the grounds of subsidence damage to the building. The trees were at
that time protected under planning conditions TCP17910 but not by a TPO.
5.
Consent was refused to remove the 3 large mature holm oaks, because the
Tree & Landscape Officer did not believe that evidence had been provided to
show that the trees were the main factor in the subsidence - in the engineer's
report, a leaking drain was considered to be the main cause of the damage.
However consent was granted to remove the young holm oaks growing below the
mature holm oaks.
6.
The trees form part of an avenue, probably planted in the 19th century,
and which is still almost unbroken outside Acorn Gardens. The holm oaks at
Acorn Gardens were protected by a Tree Preservation Order in 1993 (reference
TPO / 1993 / 39), but at the time of the application the trees at Coburg Court
were only protected by a condition attached to planning permission reference
TCP / 17910. Central government guidance is clear that planning conditions
should not be used for long-term protection of trees, when Tree Preservation
Orders are expressly designed for that purpose. Better and more easily enforced
protection is afforded by a TPO.
7.
An Order was therefore made on 23rd September 2002 to protect 10 trees
alongside Victoria Grove: 5 holm oaks at Coburg Court and 4 holm oaks at
Cockerell Rise, which partially continue the avenue to the west; and an oak in
the grounds of Cockerell Rise.
8.
The grounds for making the Order were: 'The trees are of high present
and future amenity value and are visible from Victoria Grove and York Avenue.
They are also important as a wildlife habitat, especially for birds and
potentially for squirrels.' The order can still be confirmed and will take
immediate effect if so. The trees are still protected by Planning Conditions TCP / 17910 at present.
Further
applications to remove trees
9.
Further letters were received both before and after the Order was made,
through which the loss adjuster and consultants appointed by them continued to
argue in favour of removal of the trees:
·
1 letter from the original applicant, dated 29th August 2002, and
including a letter from a tree consultant, dated 15th July 2002;
·
2 letters from the loss adjuster, dated 10th October 2002 and 29th
October 2002;
·
1 letter from the engineer, dated 24th January 2003.
10.
The letter from the tree consultant did not provide any additional
information or reasoned argument to explain their belief that the trees should
be removed, and consent was again refused on 4th September 2002. Consent to
remove the younger trees was confirmed.
11.
The letters from the loss adjuster similarly did not provide any
further evidence or adequate reasoning for removing the trees. The letter dated
10th October stated
' ...
partial construction is now inevitable. This means that the Buildings Insurers
of Coburg Court will face substantial increases in costs.... if you were to
reconsider this matter and consent to the removal of all of the trees, this may
well impact upon the replacement foundation depth for the reconstructed part of
the structure and thus there is still an opportunity to apply common sense and
reduce repair costs. If the trees remain then any foundation scheme must be
designed to allow for the mature height of the trees, thus increasing costs
even further.'
11. The
Tree and Landscape Officer’s reply dated 24th October 2002 pointed out that '...
since, whatever the cause of the damage, the foundations will be underpinned, I
remain to be convinced that it will be necessary to remove the 3 mature holm
oaks.' The letter also referred again to the consent to remove younger
trees: 'The holm oaks protected by
the TPO are mature trees and I would not expect their water uptake to increase
markedly in future years; while the other holm oaks, which could be removed
under the consent already granted, are younger trees and I would expect them to
increase their water uptake as they grow. My consent was therefore in line with
the advice given by BRE Digest 298 (April 1999) "Low-rise building
foundations: the influence of trees in clay soils".'.
12. The reply
from the loss adjuster dated 29th October 2002 stated '... If a new building
was to be constructed on this site, without any trees to consider, then
excavations to the existing foundation depth would be adequate. Therefore,
without trees, as the foundation would be no deeper, there can be no
justification to underpin. Therefore, the nuisance trees must be removed to
avoid unnecessary expenditure.'
13. The
reply dated 7th November 2002 stated '... the trees are there, and they were
there when the building was built. The building regulations at the time might
have been complied with, but if building regulations current now would require
deeper foundations, then I do not see why these should not be provided now (in
the form of underpinning), just as they would be for a new building.'
14. The
engineer's letter dated 24th January 2003 again requests consent to remove 4
trees, T1 - T4, and states ' ... The opening of cracks in late Summer/Autumn
2002 has been followed by an initial closing of cracks which appears to be
accelerating with the increased wet weather. This behaviour is highly
characteristic of damage caused by shrinkage of clay subsoil, and while I do
not discount the contribution of other factors, I am now of the opinion that
the Holm Oak trees on the roadside, Tree Nos. T1 to T4 on the plan accompanying
TPO No.24 2002, opposite this damage have played a significant role in causing
this damage, and that as the trees remain they will contribute to significant
worsening of this damage in the longer term, in terms of its extent and
magnitude....'
