PAPER B

 

                                                                                                             Purpose : For Decision

 

Committee :   REGULATORY APPEALS COMMITTEE

 

Date :              19 MAY 2003

 

Title :               ST ANNE'S, AUGUSTA ROAD, RYDE

                        TREE PRESERVATION ORDER NO. 26, 2002

 

REPORT OF THE CHIEF EXECUTIVE OFFICER AND STRATEGIC DIRECTOR OF ENVIRONMENT SERVICES

 

 

PURPOSE

 

To determine whether or not to confirm TPO2002/26.

 

DETAILS OF THE APPLICATION/ORDER

 

The trees are 2 common limes and a holm oak. The limes are presently protected by  TPO1952/1 and the holm oak by the Conservation Area.

 

To clarify and extend the protection afforded by TPO1952/1 a further TPO, TPO2002/26 was made on 8th October 2002. An objection has been made to the Order.

 

LOCATION AND SITE CHARACTERISTICS

 

St Anne’s is within the Ryde Conservation Area, and consent is therefore needed to remove or carry out works to any tree bigger than 75mm in diameter (measured at 1.5 m above ground level).

 

The southern half of the site, including most of the garden, is also within G4 of The County of The Isle of Wight (Borough of Ryde) Tree Preservation Order, 1952, which protects "deciduous" trees (reference TPO/1952/1). However neither the number of trees protected, nor their positions, were given on the plan or schedule for Group 4, so this group was in effect an area.

 

RELEVANT HISTORY

 

Factual

An application was received from the owner to remove several trees. Consent was granted in December 2001 to remove a lime tree growing less than 2 m from the house because of possible damage; and in January 2002 to remove a lime growing further from the house, because it was suppressed by another lime growing nearby; 3 dead or dangerous elms were also to be removed. Following a query a further site visit was made and consent was granted in January 2003 to remove a further lime tree that had been pollarded in the past and grown since into a poor shape; and to remove a false acacia because of decay at the base.

 

Planning permission (reference TCP/24512) had been granted on 4th March 2003. This included building a new garage and access drive within the garden. The Tree & Landscape Officer was in the area on 12th July 2002 and visited the site to see what progress had been made, and was concerned to see that the boundary wall to the south of the new drive was being built in such a way that it had damaged the roots of a lime tree to the south of the drive. Builders on site were given a copy of a leaflet on "Trees on Building Sites" leaflet, and a letter was written to the owner on 15th July 2003 drawing attention to this. A further letter was sent on 10th September 2002 following a site visit on 20th August 2002 to check the state of the lime tree next to the rebuilt wall.

 

To ensure more specific protection than a group order, which was in effect an area order, for the remaining trees on site, a new Tree Preservation Order was made on 8th October 2003. The trees protected were the two remaining limes from the original line along the eastern boundary, plus a holm oak along the western boundary. The northern lime is the one potentially damaged during the rebuilding of the boundary wall, while the southern lime is a magnificent tree at the SE corner of the site. The holm oak, although given some protection by the Conservation Area, was not protected by the 1952 TPO, since that protected deciduous trees, and holm oaks are evergreen.

 

The grounds for making the Order were: 'The trees are of very high present and future amenity value and are visible from Augusta Road, which is a private road to which the public have access, from Ryde Pier, and from the sea including Ryde ferry.'

 

The landowner has appealed to the Government Office for the South East against refusal of consent to remove the two lime trees. An inspector is due to visit the site to determine this appeal, but has deferred the visit until after the decision of the Regulatory Appeals Committee.

 

Further communication

The Tree & Landscape Officer replied to the objection letter on 7th November 2002, refusing consent to remove the two lime trees; pointing out that the letter was the first indication she had had that the owner intended to rebuild the wall in its entirety, and that the trees are arguably as important a part of the local landscape as the boundary wall; that although it is to their client's credit that he wishes to rebuild it, if this is done it should be in such a way that it allows the trees to remain; and that the trees are visible from the sea and Ryde Pier, and that they are visible from Augusta Road itself.

 

Committee History

This case was put before the Regulatory Appeals Committee on 11 April 2003. The objector requested a site visit be undertaken. The decision was deferred pending a site visit. The site visit was undertaken on 24 April 2003.

 

COUNCIL POLICY

 

None applicable.

 

FORMAL CONSULTATION  

 

Fire

None applicable

 

Police

None applicable

 

Relevant Council Departments

The new TPO made on 8 October 2002 was copied to Legal Services, Land Charges, Ryde Help Centre, DC Conservation Officer and DC Commencements.

 

Parish and Town Councils

None applicable.

 

Local Member

The new TPO made on 8 October 2002 was copied to Cllr Mr Taylor.

 

THIRD PARTY REPRESENTATIONS

 

A letter was received from the owner's solicitor on 5th November 2002. The letter stated that

"two further lime trees ... are ... in line with the current eastern wall boundary. These need to be removed in order for the building of the wall to be completed. We would advise that Mr Kerr is simply replacing an existing wall that had become dangerous at his property. We understand that ... it is impossible to re-build the wall without them being removed. Even if the original wall had been left and not taken down, they would have created a danger and hazard to the public.

"It is our view that these trees cannot be seen from Ryde Pier and sea. The reason for this is because these trees are largely obscured by our client's property and Wellington Lodge and also is surrounded by woodland. The trees on this property have not been maintained for, at least, 50 years. Consequently, this is the reason why a problem has now arisen.

"We would also point out that in our client's title deeds there is a covenant that the trees must be a certain height and not interfere with the light to the surrounding properties. At the moment these trees breach that covenant."

