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Draft Planning Committee Report_TPO No.20 of 2009

MAIDSTONE BOROUGH COUNCIL

 

PLANNING COMMITTEE

 

Agenda Date: 25th February 2010

               

REPORT OF THE ASSISTANT DIRECTOR OF DEVELOPMENT AND COMMUNITY STRATEGY

 

 

                                                             

 

REFERENCE: Tree Preservation Order No. 20 of 2009.   Date: 11/09/2009

 

APPLICANT: N/a.

 

LOCATION:  Tree on Land at Ringers, Upper Street, Leeds

 

PROPOSAL: Tree Preservation Order (TPO) No.20 of 2009 was made under section 201 of the Town and Country Planning Act 1990 to protect one Silver Birch tree. One objection to the order has been received and the Planning Committee is, therefore, required to consider this before deciding whether the Order should be confirmed.

 

CASE OFFICER:  Guy Stephens

 

The recommendation for this TPO decision is being reported to Committee for decision because:

 

 

  • One valid objection has been received

 

 

POLICIES

 

 Maidstone Borough Council, Landscape Character Assessment & Landscape Guidelines, 2000

Government Policy: ODPM, ‘Tree Preservation Orders: A Guide to the Law and Good Practice’

 

 

PLANNING HISTORY/ BACKGROUND

 

The tree was inspected on 4th September 2009 by Landscape Officers in response to a notification to fell the Silver Birch.

 

The grounds for the making of the Order are as follows: -

 

The Silver Birch tree is a mature, healthy specimen, prominent from Upper Street and therefore makes a valuable contribution to the character and amenity of the area. The tree is considered to be under threat due to a section 211 notification, TA/0106/09, to fell the tree. The reasons given for removal are considered unreasonable. Therefore, it is considered expedient to make the tree the subject of a Tree Preservation Order.

 

The Section 201 direction bringing the order into immediate effect expires on 15th March 2010.

 

CONSULTATIONS

 

The TPO was served on the owner of the land in question and any other parties with a legal interest in the land. One objection has been received to the order, within the statutory 28 day period from its making by the neighbours, at 35 Burgess Hall Drive, Leeds Village. The full text of the objection is attached to this report as Appendix A.

 

The grounds of the objection are summarised as follows: -

 

  1. Concern about the damage the tree is doing to the property.
  2. Nothing can grow in the garden because the roots have extended into the garden.
  3. Seasonal debris e.g. catkins and leaves, are blocking drains. This has resulted in their gutters being replaced.
  4. The tree blocks out the morning light.
  5. Additional vegetation from ‘Ringers’ is encroaching on the garden which is pushing roses from the arbour.
  6. It is alleged that there are cracks in the property which may be attributed to tree root action and there is concern the buildings insurance will not cover subsidence.
  7. As retired we are unable to carry out essential maintenance to the gutters.
  8. Photographs are included showing catkin debris and the blocked soakaway.

 

 

CONSIDERATIONS

 

SITE AND SURROUNDINGS

 

The tree is a mature Silver Birch located in the rear garden of ‘Ringers’, specifically it is located in the south western part of the garden. The property lies within Leeds (Upper Street) Conservation Area.

 

The garden itself surrounds the dwelling on all sides however the Birch is the only mature tree within the garden. A conifer hedge is on the south and western boundaries of the garden and is maintained at approximately 8 feet. The section of the garden where the tree is situated is surrounded by grass. There are a number lateral roots which are visible; this is as a result of the soil being compacted.

 

 

DESCRIPTION OF TREE/S

 

The tree has a diameter at breast height (dbh) of 50 cm; the height is 12 metres and it has an average radial crown spread of 3 metres. The canopy exhibits good vigour. A cavity was however noted on the northern aspect of the stem, although it was not possible to ascertain the extent of the decay but there were external signs on the stem that indicated there was a strong annual increment of growth.

 

LEGAL CONTEXT

 

 

The Local Planning Authority (LPA) can deal with a section 211 notice in one of three ways. It can:

 

  • make a TPO if justified in the interests of amenity. The proposal is then likely to be the subject of a formal application under the TPO, or

 

  • decide not to make a TPO and allow the six week period to expire, at which point the proposed work may go ahead as long as it is carried out within two years from the date of the notice, or

 

  • decide not to make a TPO and inform the applicant that the work can go ahead.

 

The LPA cannot refuse consent. Nor can it grant consent subject to conditions but it can offer practical advice on how the work should be carried out (informatives).

 

In order to consider whether a TPO should be made the amenity value of the tree or group of trees is assessed. Special attention is paid to the desirability of preserving the character or appearance of any conservation area. However, even if the tree, or group of trees, merits a TPO it may not be expedient to make one. The proposed work, for example, may be in line with good practice.

 

 

ASSESSMENT OF CASE

 

CONTRIBUTION TO AMENITY

 

Within the immediate area there few mature trees, particularly indigenous species which are as prominent as the Silver Birch and if removed would have a detrimental effect on amenity value of Leeds (Upper Street) Conservation Area.  

 

 

 

RESPONSE TO OBJECTION/S

 

The response to the principle points set out above is as follows:-

 

1.   It is not unreasonable to be concerned about mature tree located close to properties. However in this case there is no supporting evidence to support the claim that the tree is damaging the property.

2.   This is a problem commonly associated with a specific use of a private garden and is not a consideration when confirming a TPO.

3.   The issue regarding leaf and catkin debris is a natural occurrence and a blocked gutter is a maintenance issue. There are products available on the market which can be easily installed and will help alleviate the problem with arisings.

4.   There is no ‘right to light’ in relation to deciduous trees under current legislation, except in specific circumstances and, in any case, no evidence has been provided to date which proves that the right to light has been accrued.

5.    The additional vegetation which is encroaching onto the property and causing damage to the arbour is a maintenance issue and not a consideration relating to the confirmation of the TPO.

6.   No evidence has been provided to demonstrate structural movement is occurring. If evidence is provided in the future, any necessary remedial works can be applied for.

7.   It is acknowledged that the landowners are retired which means they may have to employ a contractor to carry out essential maintenance work to the gutters. However it should be noted that there are alternative solutions to prevent the gutters from being blocked which are discussed in point 3 above.

 

The issues raised in the objection letter are commonly associated problems where trees are in close proximity to dwellings. The Silver Birch tree in question has sufficient public amenity value, and fulfils the criteria, to merit the making of a Tree Preservation Order and, because the proposed felling of the tree is considered to be inappropriate management, it is expedient to make a TPO in this case.

 

                                                                                                              CONCLUSION:

 

For the reasons set out above it is considered that:

 

 

There are no grounds of objection above which are sufficient to throw the making of the Order into doubt. 

 

 

RECOMMENDATION:

 

CONFIRM WITHOUT MODIFICATION Tree Preservation Order No.20 of 2009.