MAIDSTONE BOROUGH COUNCIL
PLANNING COMMITTEE
10 OCTOBER 2013
REPORT OF THE HEAD OF PLANNING AND DEVELOPMENT
REFERENCE: Tree Preservation Order No. 2 of 2013 Date made: 18 April 2013
TITLE: Tree at junction of London Road and Buckland Hill, Maidstone
CASE OFFICER: Nick Gallavin
Tree Preservation Order (TPO) No.2 of 2013 was made under Regulation 4 of The Town and Country Planning (Tree Preservation) (England) Regulations 2012 to protect one Horse Chestnut. 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
Government Policy: National Planning Policy Framework (2012)
DCLG, Tree Preservation Orders: A Guide to the Law & Good Practice
Local Policy: Maidstone Borough Council Interim Approval of Maidstone Borough Local Plan Policies (13 March 2013) – Policy CS13
Maidstone landscape Character Assessment (March 2012 amended 19 July 2013) and Supplement (2012 – Saved Sections of the Landscape Character Assessment and Landscape Guidelines 2000)
BACKGROUND
History/context
In March 2013, Landscape Officers became aware of proposals for road widening linked to a planning application at Baltic Wharf, St Peter’s Street, reference MA/13/0297 (An application for detailed planning permission for the change of use of, and alterations and additions to, the Powerhub building). The road widening proposals would result in the removal of the tree. As a result, it was considered expedient to protect the tree by the making of a TPO.
The grounds for the making of the order were stated as follows: -
The Horse Chestnut tree is a large, mature specimen located in a very prominent position on one of the main routes into the town centre. The tree is potentially under threat of felling from proposals for road widening linked to planning application MA/13/0297. Therefore, it is considered expedient to make the tree the subject of a Tree Preservation Order.
The six month provisional order expires on 18 October 2013, after which the order automatically lapses if not confirmed.
OBJECTIONS and REPRESENTATIONS (objections and letters of support from those parties served with the order)
The TPO was served on the owner/occupier of the land in question and any other parties with a legal interest in land affected by the tree.
One objection has been received to the order, within the statutory 28 day period from its making by the applicant for MA/13/0297. The full text of the objection is reproduced below:-
13th May 2013
Dear Sir,
The Maidstone Borough Council Tree Preservation Order No. 2 of 2013 – Tree at Buckland Hill/London Road junction, Maidstone
We refer to the temporary Tree Preservation Order (TPO) made by the Council on 18th April, 2013, a copy of which has been served on our company, Baltic Wharf (Maidstone) Ltd.
The temporary Order refers to planning application MA13/0297 made by Baltic Wharf (Maidstone) Ltd and the highway improvement proposals in that application for the Buckland Hill/London Road junction. The improvement would require the removal of the tree subject to the Order. The Council allege that this aspect of the planning application represents a threat to the tree.
Baltic Wharf (Maidstone) Ltd objects to the TPO as disproportionate and inappropriate. The tree is on highway land in the ownership or control of Kent Highways. It is not open to Baltic Wharf (Maidstone) Ltd to remove the tree without the express permission of Kent Highways by way of a legal agreement pursuant to s278 of the Highways Act. Such permission has not and will not be given until there is a grant of planning permission for application MA/13/0297. The tree cannot therefore as a matter of fact be under threat.
The decision whether to grant or refuse permission for application MA/13/0297 currently rests with your Council. The Council’s Planning Committee will address all aspects of the development proposals in the application in coming to a determination. This includes:
· Providing a viable use for the Grade 2 listed Powerhub Building which has significant structural problems and has failed economically in its use as a managed workspace
· Creation of an estimated 350 new jobs on the Baltic Wharf site
· Regeneration of a major town centre site
· Delivery of a package of significant public realm improvements, including providing the missing link in the existing riverside footpath
· Highway improvements to make sure that traffic conditions local to the Baltic Wharf site and at the bridge gyratory and Buckland Hill/London Road junctions are still acceptable if the redevelopment goes ahead
It is within this context that the loss of the tree now subject to a temporary TPO needs to be considered. If the proposed Buckland Hill/London Road improvement is seen as a necessary part of the Baltic Wharf redevelopment the loss of the tree will need to be weighed in the balance amongst all other considerations material to the determination of the application.
