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MAIDSTONE BOROUGH COUNCIL
PLANNING COMMITTEE
16 December 2010
REPORT OF THE HEAD OF SPATIAL PLANNING
REFERENCE: Tree Preservation Order No. 8 of 2010 Date made: 2 July 2010
TITLE: Trees and Woodland at Great Oak Farm, Friday Street, East Sutton
CASE OFFICER: Nick Gallavin
Tree Preservation Order (TPO) No.8 of 2010 was made under section 201 of the Town and Country Planning Act 1990 to protect one Oak tree and a woodland. 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.
The recommendation on whether to confirm this TPO is being reported to Committee for decision because:
· one objection has been received
1. POLICIES
Advice in PPS1: Protection & Enhancement of the Environment
Advice in PPS9: Ancient Woodland & Other Important Habitats
South East Plan, 2006, Policy C4: Landscape & Countryside Management
South East Plan, 2006, Policy NRM7: Woodlands
Maidstone Borough Council, Landscape Character Assessment & Landscape Guidelines, 2000
Government Policy: ODPM, ‘Tree Preservation Orders: A Guide to the Law and Good Practice’
2. HISTORY
2.1 Relevant Planning History
TA/0113/10 An application for consent for tree felling works as set out in Quaife Woodlands Report AR/2297/jq dated 5th July 2010; all trees being subject to Tree Preservation Order No. 8 of 2010. REFUSED on 07/12/2010.
09/0861 An application for full planning permission for the erection of an agricultural barn. REFUSED on 14/09/2009. Appeal ALLOWED WITH CONDITIONS on 02/09/2010.
08/0896 An application for the prior approval of the local planning authority for the erection of a building to store hay and chemicals for Alpacas. REFUSED on 24/06/2008
2.2 History/context
2.2.1 In July 2009, planning application MA/09/0861 for the erection of a barn, made reference to rotating an alpaca herd through the planted wood to the north of the proposed barn, and that ‘Prior to the rotation the wood will require a thinning of the existing trees…any further required expansion will require the removal of some exisiting trees’.
2.2.2 It was then found that the woodland had been planted in 1994 under a Woodland Grant Scheme (WGS) application and was also the subject of a Farm Woodland Premium Scheme (FWPS) application. The FWPS agreement specified that the woodland cannot be used for any agricultural purpose (including the grazing of animals) up until 2024. If this is not adhered to the FWPS applicant could be liable to repay the payments received, with interest. It subsequently became evident that FWPS applicant and the current landowner were different people and, as the Forestry Commission were unaware of this and the FWPS agreement has not been transferred, there is no obligation on the new owner to comply with the terms of the original contract.
2.2.3 On 17 May 2010, during a site visit for the appeal relating to application MA/09/0861, it was noted that there was evidence of recent activity with heavy soil moving machinery in the vicinity of a very large old Oak tree located close to the southern boundary of the main woodland block, causing possible soil compaction and root damage.
2.2.4 As a result, it was considered expedient to protect the Oak tree and the main woodland by the making of a TPO.
2.2.5 The grounds for the making of the order were stated as follows: -
‘The mature trees and young woodland are healthy, prominent from Friday Street and surrounding public footpaths and make a valuable contribution to the character and amenity of the area. The trees are considered to be under threat due to the loss of protection previously provided under a Farm Woodland Premium Scheme contract, proposed felling works to enable grazing, potential direct damage from grazing and recent earth moving works and use of heavy machinery in the vicinity of mature trees. Therefore, it is considered expedient to make the trees the subject of a Tree Preservation Order.’
2.2.6 The Section 201 direction bringing the order into immediate effect expires on 2 January 2011.
3. OBJECTIONS
3.1 The TPO was served on the owner of the land in question and any other parties with a legal interest (or possible legal interest) in the land where the trees are growing.
3.2 One objection to the order has been received, within the statutory 28 day period from its making, by Brachers LLP on behalf of the owner of the land. The full text of the objection is attached to this report as Appendix A.
