MAIDSTONE BOROUGH COUNCIL
PLANNING COMMITTEE
23rd September 2010
REPORT OF THE DIRECTOR OF CHANGE, PLANNING AND THE ENVIRONMENT
REFERENCE: Tree Preservation Order No. 4 of 2010 Date: 28 April 2010
TITLE: Trees rear of 11-15 Northleigh Close, Loose.
CASE OFFICER: Nick Gallavin
Tree Preservation Order (TPO) No.4 of 2010 was made under section 201 of the Town and Country Planning Act 1990 to protect one Sycamore and two Sweet Chestnut trees. 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
POLICIES
Advice in PPS9: Ancient Woodland & Other Important Habitats (Circular 06/05: Biodiversity and Geological Conservation)
Maidstone Borough Council, Landscape Character Assessment & Landscape Guidelines, 2000
Government Policy: ODPM, ‘Tree Preservation Orders: A Guide to the Law and Good Practice’
BACKGROUND
History/context:
In February 2010, Landscape Officers received several request to consider the trees adjacent to Chareda, Pickering Street for protection, following the submission of planning application MA/09/1883. Following assessment, it was considered expedient to protect some of the trees by the making of a TPO.
The grounds for the making of the order were stated as follows: -
The Sycamore and Sweet Chestnut trees are mature, healthy specimens, prominent from Pickering Street and public footpath KM58 and therefore make a valuable contribution to the character and amenity of the area. The trees are considered to be under threat due to a proposal to develop the adjacent site at ‘Chareda’, which could result in works that would be detrimental to the long term health and amenity value of the trees, and future pressure for their removal. Therefore, it is considered expedient to make the trees the subject of a Tree Preservation Order.
The Section 201 direction bringing the order into immediate effect expires on 28 October 2010.
A group of 5 trees, a Sycamore, an Ash and three Sweet Chestnut are growing on the southern boundary of the gardens of the Northleigh Close properties and overhang the rear garden of the existing property at ‘Chareda’, Pickering Street. Planning application MA/09/1883 proposes to demolish the existing property at ‘Chareda’, Pickering Street and to construct two new properties on the site. One of the new properties will be set forward (east) of the existing, with the other towards the back (west) of the site, where the group of trees overhangs. The planning application is currently undetermined.
The Landscape Officer visited the site on 25 February 2010 and carried out an amenity assessment of the trees, using the Council’s standard amenity evaluation assessment. The results of this indicated that three of the trees, a Sycamore and two Sweet Chestnut have sufficient amenity value to merit their protection, scoring higher than the benchmark score of 17 as individual trees. The Ash and the smallest Sweet Chestnut were not considered to be of sufficient quality to merit protection.
It could be argued that the five trees should be treated as a group but I do not consider that this should be the case for the purpose of a Tree Preservation Order. Considering trees as a group recognises their amenity in terms of their contribution to the group as a whole, even when some trees within that group would not merit protection as individuals. However, in this case, the two trees in the group that scored less than the benchmark as individuals are smaller and of considerably poorer quality that the adjacent trees and furthermore, I do not consider that their removal would be detrimental to the group as a whole.
Although the trees are not under the control of the owner/occupier of Chareda (or any future owners/occupiers), they have a right, under common law, to cut back overhanging branches (and roots) to the boundary of their property, which could be detrimental to the amenity value of the trees and could lead to instability and reduced safe useful life expectancy. It was therefore considered expedient to make the trees the subject of a Tree Preservation Order. Continued protection by a Tree Preservation Order would ensure that the Local Planning Authority retains control over the type and extent of any proposed works to the trees.
OBJECTIONS
The TPO was served on all known owners and occupiers 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 occupier of 17 Walnut Tree Avenue. Note that the objection relates to the confirmation of the Tree Preservation Order for T3 Sweet Chestnut only (no objection has been received in respect of T1 Sycamore and T2 Sweet Chestnut). The full text of the objection is attached to this report as Appendix A.
The grounds of the objection are summarised as follows: -
Options for attending to the impacts of T3’s presence in relation to the structure and grounds of 17 Walnut Tree Avenue and taking any immediate action thought necessary to mitigate the loss of natural light plus risk of damage or injury will be severely limited. Without the ability to take immediate action(when required), this tree will continue to restrict the level of natural light into the property and without evasive action, the tree represents an unacceptable risk of damage to the property plus an unacceptable risk of injury.