Furthermore, the Baltic Wharf redevelopment proposals do mitigate for the loss of this tree. The application contains proposals for tree planting along the St Peter’s Street frontage of that site and other landscaping along the riverside where none currently exists. This planting will provide a significant public realm improvement and mitigation for the loss of the tree.
In earlier e-mail correspondence with the Council about the TPO, Baltic Wharf (Maidstone) Ltd raised two questions:
1) Will the TPO now be a matter for consideration by the Planning Committee (for confirmation or otherwise) when it considers Baltic Wharf application MA/13/0297 as the matters are directly linked?
2) Will a planning permission for application MA/13/0297 at Baltic Wharf override the TPO regardless of the stage reached in considering the TPO?
Following a meeting on 3rd May, 2013, the Council undertook not to progress the TPO pending a decision on application MA/13/0297, provided this decision was made within the 6 month timescale for confirming the temporary TPO. It is for the Council now to consider whether the Planning Committee meeting that determines application MA/13/0297 should at the same time consider whether or not to confirm the TPO. Question 2 above also raises a wider legal point that does require clarification which is whether a TPO can apply to trees within a highway boundary and override the statutory powers of a highway authority to carry out highway works as permitted development. These permitted development rights are transferable to developers under s278 agreements.
We await a formal response from the Council on these two questions.
We would also ask that receipt of this objection to the proposed TPO is acknowledged by the Council confirming that it is validly made within the prescribed time for objecting.
One letter in support of the TPO has also been received from the adjacent landowner at 42 Buckland Hill. The reasons for this support are reproduced below:-
· The tree is a beautiful mature specimen that is a local landmark and enhances the street scene. Its loss would be very detrimental to the character of the area.
· Two adjacent mature Lime trees have already been lost in recent years and their replacements have proved tobe completely unsuccessful in improving or even maintaining the local street scene.
· The Horse Chestunt acts as an invaluable baffle against the increasing levels of noise from traffic we tolerate at this property.
· Pollution levels on the London Road have greatly increased in the 15 years in which we have owner our property and the air quality has become markedly worse. Removing the Horse Chestnut would only add to the levels of noise and pollution tolerated by local residents.
The letter included further comments, but these referred to the planning application MA/13/0297, were not directly related to the Tree Preservation Order and have therefore been omitted from this report.
CONSIDERATIONS
SITE AND SURROUNDINGS
The tree is growing in the tarmac pedestrian footpath at the junction of the A20 London Road with Buckland Hill, on the south side of the junction. The A20 London Road is one of the main roads between the Town centre and the M20 and within the urban area. Several other mature trees are present in the vicinity, including mature Limes in the grounds of the adjacent property.
DESCRIPTION OF TREE
The Horse Chestnut is a mature, prominent specimen, highly visible from London Road, Buckland Hill and Somerfield Road. It reaches a height of approximately 14 metres and has an average crown radius of 7 metres. The main stem forks at 2.5 metres height, giving rise to a balanced crown of good form and structure. However, one main limb on the southwest side of the crown is dead. A historic large pruning wound with associated decay is present at the base of this limb, which may be related to its demise. Otherwise, visual inspection suggests that the rest of the tree is generally in good health. There is widespread evidence of leaf damage by the Horse Chestnut leaf miner throughout the crown – a common and widespread insect pest of Horse Chestnut, which results in browning of leaves and early leaf fall, but this is a largely cosmetic impact with little effect on the tree’s health.
In an amenity evaluation assessment of the tree, using the Council’s standard method, the tree scored comfortably above the benchmark score, indicating that the tree meets the amenity criteria for protection by a TPO.
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.
