PAPER A
Committee : REGULATORY
APPEALS COMMITTEE
Title : TREE
PRESERVATION ORDER 2003/6 AT TIMBER, UNDERCLIFF DRIVE, VENTNOR
REPORT OF THE HEAD OF PLANNING SERVICES
PAPER A
Committee : REGULATORY
APPEALS COMMITTEE
Title : TREE
PRESERVATION ORDER 2003/6 AT TIMBER, UNDERCLIFF DRIVE, VENTNOR
1.
This report
requires the Committee to determine whether or not to confirm Tree Preservation
Order 2003/6.
DETAILS
OF THE APPLICATION/ORDER
LOCATION
AND SITE CHARACTERISTICS
3.
The property is a domestic dwelling house situated in
a large garden on the north side of Undercliff Drive. The garden backs onto and
includes a part of the inner cliff. The property is bordered on the east and
west by the gardens of other houses.
RELEVANT
HISTORY
4.
Factual
A chronology showing some of the relevant events is attached as Appendix C.
5.
Committee History
The Committee have been involved with this contentious property on several occasions. A chronology showing some of the relevant events is attached as Appendix C.
COUNCIL
POLICY
6.
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
7.
Fire
None
applicable.
None
applicable.
None applicable.
10.
Parish and Town Councils
Ventnor Town Council has been
copied the relevant documents in connection with this matter.
11.
Local Member
Cllr Mr Bartlett has been copied the relevant
documents in connection with this matter.
THIRD
PARTY REPRESENTATIONS
12.
Objectors
An objection was received on 15 May 2003 from
the landowner, Mrs Sidney Hall. This is attached as Appendix A.
13.
Supporters
A letter from Mr and Mrs PJ Wright was received on 13 May 2003 supporting the confirmation of the TPO. This is attached as Appendix B.
FINANCIAL
IMPLICATIONS
14.
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
In addition no claim will be valid
A for less than £500.00
B When made more than 12 months after
the decision
15.
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 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.
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
16.
None applicable.
17.
If the recommendation is followed, it will directly
impact on the rights of the landowner to use the land and therefore may
interfere with her 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.
18.
OPTION 1: Confirm
TPO/2003/6 without modifications. (recommended)
OPTION 2: Confirm
TPO/2003/6 with modifications.
OPTION 3: Do not
confirm TPO/2003/6
19.
Timber is a
property which has long proved contentious. Many people have expressed their
opinion both for and against protection of trees on the site. For example, when
TPO 2002/23 was due to be confirmed, it attracted 65 letters objecting to the
protection of the sycamore trees within the site; and by comparison in June
2001 when TPO2001/26 was due for confirmation, a petition of 88 signatures was
received effectively supporting the TPO, and stating that the TPO should go
further, and protect even more trees.
The Area Order TPO2003/6 was made in response to the Ombudsman’s recommendations of 19 March 2003. This was necessary to protect trees identified as unprotected.
Area orders are normally only used for temporary and emergency measures. However, in this case, it is recommended that the Area Order be confirmed to allow a longer period of protection than the normal six months allowed by a provisional order, albeit still as a temporary measure. However, it is not likely to be used as the permanent protection provision for the site in any case. A review of tree protection on the whole Timber site is underway, and it is likely that new Orders will be made which are more specific than an Area order. When this is complete, any Orders which are superceded will no longer be needed and can be revoked. However, whilst this work continues it is essential that the protection afforded by the existing Area order 2003/6 is maintained. It is recommended that it be confirmed at the present time to allow sufficient time to ensure the site is properly protected, and to ensure that there is in the meantime no doubt about which trees are protected and which are not. If it is no longer needed when the review of protection is completed, it can then be revoked.
Evaluation
of Objection
An objection was received on 15 May 2003 from the landowner, Mrs Sidney Hall. This is attached as Appendix A. Her objections have been assessed, and none have been judged to be of sufficient weight to prevent confirmation of the Order.
Mrs Hall numbers her objections 1 to 10, and these are each addressed below. The full text of each objection may be found in Appendix A.
Objection
1: “The LPA have not followed the procedural requirements of the
regulations”
This would be a valid objection if proven but as no details are given it cannot be evaluated.
