PURPOSE/REASON

1. This report requires the Committee to determine whether or not to confirm Tree Preservation Order 2003/4.

DETAILS OF THE APPLICATION/ORDER

2. On 27 March 2003, a TPO was made on four individual trees at the former nursery known as Green Fingers, Pellhurst Road, Ryde. Three letters of objection were received from neighbours and one letter of support was received from the landowner.

LOCATION AND SITE CHARACTERISTICS

3. The property is a former nursery situated on land behind houses in Pellhurst Road and Mayfield Road. It is almost entirely surrounded by the back gardens of some thirteen other houses, and accessed by a small lane known as Nursery Lane. The landowners presently describe it as ‘a beautiful garden/green space… a haven of peace, and a reserve for the beleaguered birds and wildlife of the surrounding area’.

RELEVANT HISTORY

4. Factual

In 2002 the landowners requested that a TPO be made over their property, as they were concerned that neighbouring landowners would cut back trees which overhung their boundaries.

Following this request the Tree and Landscape Officer made a site visit and identified four trees which were worthy of protection.

A TPO was made on 27 March 2003.

5. Committee History

There has been no previous tree protection on this site, and there are no outstanding planning consents.

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.

8. Police

None applicable.

9. Relevant Council Departments

None applicable.

10. Parish and Town Councils

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

11. Local Member

Cllr Mr Stephens has been copied the relevant documents in connection with this matter.

THIRD PARTY REPRESENTATIONS

12. Objectors

Three objections were received from neighbours. These are attached as Appendix A.

13. Supporters

A letter from Mr and Mrs Blades, the landowners, was received on 4 June 2003 supporting the confirmation of the TPO. This is attached as Appendix B. Numerous annotated photographs were also included and these will be made available at the committee meeting.

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.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

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 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 high present and future amenity to the general public.

OPTIONS

OPTION 1: Confirm TPO/2003/4 without modifications.

OPTION 2: Confirm TPO/2003/4 with modifications (recommended).

OPTION 3: Do not confirm TPO/2003/4

EVALUATION

18. The site of Green Fingers is well covered with trees, most of which are domestic and garden varieties which have been planted there; as might be expected from a former nursery. The photographs and letter supplied by the landowners clearly indicate their commitment to retaining and encouraging trees on the site. All the trees in the Order are within Green Fingers, and the original intention of the TPO was to prevent neighbours from cutting back overhanging branches. However, of the four trees worthy of protection, only two are actually adjacent to the boundary, and of these, only one T1 (Cupressus macrocarpa) is large enough to overhang the neighbours’ boundaries significantly. There are several other large conifer trees on the site which overhang boundaries, but none of these are included within the Order and are not a part of the decision before the Committee.

The three objectors all have valid objections and object on essentially the same grounds. This is that the protected trees overhang others’ gardens and block the light to them. Two of the objectors, from 18 and 20 Pellhurst Road, are from the two properties closest to T1. The third objector, in Mayfield Road, is not actually overhung by any protected trees, but refers to the effect upon other unspecified properties. Essentially, the objectors are only objecting to T1. None of the other trees are mentioned, except by Mr Platt of Mayfield Road, who only refers to the trees collectively and in general terms.

The Senior Countryside Officer made a site visit to 18 and 20 Pellhurst Road to assess the effect of T1 on these two properties. He examined T1 from the back garden of 18 Pellhurst Road and from the side of 20 Pellhurst Road, as well as the view from the street.

His report included the following:

“T1 overhangs the garden of 20 Pellhurst Rd significantly, and does block the light from both 18 and 20 Pellhurst Road. It is, however, a good specimen of a macrocarpa, and is in good health and shape. It has some visual amenity and enhances the view from the street. Nevertheless, it is bound to get larger, and it does seem likely that even if it does not pose a nuisance to the neighbours now, it will inevitably do so in the future.”

Whether or not this tree is protected by the Order, it is unlikely to be removed or have its height significantly reduced, as it is still largely within the boundary of Green Fingers. The owners of the tree have indicated that they do not intend to remove it, and so the tree itself is not under any threat, it is simply those branches which overhang 20 Pellhurst Road. If the tree were protected, and if these branches are a nuisance, or if at any time they become a nuisance, it would be likely that the Council would be bound to grant consent for them to be removed anyway. Therefore, it seems unnecessary to protect T1 with this Order.

Accordingly, following consideration of the objections received, the recommended option is to confirm the Order with T1 removed from the Order.