DISCUSSION OF CONSIDERATIONS AND RESPONSE TO OBJECTIONS AND REPRESENTATIONS
In this case, it is important to recognise that the only matter for consideration is whether the Tree Preservation Order should be made permanent (confirmed). Whilst the Order was clearly made in response to the potential felling of the tree as a result of the proposals under planning application MA/13/0297, this report is not a consideration of the merits of that planning application. Therefore, any discussion of the details of that application are irrelevant and as such, are deliberately omitted here.
Similarly, this is not a consideration of a proposal to fell the tree. The felling of the tree could form part of the junction improvements in the future, but that is a matter for separate discussion in the context of a relevant planning proposal.
The matter for determination is whether the tree is of sufficient value to merit protection and if so, whether it is expedient to continue its protection. Its amenity value is not disputed in the objection received and the results of visual inspection and amenity assessments indicate that it merits protection as an individual of good public amenity value.
Whilst it would have been preferable to consider the issue of TPO confirmation alongside the planning application, this is not possible as the provisional TPO is due to expire on 18th October 2013.
The matter of expediency is somewhat complicated by the planning issues. The planning application MA/13/0297 is currently undetermined. Baltic Wharf (Maidstone) Ltd. argue that the tree is not under threat as a matter of fact. Whilst it might not be immediately under threat, there is a clear intention to fell it as part of the junction improvements proposed and the point at which it would become immediately under threat is currently unclear. Having a TPO in place will help to ensure that full consideration has been given to the matter of its removal before a final scheme is approved.
The tree and the junction improvements proposed as part of the planning application actually lie outside of the application site boundary. Normally, where planning consent is granted that necessitates works to protected trees a separate application under the TPO is not required.
It is not clear whether this would apply to protected trees outside of an application site boundary in connection with a s106 agreement relating to highway improvement works. However, if the Council requires junction improvements as a condition of a planning consent, either through planning condition or legal agreement, it follows that the matter of the removal of the tree should have have been fully considered in the determination of the planning application. If it transpires that a separate formal application under the TPO is then required before the tree removal can proceed, it is very unlikely that consent would then be refused to fell the tree, as the Council would have already considered the loss of the tree in the context of achieving the junction improvements. Clearly this issue is not a consideration of this report. However, the ongoing protection of a confirmed TPO should at least ensure that it possible removal is noted in consideration of any proposed scheme.
It is asked in the objection:-
“whether a TPO can apply to trees within a highway boundary and override the statutory powers of a highway authority to carry out highway works as permitted development (and whether) these permitted development rights are transferable to developers under s278 agreements?”
TPOs can apply to any trees and a TPO application is usually required in relation to permitted development rights. However, there are exceptions to the need to obtain the consent of the local planning authority before carrying out works to protected trees, and certain statutory undertakers, including highway authorities, have some powers to carry out their functions without the need to apply for works to protected trees. The view of Kent Highways has been sought on this issue and their response was that:
The Highway Authority’s permitted development rights mean that it can remove a TPO tree as part of a scheme and would not need to apply for planning permission to do so. These rights are transferred under a s278 agreement but this would only be entered into if it is supported by a planning permission. Alternatively, the Highway Authority could carry out the works covered by funding through a s106 subject to a copy of the planning permission before the work is progressed.
However, legal advice has been sought by the Highway Authority to confirm the situation. Any such further advice will be provided in an urgent update to this report.
SUMMARY
The considerations relating to planning consents and permitted development rights do not add significant weight to the argument to not confirm the TPO on the basis that it is not necessary and therefore not expedient to continue protection.
Continuing protection with a TPO would bring certain benefits; it would increase recognition of the amenity value of the tree in the consideration of any junction improvement scheme and might lead to the exploration of alternative options that include the retention of the tree. It would also help to secure replacement planting in the event that a scheme is approved that involves the removal of the tree.
CONCLUSION:
For the reasons set out above it is considered that:
The amenity value of the Horse Chestnut tree and the ongoing uncertainty about its future outweigh the grounds for objection to the making of the Order.
RECOMMENDATION:
CONFIRM WITHOUT MODIFICATION Tree Preservation Order No. 2 of 2013.