3.3 The grounds of the objection are summarised as follows:-
a) The woodland does not provide any public benefit as it is relatively young, being planted approximately 11 years ago. It is not particularly visible from Friday Street due to the existing hedge and tree line along the frontage, which it is set back from. This boundary would not be affected by any ongoing woodland management work and thereby any internal works would not be visible from Friday Street.
b) The woodland is not particularly visible from any public footpaths. No footpaths cross it, with the closest being KH533, some 60m away and obscured by a line of Leylandii trees.
c) The woodland is not particularly visible from any public location and accordingly works would not have a detrimental affect on amenity or the character of the area. Also, the woodland is not required to screen an eyesore or any current or future development.
d) The TPO does not prevent grazing within the woodland and this is therefore an irrelevant consideration and should not have formed part of the decision making process.
e) No earth moving works are proposed which would affect the trees covered by the TPO and this is, therefore, an irrelevant consideration and should not have been taken into account.
f) DCLG guidance states that it is unlikely to be expedient to make a TPO in respect of trees under good arboricultural or silvicultural management. The owner commissioned a report (included at Appendix A) on the integration of alpaca grazing into the woodland. It is his intention to carry out some thinning, which should retain the woodland character. It cannot be considered expedient to make the order as the report demonstrates that the land is under good arboricultural management. It also shows that there is no threat to the woodland in terms of affecting the amenity of the local environment in that the proposed thinning is all in the interior of the site and will be screened from public viewpoints by the retained woodland. The report was commissioned before the TPO was made, which demonstrates the owner’s intention to deal with the woodland in a responsible way. Before the TPO had been made he could have carried out much more extensive felling than is proposed, but chose to commission a report which would ensure that the land retained its woodland character.
4 REPRESENTATIONS
4.1.1 The order was also copied to any landowners immediately adjacent to the site. No further representations were received, although comments have been received from the Forestry Commission in respect of application TA/0113/10. These are considered relevant and are therefore outlined below.
4.1.2 The proposed works are not considered to be in accordance with good forestry practice. In particular:
· Clearing 50% of the woodland area exceeds acceptable open space limits within native woodland. Up to 20% open space consisting of rides and glades is normal in new plantations. In certain woodlands where it can be fully justified, up to 40% open space can be used. The current woodland already appears to have a network of rides and therefore clearing an additional 50% of the trees would clearly exceed the current thresholds.
· The total woodland area measures to be approximately 4ha and therefore clearing 50% of the area would equate to approximately 2ha to be cleared. Under the current EIA regulations, the threshold for deforestation where no part of the land is in a sensitive area is 1ha. If these proposals are approved, an application for an EIA determination would need to be submitted to us for deforestation on this scale.
· By clearing woodland for intensive farming and fencing it off from the remaining fringe of woodland, the land use would change from woodland with some integral open space to intensive farming. The integrity of the woodland would be significantly altered by erecting fences and introducing grazing areas.
5 CONSIDERATIONS
5.1 Site and Surroundings
5.1.1 The site consists mainly of a woodland block of approximately 4 hectares and is located immediately adjacent to the road, on the west side of Friday Street, East Sutton.
5.2 Description of Trees
5.2.1 Much of the woodland area identified as W1 on the order schedule is relatively new planting, planted in about 1994 under a Woodland Grant Scheme (WGS) application. The planting has been carried out approximately in accordance with the WGS proposal and consists predominantly of Oak, with Ash, Cherry, Field Maple, Hazel, Rowan and Silver Birch. Smaller ‘woody shrub’ species, such as Dogwood, Willow, Crab Apple and Guelder Rose are also present. A number of older trees are also present, mainly on the boundaries of the site. The woodland has been designed and planted with rides included within the layout.
5.2.2 In addition to the main woodland, there is a notable, very large mature specimen Oak adjacent to the southern boundary, identified individually as T1 on the order schedule.
5.3 Legal Context
5.3.1 Local Planning Authorities (LPAs) may make a TPO if it appears to them to be 'expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area'.