Objection
2: “The procedure… was unfair”
This is not a valid objection. The grounds for this objection are that the TPO was requested by the local member and by members of the public. The objector questions the expertise of the local elected member to make an assessment of a tree’s amenity value. However, a request from an elected member, or a member of the public are normally acceptable reasons to consider the making of a TPO, and in this instance the TPO was also made in response to the report of the Local Government Ombudsman of 19 March 2003 which would in itself have been sufficient reason to consider the making of a TPO.
Objection
3: “[the majority of trees on the site] can not be seen from a public
place”
This is a partly valid objection if proven. It is true that some trees are not entirely visible from a public place at all times, however was well as the road, there is also a view from the sea, and the footpath V79 on the cliff top, especially in the winter months. It is therefore likely that a majority of trees on the site are indeed visible from a public place. If new TPOs are made identifying individual trees, it will be possible to consider the visibility of each individual at that point. Given that many trees are visible, and that this TPO is of a temporary nature, and does not identify individual trees, this objection is not considered to be of sufficient weight to justify non-confirmation of the Order.
Objection 4:”The LPA has not followed Government advice”
This may be a valid objection if proven. The objector asserts that the Council has not considered all advice and given proper consideration to making the Order. The objector provides no evidence to support this assertion. In fact, all due processes were followed. When more specific TPOs are made there will be an opportunity to consider the merit of trees which are protected individually. As this TPO is of a temporary nature, and does not identify individual trees, the objection is not considered to give grounds to justify non-confirmation of the Order.
Objection
5: “The use of Area Orders is not encouraged by the Government”
This is not a valid objection. Whilst government guidance does suggest how Area orders should be made, it is still quite legal and proper to make and confirm Area orders such as this one. In addition, this particular Order is intended to be a temporary measure and as such is in accordance with the guidance.
Objection
6: “Timber should not have been singled out”
This is not a valid objection. A TPO is made in response to a perceived or potential threat to trees. In many areas of the Undercliff trees are unprotected or inadequately protected, but are under no especial threat. In such areas, it would not normally be necessary to make a TPO. By contrast, at Timber, there is some evidence that the landowner wishes to remove some protected trees from the land. For example, in the period from 1 April 2003 to 16 July 2003, the following applications and appeals were received from the objector, all of which indicate her intention to remove or do works to a protected tree or trees.
· New appeal received by GOSE in week of 7.07.03 – awaiting details |
Objection 7: “it is inappropriate to make a TPO in respect of trees which are dead, dying or dangerous”
This may be a valid objection if proven. However, in these circumstances it is not practical to make an Area TPO which excludes individuals on these grounds, and in any case there would be no legal impediment preventing the landowner from undertaking works to these trees if she does indeed believe that they are dead dying or dangerous and can prove it. The DETR guidance states in reference to Area Orders ‘It is possible that trees will be included in the TPO which do not merit protection’. If new TPOs are made identifying individual trees, it will be possible to consider the health of each individual at that point. Given that many trees certainly are in good health, and that this TPO is of a temporary nature, and does not identify individual trees, this objection is not considered to be of sufficient weight to justify non-confirmation of the Order.
Objection
8: “Over protection of the site”
This is not a valid objection. The report of the Ombudsman indicated that there were gaps in the protection afforded the site, and directed the Council to take urgent measures to remedy this. This Order is an initial response to this direction.
Objection 9: “The Local Government Ombudsman required all TPOs at Timber to be ‘accurate and enforceable’”
This is not a valid objection. The objector asserts that TPO2003/6 is not accurate and enforceable, and presumably the basis for this assertion is her other objections, which are individually addressed above.
Objection 10: a part of the area has been designated as SSSI on 8 May 2003.