The impacts cited include:
- Branches overhanging the boundary by 9 to 10 feet, severely restricting natural light.
- Branches reach 8 feet or less from ground level, which could potentially restrict access to the property.
- Branches reach, at their closest, approximately 1 foot from the house.
- There is an ever present risk of falling branches that could result in damage or injury, which causes major concern.
Although not cited as a formal objection, comments were also made in relation to trees T1 and T2. Specifically, roots causing damage to the adjacent footpath surface, leaves causing a slip hazard and risk of falling branches
REPRESENTATIONS
The order was also copied to any landowners immediately adjacent to the site.
Nine letters in support of the TPO have also been received. Five of these are from neighbours in Pickering Street and Northleigh Close and a further four are from individuals living in Coxheath and Rochester. However, it should be noted that 5 of these contain identical text and a further 2 are identical. Therefore, although nine individuals have submitted letters, there are only four different letters in respect of their content. The full text of the four letters is attached to this report as Appendix B.
CONSIDERATIONS
SITE AND SURROUNDINGS
The trees are located on the rear boundary of the properties of numbers 11, 13 and 15 Northleigh Close. Public footpath KM53 (also known as Walnut Tree Avenue) runs east-west immediately south of the rear boundaries of 11, 13 and 15 Northleigh Close. Ownership of the trees has not been established and may be shared, as the main stems of the trees appear to straddle the footpath and the Northleigh Close gardens in some cases.
DESCRIPTION OF TREE/S
T1 is a mature Sycamore of good form, reaching approximately 10-12m in height. The main stem forks to 3 stems at a height of approximately 1m, with a basal stem diameter of approximately 1.3m and a broad, spreading crown with a radial crown spread of approximately 6-8m. The crown overhangs the gardens to the north and south considerably. There is evidence of some previous pruning works, specifically the removal of selected lower branches back to the main stems. T1 scored 18.5 in the Council’s standard amenity evaluation assessment (against a benchmark score of 17 for inclusion within a TPO).
T2 is a mature Sweet Chestnut adjacent to T1. It is another large tree, reaching 12-14m in height. It is twin-stemmed, with a basal stem diameter of approximately 1.5m and a radial crown spread of approximately 6m. It appears to be in good health, but some ivy cover on the main stem prevents a full inspection.T2 scored 17.5 in the Council’s standard amenity evaluation assessment
T3 is a smaller, semi-mature Sweet Chestnut growing further west. It is a single-stemmed tree that reaches 10-12m in height, has a stem diameter of 56cm and a radial crown spread of approximately 4m. It has an unbalanced crown to the west, due to competition from the trees to the east. T3 scored 18 in the Council’s standard amenity evaluation assessment.
LEGAL CONTEXT
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'.
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.
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.
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.
RESPONSE TO OBJECTION/S
The response to the principle points of objection set out above is as follows:-
A Tree Preservation Order does not seek to prevent appropriate management
works from taking place. It is a mechanism by which the Council can control the type and extent of any works. The objection relates mainly to this control mechanism and the removal of the ability to carry out whatever works are considered necessary immediately.
Furthermore, a Tree Preservation Order does not prevent immediate works taking place to remove dead or dangerous parts of a tree, or works necessary to abate an actionable nuisance. Such works may take place as an exemption to the Tree Preservation Order without the requirement to make an application.
The tree was included in the Order because it overhangs the adjacent property that is being considered for redevelopment and it is not considered that the threat is diminished because of this objection. In fact, it highlights that there is increased pressure for works to the tree that could be inappropriate in arboricultural terms or detrimental to public amenity.
Whilst the need to apply for works may be inconvenient, it is considered that the risk of inappropriate works taking place remains and that the Council should retain control over works to the trees.
The objection to the Order was sent to KCC Public Rights of Way and, although no response has been received, it ha been noted that the footpath has recently been resurfaced with new tarmac, removing the trip hazard cited in the objection letter.
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. 4 of 2010.
BACKGROUND DOCUMENTS:
406/124/33 - TPO No. 4 of 2010