5.3.2 The Act does not define 'amenity', nor does it prescribe the circumstances in which it is in the interests of amenity to make a TPO. In the Secretary of State's view, TPOs should be used to protect selected trees and woodlands if their removal would have a significant impact on the local environment and its enjoyment by the public. LPAs should be able to show that a reasonable degree of public benefit would accrue before TPOs are made or confirmed. The trees should therefore normally be visible from a public place, such as a road or footpath. The benefit may be present or future. It is, however, considered inappropriate to make a TPO in respect of a tree which is dead, dying or dangerous.
5.3.3 LPAs are advised to develop ways of assessing the 'amenity value' of trees in a structured and consistent way, taking into account the following key criteria:
(1) visibility
(2) individual impact
(3) wider impact
Officers use an amenity evaluation assessment form based on Government guidance and an industry recognized system which enables Arboricultural Officers to make an objective decision on whether trees fulfill the criteria for protection under a TPO.
5.3.4 However, although a tree may merit protection on amenity grounds, it may not be expedient to make it the subject of a TPO. For example, it is unlikely to be expedient to make a TPO in respect of trees which are under good arboricultural management. It may, however, be expedient to make a TPO if the LPA believe there is a risk of the tree being cut down or pruned in ways which would have a significant impact on the amenity of the area. It is not necessary for the risk to be immediate.
5.4 Response to Objection
5.4.1 The response to the principle points of objection is as follows:-
Grounds a), b) and c)
5.4.2 It is acknowledged that the trees in the woodland are still quite young and, therefore, currently, at a height of around 5 metres, they are largely hidden from view by the surrounding hedges and trees that were present prior to planting. The new woodland is set back from this boundary because it was designed with access rides around its perimeter. Regardless of this, the amenity value of the young trees will clearly increase over time as they mature and become more visible above the external planting.
5.4.3 The woodland must be considered as a whole unit, including boundary trees. Its amenity value is much greater than just its visual prominence from the immediate surroundings, including its environmental and ecological benefit and its contribution to the character of the wider landscape.
5.4.4 Felling of trees in the centre of the woodland may not be visible from outside the site, but will result in a net loss of tree cover and affect the integrity of woodland as a whole, particularly in terms of its effect on the woodland ecosystem and the specific habitats that are typically found within woodland, essential to biodiversity.
Ground d)
5.4.5 A TPO does not specifically prevent grazing. However, allowing grazing that results in the destruction of trees could be considered an offence under current legislation, but only if there was enough evidence to prove that the destruction was intentional. Damage that does not result in destruction would not be considered an offence under current TPO legislation.
Ground e)
5.4.6 Although no earth moving works are proposed, evidence of recent potentially damaging operations within the root protection area of T1 were noted during a site visit. It was therefore considered that a potential risk existed, again, making it a relevant consideration in making the order. Confirmation of the order would serve to discourage similar work from taking place in the future.
Ground f)
5.4.7 The timing of the report on the integration of alpaca grazing into a new woodland has no relevance to the confirmation of the TPO. However, there are concerns that the report was commissioned in order to justify the intention to allow grazing within the woodland, rather than because of a desire to manage the woodland in accordance with good forestry practice. It should also be noted that the Forestry Commission’s comments in relation to this report confirm that the proposals are not considered to be in accordance with good forestry practice. In particular, the felling of a significant proportion of the trees for the purposes of creating grazing land represents a net loss of woodland area, particularly because this type of land management would not allow natural regeneration of trees and ground flora. The objection also suggests that more extensive felling may have taken place if the TPO had not been made.
5.5 Summary
Despite the grounds of objection submitted on behalf of the current owner of the woodland it is considered that the intentions for the trees and woodland at Great Oak Farm are not in accordance with good forestry practice. Therefore, ongoing protection of the woodland through confirmation of the Tree Preservation Order is considered expedient.
6 CONCLUSION
6.1 There are no grounds of objection above which are sufficient to throw the making of the Order into doubt.
7 RECOMMENDATION
CONFIRM WITHOUT MODIFICATION Tree Preservation Order No. 8 of 2010.
8 BACKGROUND DOCUMENTS
406/113/04 - TPO No. 8 of 2010