 

Comments on objections - rebuilding of wall

The length of wall affected by the two lime trees is no longer a wall but a jumble of stones. The original wall would have been an attractive feature and it would enhance the local landscape if it were rebuilt, but not at the cost of losing the lime trees. Advice from the DC Building Conservation team was received which stated: “Stone walls constitute an important part of Ryde’s architectural history and so every effort should be made to retain them…[but] the conservation area is not defined by built structures alone, it is a balance of both the natural environment and the built environment…. I suggest considering a compromise. This could involve building the wall externally around both trees, a trait that is visible in the adjacent stone wall of the neighbouring property”.

 

Comments on objections - trees allegedly a danger and hazard

No evidence has been provided to suggest that the lime trees are dangerous.

 

Comments on objections - view of trees from Ryde Pier and sea

The trees can be seen from the sea and from the ferry, and contribute to the excellent view of the Island when arriving at Ryde. They can be seen both above the rooflines of buildings, and in the angle between the two buildings. There is no woodland at either St Anne's or Wellington Lodge. Although the area is well treed, the three trees covered by the Order are in the foreground of the view from the sea, rather than being lost in the background as implied.

 

Comments on objections - lack of maintenance

It is probably precisely the fact that the limes have not been "maintained" that has allowed them to become the magnificent trees they are now, rather than the pollarded stumps often seen when lime trees are regularly cut back. There is no need for such treatment here where the trees are well away from any buildings.

 

Comments on objections - covenant and loss of light

This covenant has been provided on 26 April 2003, and dates from 1884. There is no evidence that any person intends to enforce this covenant. A covenant is a private agreement between two or more parties, affecting land. In the unlikely event of this covenant being successfully enforced, it is possible that compensation might be claimed against the council. However, should this ever occur the landowner could then apply for consent to remove the trees, providing evidence of the successful covenant enforcement, and the Council could grant consent accordingly.

Since the trees are to the south of St Anne's, it is St Anne's itself, rather than any other properties, which might be most affected by loss of light due to the trees. As the nearest tree is over 20m from the house the loss of light will be minimal. No objections have been received to the TPO from owners or occupiers of any other properties. 

 

Letter received since 11 April

A further letter of objection was received from the owner on 23 April, giving further detail about the above points. It is included as an appendix.

 

None.

 

FINANCIAL IMPLICATIONS

 

It is clear that if the local authority refuse 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

 

            1          The natural or probable cause of the decision

2                    Within the contemplation of the authority at the time

3                    Quantifiable in money terms.

4                    Not too remote

 

In addition no claim will be valid

 

A   for less than £500.00

B   When made more than 12 months after the decision

 

 

 

 

 

LEGAL IMPLICATIONS

 

 

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.”

 

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).

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 road or footpath but this is not essential. In addition

 

1        The benefit may be past or future

2        Trees may be worthy of preservation for their beauty or contribution to

 the landscape, ie hiding an eyesore

3        Scarcity may enhance a trees value

 

The existing order was made on the 8th October 2002.  An appeal is pending against the refusal of consent to fell the two lime trees. The October order has lapsed is no longer in force and subsequently until the order is confirmed the trees are protected by a mixture of a 1952 order in relation to the Lime trees and by virtue of the conservation area in relation to the Holm Oak. Whilst an element of protection is afforded it is more desirable to protect by means of an up to date order.

 

There appears to be a covenant affecting the land. If the trees are in breach and the covenant is enforced  the landowner could claim any expense against the local authority but only if it occurs within 12 months of the refusal of consent to remove.

 

It is proper for the potential compensation to be considered by the committee as it reflects the true cost of preserving a tree.

 

 

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

 

 

None applicable

 

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

 

If the recommendation is followed it will directly impact on the rights of the landowner to use the land and therefore may interfere with his human rights under article 8 and article 1 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 high present and future amenity to the general public.

 

 

OPTIONS

 

OPTION 1: Confirm TPO/2002/26 without modifications. (recommended)

 

OPTION 2: Confirm TPO/2002/26 with modifications.

 

OPTION 3: Do not confirm TPO/2002/26

 

EVALUATION/RISK MANAGEMENT

 

The application concerns the fate of some trees and a wall. The wall is more or less derelict, but the trees are splendid specimens which contribute significantly to the environment of the area. The owner wishes to repair the wall, which is a laudable objective. It would be possible to repair the wall in a sympathetic manner without adversely affecting the trees.

 

The issue of the covenant does not appear to be directly relevant to the decision, as the owner is always at liberty to reapply for works should circumstances change.

 

RECOMMENDATIONS

 

OPTION 1: Confirm TPO/2002/26 without modifications.

 

APPENDICES ATTACHED

 

Letter received from Mr Kerr, landowner, 23 April 2003.

 

BACKGROUND PAPERS

 

1.      Plan and schedule from Tree Preservation Order TPO/1952/1, G4.

2.      Letters dated 18th December 2001, 3rd January 2002, and 25th January 2002, granting consent to remove 3 lime trees and 1 false acacia, and to prune 1 lime.

3.      Planning permission reference TCP / 24512 granted 4th March 2002.

4.      Letter dated 15th July 2002 drawing attention to damage to lime tree.

5.      Letter dated 10th September 2002 drawing attention to need to protect trees during building works.

6.      Copied extracts from Tree Preservation Order TPO/2002/26 made 8th October 2002.

7.      Letter from owner's solicitor, dated 1st November 2002, received 5th November 2002.

8.      Letter in reply to solicitor dated 7th November 2002.

9.      Letter from solicitor, dated 18th November 2002, received 20th November 2002.

10. Letter from solicitor dated 3rd December 2002, received 5th December 2002, and including copy of appeal to GOSE dated 3rd December 2002.

11. Letter from GOSE about appeal received 6th December 2002.

12. GOSE TPO appeal questionnaire dated 5th February 2003.

 

Contact Point : Matthew Chatfield, Senior Countryside Officer 823893