Report of the Chief Officer (Governance)
The Committee considered formal written objections to a decision of the Council under Section 198 of the Town and Country Planning Act 1990 (T&CPA 1990) making an Order in respect of an area of trees established on land under the control of Network Rail adjacent to the railway and to the rear of residential properties identified as numbers 25-47 Hazelmount Drive, Warton (identified as A1) being Tree Preservation Order (TPO) No. 523 (2013) and thereafter whether or not to confirm the Order.
It was reported that Tree Preservation Order No. 523 (2013) had been served by Lancaster City Council following a complaint from a member of the public regarding damage and the felling of trees from within the site. Concerns had been expressed that further damage may occur.
The land owners of the site and trees in question had not objected to TPO No. 523 (2013). The City Council had received a letter of objection dated 13th October 2013, signed by residents at Nos. 27, 29, 31, 35, 37, 39, 41, 43 and 45 Hazelmount Drive, Warton. The owner/occupiers at Nos. 25 and 43 Hazelmount Drive had made additional submissions objecting to TPO 523 (2013). The owner/occupiers of 33 and 31 had submitted additional comments that did not constitute formal objections.
Appellants from Hazelmount Drive were present at the meeting, and Owen Richards of 29 Hazelmount Drive, Ann Blundell of 43 Hazelmount Drive, Gerry Bingham of 41 Hazelmount Drive and Charles Wilkinson of 37 Hazelmount Drive spoke to the Committee. Members considered the written objections received from the residents of 27-47 Hazelmount Drive, as follows:
· The condition of the trees was poor to fair, due to a lack of management, adding little or no amenity value to residents, and could not be appreciated by the general passing public, because there was no right of way. There were sufficient healthier, larger, more established trees in the area for residential/public enjoyment.
· The trees currently formed a nuisance and would be a future nuisance to residents and their properties, and had clearly outgrown their context, having an adverse effect on adjacent trees of better quality.
· The trees were in secondary growth, due to being cut down approximately 10 years ago, and had a limited lifespan due to invasive host plants, such as ivy.
· A Tree Preservation Order on the trees would drastically reduce residents’ enjoyment of their gardens due to lack of sunshine/light, and would prevent other plant growth.
The owner of 25 Hazelmount Drive had written in objection and had commented as follows:
· If any of the trees affected by the Order became overbearing, thus having a detrimental effect on the use and enjoyment of the owner’s property, they would have the freedom to attend to the same. Network Rail had attended to any problematic trees at their request in a timely manner, and they felt that having to obtain the Council’s consent would be time-consuming, inconvenient and unnecessary.
· If the trees were not properly maintained, the saleability of their property could be affected in the future.
· The trees were mainly deciduous and offered no screening in autumn and winter;
· The deciduous nature of the majority of the trees meant that they offered no shelter for wildlife throughout autumn and winter.
· Their vegetable patch could be compromised if the woodland grew out of control and restricted light.
· The loss of the trees would be compensated by residents tailoring their gardens to attract wild birds.
· The amenity value of the trees was questioned; the trees were generally visible to the public from Shore Road and the footpaths adjacent to the River Keer; however, their appearance and amenity value was compromised by the presence of the railway.
· Network Rail undertook regular maintenance on the land in question and tended to problematic trees as and when required, but they would no longer have this power once the order was imposed, without consulting the City Council.
· Hawthorn, which was considered to be a shrub, grew directly to the rear of their property, and they hoped this would not be protected by the Order.
The owner of 43 Hazelmount Drive, had commented as follows:
· The deciduous trees referred to consisted mostly of dead hawthorns, which had become evergreen because they had been choked to death by ivy.
· The trees encroached on their conifer hedge and the ivy was beginning to invade their hedge making it almost impossible to maintain.
· They would like to see well-managed and maintained trees, which would mask the railway sidings from their view.
· Since they had moved into their property, Network Rail had done nothing; the best conservation schemes, and in the interest of wildlife, management, control, coppicing, etc. of vegetation was needed and not the indiscriminate “preservation” of dying trees.
· A huge ash tree shaded their garden and the slightest breeze shed branches over one area, rendering that patch unusable.
· Last year, Network Rail had been contacted, with some difficulty, as a third of the ash tree hung over their garden, and was getting dangerously near their greenhouse; the tree surgeons had trampled on their garden and butchered the offending branches with total disregard for the shape and balance of the tree.
The owners of 31 and 33 Hazelmount Drive had submitted additional comments that did not constitute formal objections, as follows:
31 Hazelmount Drive, Warton
· Following the Tree Protection Officer’s letter dated 9th October 2013, prohibiting lopping and cutting of trees, nine trees had been lopped off at a level of the top of the ranch-style fence at the edge of their land; the work had been carried out when they and their neighbours at 29 Hazelmount Drive had been away from their homes and unable to object to the actions of the culprits.
· In order to prevent further illegal works, the Tree Protection Officer had been invited to observe the extent of the nuisance the trees had on the lives of the residents of 25-47 Hazelmount Drive.
33 Hazelmount Drive, Warton
· The majority of the mature ash tree on the land belonging to Network Rail was directly behind their property, and they would like Network Rail, in particular, to retain the tree and could imagine no objections to this in terms of rail/leaf hazard, as it had been left to mature for many years to date and was a substantial distance away from railway lines.