15. Unfortunately
the letter was not accompanied by a revised report including the latest figures
such as the monitoring of the cracks over the time since the last report, so it
is not possible to follow the evidence or reasoning which has led to this
belief, though certainly the cracks are much wider than they were at the time
of the initial report and application.
16. In
any case, as repairs to the foundations will be necessary, it is still arguable
that they should include deepening (underpinning) which would allow the trees
to remain. In addition, no advantage has been taken of the consent to remove
the younger trees, which would have provided an opportunity to monitor any
difference following their removal.
17. If
the Order is confirmed, it would still be open to the owners or their agents to
apply for removal of the trees again in the future, and if clear evidence and
reasoning for removal were provided, consent could still be granted at any
point in the future.
FURTHER
DEVELOPMENTS AFTER 28TH FEBRUARY 2003
18. Further desktop studies taking into
account local knowledge have revealed that:
·
The geological map of the Isle of Wight indicates underlying soils to
this site are plateau gravels, which is not in line with the information from
boreholes & trial holes;
·
Historical 19th Ordnance Survey maps indicate the
site was within old gravel pit extractions. This would suggest soils are
imported fill materials.
FURTHER REPORT FROM CONSULTING ENGINEERS TARI WILLIS
19. In
line with the Committee’s resolution on 11 April, a report was commissioned by
the Council from Tari Willis Associates, consulting civil and structural
engineers. The report is attached. This report was received on 2 May 2003.
20. The Tari
Willis report considered the evidence provided by the Loss Adjusters and by
Prichard Wilmott, consulting engineers. Tari Willis also undertook their own
site inspection.
21. Tari
Willis agree with Prichard Wilmott that the original cause of the subsidence
was drain failure. However they go on to state “The trees with TPOs, in our
opinion, are not the main cause of the building damage”. This contrasts
with the assertion from Prichard Wilmott, for the objector, that “I am in no
doubt that it is these trees which have contributed significantly to the severe
damage to Coburg Court…”. Tari Willis counter this statement with their
observation that “Nothing has happened in other areas outside of drain
failure influence so there is no reason why the damage should spread”.
22. They recommend that all the smaller
(unprotected) trees be removed, but the protected trees should remain, although
underpinning will still be required to prevent heave. They further comment that
the only way to stabilise the building will be to underpin, regardless of
whether the trees are removed or not.
They even comment “Remove the preserved trees and a completely new
regime will be introduced that may eventually lead to further building damage
due to heave”.
23. Tari Willis are robust in their assertions, and do not make any suggestion that further investigation or research is needed to substantiate their recommendations, which are unambiguous.
Committee History
24. This TPO was
originally considered at the 28th February 2003 committee meeting
and a decision was deferred pending a site visit, and further engineering and
legal advice. A Committee site visit was made on 24 April.
COUNCIL
POLICY
25.
None applicable.
FORMAL
CONSULTATION
26. Fire/Police
None applicable.
Advice and
support has been received informally from Building Control officers in this
matter.
Parish and
Town Councils
East
Cowes Town Council have received copies of correspondence in this matter,
starting from the response to the application to remove trees sent on 4
September 2002.
Local Member
Cllr Mrs Miller received copies of correspondence in this
matter, starting from the response to the application to remove trees sent on 4
September 2002.
THIRD
PARTY REPRESENTATIONS
27. Objectors
Objections have been received from:
·
Cunningham & Lindsey Project Management Services
(10.10.02.)
Other correspondence concerning the
matter has been received from other parties, as included in the background
documents, but the above letter is the one which comprises a formal objection
to the TPO.
28.
Supporters
None.
FINANCIAL
IMPLICATIONS
29.
As with any TPO, if the Council withholds consent for
works as a result of which damage to property is subsequently caused,
compensation may be payable. In this case, the sum involved would be
considerable and the objectors have made it very clear that they would seek to
reclaim it. See Legal Implications below. There is no allocated budget to pay
for any such compensation.
LEGAL
IMPLICATIONS
30.
The statutory regime is contained within the 1990 Town
and Country Planning Act. In considering whether to grant consent, advice from
the Secretary of State is that members should assess the amenity of the tree(s)
and the likely impact of the proposal
on the amenity of the area, and in the light of that assessment consider the
proposal is justified in the light of the reasons put forward to support it.
31.
