PURPOSE/REASON

1. This report requires the Committee to determine whether or not to confirm TPO/2003/17.

DETAILS OF THE ORDER

2. On 18^th August 2003 a TPO was made on woodland at land adjacent to Public Footpath R1, Ashlake Copse Road, Ryde.

3. An objection was received from the landowner’s agent.

LOCATION AND SITE CHARACTERISTICS

4. The woodland is also protected by TPO/1991/28, which is an area TPO protecting trees at land adjoining Wootton Creek. The land which is the subject of this new TPO is unmanaged woodland in an area of large houses set in mature woodland. Ashlake Copse Road is an unmade track, and footpath R1 is an unsurfaced footpath which is well-established and in good condition. Footpath R1 and Ashlake Copse Road itself form part of the Coastal Footpath, and are well used by tourists and local walkers. Both tracks are directly adjacent to the site, and provide good views into the woodland. The site is mature secondary woodland, which has been undisturbed for some time, allowing a typical attractive woodland flora to develop. As well as being an important feature in the local landscape and tourist amenity, it is a wildlife habitat of great significance providing habitat which is suitable for red squirrels, dormice and bats, as well as many birds and invertebrates. Habitat such as this has, in the past, been compromised in this area by development. Undisturbed blocks of woodland are important refuges for wildlife.

RELEVANT HISTORY - FACTUAL

5. An application for consent to carry out work to the trees on the site was received on 16^th July 2003 (at that time the trees were, and continue to be, protected by TPO/1991/28). The application was made for works “to clear the site…prior to application to build”. A site visit was made by the Senior Countryside Officer on 22^nd July 2003 as part of the application process. The application was refused, and the trees were considered to be of sufficient amenity value that a TPO was made to protect them.

6. The review of the 1991 Order is in keeping with DETR Guidelines in which Local Planning Authorities are advised to keep their TPOs under review, particularly Area Orders.

7. A TPO was made on 18^th August 2003.

COMMITTEE HISTORY

8. There is existing tree protection on the site. Medina Borough Council, Land North of Kite Hill and West of Fishbourne Lane, Wootton, IW Tree Preservation Order 1991 (TPO/1991/28) was made on 21^st June 1991 and confirmed on 27^th September 1991. The TPO was made in the interests of the amenities of the area. The plan from TPO/1991/28 is shown at Appendix A.

9. An outline planning application was made for the erection of a dwelling and the formation of a means of vehicular access, land at Ashlake Copse, Fishbourne, IW. Conditional approval 25^th July 1963. (TCP/9623/R/6553). This permission was never implemented and has now expired.

10. An outline planning application was made for a dwelling, land between Green Dolphin and Little Bookham, Ashlake Copse Road, Fishbourne, IW. Refused 7^th November 1983. (TCP/9623A/M/16322).

COUNCIL POLICY

11. 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

12. Fire – No consultation applicable

13. Police – No consultation applicable.

14. Relevant Council departments. – The Countryside Access Manager, Public Rights of Way Department has been copied the relevant documents in connection with this matter.

15. Parish and Town Councils - No Town or Parish Council exists in this area. Ryde Help Centre was copied the relevant documentation.

16. Local Member - Cllr Mr Fox has been copied the relevant documents in connection with this matter.

THIRD PARTY REPRESENTATIONS

17. Objectors - Two letters were received from the landowner’s agent. These are attached as Appendix B.

18. Supporters - No letters of support have been received. A telephone call supporting the TPO was received from a resident of Fishbourne Lane on 28^th August 2003. A further telephone call supporting the TPO was received from another resident of Fishbourne Lane on 11^th September 2003.

FINANCIAL IMPLICATIONS

19. 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.

20. In addition, no claim will be valid

· For less than £500.00;

· When made more than 12 months after the decision.

LEGAL IMPLICATIONS

21. 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.”

22. 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).

23. 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.

24. 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

25. None applicable.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

26. 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 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 very high present and future amenity to the general public.

OPTIONS

27. OPTION 1. Confirm TPO/2003/17 without modifications (recommended).

28. OPTION 2. Confirm TPO/2003/17 with modifications.

29. OPTION 3. Do not confirm TPO/2003/17.

EVALUATION

30. An application for consent to carry out work to the trees on the site was received on 16^th July 2003 (at that time the trees were, and continue to be, protected by TPO/1991/28). The application was made for works “to clear the site…prior to application to build”. The Senior Countryside Officer made a site visit on 22^nd July 2003 as part of the application process.

31. The trees were assessed during the site visit and a new TPO was made. The grounds for making the TPO were that the wood is of very high present and future public amenity value and is visible from Public Footpath R1 and Ashlake Copse Road. It is a wildlife habitat of great significance. The trees may also contribute to land stability in the area.

32. The application for works was refused on 22^nd August 2003.

33. Two letters of were received from the landowner’s agent. These are shown at Appendix B along with Officer replies. The objector was advised in the Council’s letters of 2^nd September 2003 and again on 8^th September 2003 that he had not identified any material consideration which would be sufficient reason not to confirm the TPO. In these responses the Council indicated in some detail the grounds on which the objector could legitimately object, suggested the form in which such an objection might be made, and gave references to further information to assist him in drawing up his objection. Despite this, the objector’s responses did not go into any further detail as to the grounds for any objection. The objector has been given the opportunity, with written guidance, to make valid objections to the making of the TPO. A further letter has been received (as shown in Appendix B) in which the landowner’s agent requests that the TPO being considered by the Regulatory Appeals Committee. Although, technically, the objector has yet to make a valid objection, it seems appropriate to bring this decision before Members as his intentions to object obviously remain.

34. The objector has attempted to appeal against the making of the TPO and submitted an appeal form to the Government Office for the South East on 17^th September 2003. The appeal was not correctly made and the appeal is not valid. It is not possible to appeal against the making of a TPO except by means of judicial review in the High Court. The Government Office for the South East has advised the Council that they have communicated with the objector to clarify the position with regard to this appeal. Accordingly, this attempted appeal is not a factor which the Committee need consider in this decision.

35. The objector says, “The order does not recognise the Present Planning Policy governing the site”. This is not in itself reason to object to a TPO as a TPO cannot directly restrict legitimate development. Although the woodland is within the Development Envelope (designation from the IW Council’s Unitary Development Plan), there is neither current planning consent for the land nor any outstanding application.

36. The objector says, “The order is impractical in that it does not recognise the potential of individual trees in such a small area”. This would appear to be a comment in support of the making of the TPO. It is partly this potential which prompted the making of the woodland Order.

37. The objector says the Order “invites fly tipping”. This is not reason to object to a TPO as the perceived threat of fly tipping has no direct bearing on the amenity value of the woodland.

38. The objector says, “The opinions given are subjective regarding Amenity, Wildlife and Land Stability”. This is true. 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.”

Such a decision can only be a subjective one. This subjectiveness is in keeping with guidelines laid down by the DETR in the book ‘Tree Preservation Orders, a Guide to the Law and Good Practice’ DETR 1999.

39. The objector says, “Undisciplined orders of this sort threatens every overgrown site or garden and complicates Planning issues”. This is not in itself reason to object to a TPO as a TPO cannot directly restrict legitimate development. Any planning application made on the land, if approved, will over-ride any TPO.

40. The objector says, “On site consultation was not offered”. This is not a reason to object to a TPO. A site visit was made and it is not normal procedure to consult directly with a landowner before a TPO is made; especially where, as in this case, the landowner has expressed the intention of clearing the site.

41. The five reasons for objecting to the new TPO as outlined above do not address or test the grounds on which the TPO was made.