This is not a valid objection. The Council’s consent is not required for any work to a protected tree carried out in compliance with a statutory obligation. This would include any works required by English Nature in connection with a SSSI. The objector implies that she is now required to manage the site as calcareous grassland. The notification of an SSSI does not in itself place any such requirement on a landowner, although English Nature may, if they so wish, require landowners to manage the site in certain ways. So far English Nature has placed no such obligation on the landowner at Timber and so there is no requirement for her to do any works to the trees. Furthermore, it is far from clear that English Nature would require any such works on this site in the future. In the SSSI notification, operations are listed which cannot be carried out without consent of English Nature, and these include the following:
“Destruction,
displacement, removal or cutting of any plant or plant remains, including
tree[s]…
The
introduction of tree and/or woodland management and alterations to tree and/or
woodland management (including planting, felling, pruning and tree surgery…”
The EN statement also includes the following:
“Not
all of the management principles will be equally appropriate to all parts of
the SSSI, for instance the footprints of dwellings and their gardens where
operations requiring English Nature’s consent would also not apply. “
Despite
all this, even if there were at any time in the future any obligation placed
upon the landowner as a result of the new SSSI, they would not then require the
consent of the Council to undertake the works as the Council’s consent is not
required for any work to a protected tree carried out in compliance with a
statutory obligation.
RECOMMENDATIONS
|
|
20.
OPTION 1:
Confirm TPO/2003/6 without modifications. |
APPENDICES
ATTACHED
21.
Appendix A: Letter from Mrs Sidney Hall, the landowner
Appendix
B: Letter from Mr and Mrs Wright
Appendix
C: Chronology of events
BACKGROUND
PAPERS
22.
·
Files relating to previous Orders will be available at
the meeting.
·
The report of the Local Government Ombudsman 19 March
2003
·
‘Tree Preservation Orders, a Guide to the Law and Good
Practice’ DETR 1999
Contact
Point : Matthew Chatfield, F 823893
Chronology of events
1954 The County of the Isle of Wight (Urban District
of Ventnor) Tree Preservation Order, 1954 made (1 of 3 Area Orders made over
large parts of Undercliff)
Monday, 13 November 2000
Tree & Landscape Officer's initial site visit
24 and 25 November 2000 Tree & Landscape Officer's
second site visit - agreed beforehand with owner - application to fell some
further trees, all under 46 years old
8 June 2001
Site visit, agreed with owner, to survey trees for TPO
/2001 / 17
19 June 2001 TPO /2001 / 17 made (19 individual trees)
21 June 2001 call to Tree & Landscape Officer by
local resident expressing concern that more trees were not protected
26 June 2001 petition requesting protection of 16 more
trees collected from Cllr Bartlett by Tree & Landscape Officer
28 June 2001 letter received from owner requesting an
additional tree to be protected
13 July 2001 TPO /2001 /26 made (Area Order) and sent
by recorded delivery. Delivery returned
as owner had been away
20
July 2001
Visit to inspect trees along boundary of Timber
30 July 2001
TPO /2001 /26 served again by process server
3 August 2001
Site visit by Tree & Landscape Officer /
Enforcement Officer
27 July 2001
Coastal Manager's letter to owner about trees and land
slippage
17 August 2001
Site visit to assess additional trees requested by
petitioners / owner
10 September 2001
Coastal Manager's further letter to owner about trees
and land slippage
13 September 2001 Arc environmental consultants asked
to carry out tree survey on behalf of Council.
25 September 2001
Report of site visit by Arc environmental consultants
submitted
31 October 2001 Regulatory Appeals Committee meeting -
decision made to postpone decision until site visit made
23 November 2001
Regulatory Appeals Committee site visit to
"Timber"
30 November 2001 Regulatory Appeals Committee meet and
determine that TPO 2001/17 be confirmed with modifications, and two new TPOs be
made.
Sept 2001: Site visit by ARC Environment to Timber and
many other adjacent properties as part of pilot TPO Review.
11 June 2002:
New woodland TPO made Land North of Undercliff Drive,
Niton and St. Lawrence
(TPO/2002/7)
11 September 2002 TPO2002/23 is provisionally made to
cover 33 individual trees and one group.
2 October 2002 65 essentially identical letters of
objection to TPO2002/23 received. Other objections were also received.
9 October 2002 Objection received from landowner
including report by Colin Bashford Associates.
12 December 2002 Regulatory Appeals Committee meets
and determines to confirm TPO2002/23 with modifications.
14 April 2003 Area order TPO2003/6 is provisionally
made covering the whole area of Timber.