Relevant factors will include; whether the tree(s) are
in a conservation area; whether the preservation is desirable to preserve the
natural beauty of the countryside; the extent of loss or damage likely if
consent is refused (including the cost of compensation).
32.
It is not a requirement to consider the unitary
development plan.
33.
When considering whether to confirm a tree
preservation order the criteria are the same as for originally making it. The criteria are set out at Section 198 of
the 1990 Act as Follows “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”. In
addition, the Committee must consider any objections.
34.
Insofar as the recommendations impact upon individual
human rights under Article and Protocol 1 of the European Convention on Human
Rights, this is a proportionate interference in order to secure a legitimate
objective of protecting the rights of others, the protection of health or in
accordance with the general interest.
35.
OPTION 1 Grant consent to remove T1 - T4, and confirm TPO / 2002 / 24
with modifications to exclude T1 - T3, but with a replacement holm oak tree for
T4 to be planted between T4 & T5.
36. OPTION 2 (RECOMMENDED)
Refuse
consent to remove T1 - T4, and confirm TPO / 2002 / 24 without modifications.
If the order is confirmed without modifications, it will ensure the continued
existence of the trees for the immediate future.
37.
Two expert reports are in conflict, and it is necessary to evaluate the
evidence and assess the merit of the objectors’ case, against the evidence of
the engineer appointed by the Council. The prime concern of the objector
appears to be financial, and they have made little or no reference to conserving
the amenity or historic value of the trees and the area in which they are
growing. They have, however made alternative suggestions for planting trees in
the vicinity. The report by Tari Willis (for the Council) is less comprehensive
than the report by Prichard Wilmott (for the objector), but has unambiguous
conclusions, which clearly support the view that the protected trees are not
responsible for the damage, and indeed may be preventing further damage.
38. If consent is granted to remove 4 trees, and the order is confirmed with modifications (OPTION 1), it will set a precedent of allowing financial considerations to come before landscape or environmental considerations. This has not been the Council’s normal practice in the past. However, the scale of the damage at the site, and the costs that may be incurred by the landowners, are higher than is normally the case in TPO decisions. The objector has clearly indicated that they intend to claim compensation if they can. Members must consider the evidence and evaluate to what extent the trees really are the cause of the damage, and furthermore, whether the risk of incurring a subsequent claim for compensation is sufficient to outweigh the environmental concerns.
RECOMMENDATIONS
|
|
39. OPTION 2 |
|
|
1.
Letter
from loss adjusters Cunningham &
Lindsey Project Management Services 10 October 2002.
2.
Letter
from loss adjusters Cunningham & Lindsey Project Management Services 7 April 2003.
3.
Tari
Willis Report 2 May 2003.
BACKGROUND
PAPERS
1.
Planning permission for Coburg Court reference TCP / 17910.
2.
Tree Preservation Order TPO / 1993 / 39.
3.
BRE Digest 298 (April 1999) "Low-rise building
foundations: the influence of trees in clay soils".
4.
Application for works to trees at Coburg Court received 6th
June 2002 [including copy of engineer's report reference 12443/D/001/R/RTW/WW -
see 12 below].
5.
Letter refusing consent to remove 3 mature holm oaks at
Coburg Court dated 30th July 2002.
6.
Application for works to trees at Coburg Court received 30th
August 2002, including letter from tree consultant dated 15th July 2002.
7.
Letter refusing consent to remove 3 mature holm oaks at
Coburg Court dated 4th September 2002.
8.
Tree Preservation Order TPO / 2002 / 24 made 23rd September
2002.
9.
Letter from loss adjuster, dated 10th October 2002, received
15th October 2002.
10.
Letter in reply to loss adjuster dated 24th October 2002.
11.
Letter from loss adjuster, dated 29th October 2002, received
31st October 2002.
12.
Letter in reply to loss adjuster dated 7th November 2002.
13.
Letter from engineer, dated 24th January 2003, received 28th
January 2003, and including copy of original report reference
12443/D/001/R/RTW/WW.
Further
background documents added since 28th February 2002:
1.
Copied extract of 1866 Ordnance Survey map.
2.
Copied extract of 1939 Ordnance Survey map without buildings
on site.
3.
Copied extract of 1939 Ordnance Survey map showing buildings
on site.
4.
Copied extract of 1976 British Geological Survey map.
Further background documents added
since 11 April 2002:
4.
Letter from loss adjusters Cunningham Lindsey, 7 April 2003
5.
Tari Willis Report 2 May 2003.
Contact Point : Matthew Chatfield, Senior Countryside Officer 823893
M
J A FISHER
Chief Executive Officer
and Strategic Director Of Environment Services