· The tree was important, not least due to the threat that ash trees were currently under from ash die-back; it had also been a resting spot for a bird of prey; living within the Area of Outstanding Natural Beauty, they would hope that the character would be maintained.
· There were other trees/bushes, which grew on the Network Rail land in question, forming a natural line along the edge of the Tree Preservation Order, which retained an important scrub for wildlife.
· They would welcome the opportunity to retain their rear boundary hedge line height, sight-line and general tidiness at its current height.
· This could be affected by plant growth (particularly sycamore, but also wild rose, bramble and hawthorn), which grew directly behind the hedge line on the Network Rail land in question and could create an unsightly and untrained growth without management.
· They had contacted Network Rail about the possibility of purchasing the land directly behind their property (following the line of the side boundaries straight down either side), now subject to the above order and awaited their response.
· Whilst the land remained the property of Network Rail, they would welcome clarity on the responsibility which they held to keep their land in reasonable tidiness, so that it did not have a detrimental effect on their residential property, yet retained the wildlife and general amenity value.
· If it was possible for them to ultimately own the strip of additional land, they would wish to be able to maintain and retain the current character of the area.
· In their opinion, both the amenity value of the area and the residential desirability was enhanced with the maintenance and management of unsightly suckers and ungainly growth, which would seek to be able to carry out themselves.
Members asked questions of the Appellants.
Tree Protection Officer
The Tree Protection Officer presented the case on behalf of Lancaster City Council.
It was reported that TPO No. 523 (2013) related to an area (A1) of trees established on land under the control of Network Rail. The land in question was established to the rear of twelve residential properties identified as Nos. 25-47 Hazelmount Drive, Warton.
The trees were mainly broadleaf deciduous species, ranging from young to mature. They were clearly visible from public vantage points and the railway, and provided valuable greening and screening between the railway site and the public domain. The land adjacent to the railway lines provided important public amenity and wildlife habitat.
A belt of trees further to the east, also established on Network Rail land, was subject to TPO No. 407 (2007) and both groups of trees maintained canopy cover along the railway network to the rear of properties along Hazelmount Drive, Warton.
It was reported that the trees had significant potential to support a range of wildlife communities, including habitat and foraging opportunities for protected species, nesting birds and bats. Carnforth Ironworks site was immediately to the east. The site was designated a Biological Heritage Site (BHS). TPO No. 407 (2007) was contained within the BHS.
Members were informed that the trees within the site had been assessed in terms of their amenity value using the Tree Evaluation Method for Preservation Orders (TEMPO) and, with a score of 14, the use of a Tree Preservation Order was described as “defensible”.
It was reported that the City Council considered it expedient in the interests of amenity to make TPO No. 523 (2013) to ensure the protection and sustainability of an important belt of trees and green infrastructure, and to make provision for the preservation of the woodland in question under Sections 198, 201 and 203 of the Town and Country Planning Act 1990, for the following reasons:
· Important public visual amenity;
· Important landscape feature in keeping with the character of the immediate and wider locality, immediately adjacent to a Biological Heritage Site and other off site trees subject to a TPO;
· Significant potential to provide important habitat and resources for a range of protected and unprotected wildlife communities;
· Ongoing threat from inappropriate management of trees.
Members were advised that a TPO did not prevent or obstruct good arboriculture practice and management of trees, as set out within current arboriculture standards of best practice (BS 3998 2010). The application process to undertake works to protected trees was streamlined and there were no charges associated with making any such application. A TPO excluded shrubs and ‘other’ vegetation that may be associated with some trees, such as ivy and brambles, which were not protected by a TPO
The Tree Protection Officer referred to the grounds for the collective objection and advised that:
· The general condition of trees was sufficient to be incorporated within a TPO. Any tree that was ‘dead’ or in a ‘dangerous’ condition (in arboriculture terms) was exempt from a TPO. The trees were visible from a number of public vantage points in the wider landscape. Public access to protected trees was not a requirement of a TPO.
· A TPO did not prevent or obstruct reasonable and appropriate management of protected trees; management of this nature remained the responsibility of the landowner, Network Rail. A TPO overrides Common Law Rights to prune back overhanging branches, but that is not to say that consent could not be sought from the local authority for such work to be carried out, in line with current standards of best arboriculture practice.
· Ivy did not kill trees. It was, however, an important plant in ecological terms, providing year round habitat and shelter for a range of wildlife species and offering one of the last winter feeding resources for bees. Ivy was not protected by a TPO.
It was reported that Network Rail, the landowner, had responsibility for the management of the trees and land in question, and the management of the land should be discussed with them. Written authorisation would be required prior to undertaking work affecting protected trees only.
The Tree Protection Officer advised that, in her professional opinion, the belt of trees offered sufficient amenity value to warrant and justify continued protection with TPO No. 523 (2013) and, as such, the order should be confirmed without modification.
Members asked questions of the Tree Protection Officer.
(The Tree Protection Officer and Appellants left the meeting room whilst the Committee made its decision in private.)
Members considered the options before them:
(1) To confirm Tree Preservation Order No. 523 (2013)
(a) Without modification
(b) Subject to such modification as is considered expedient
(2) Not to confirm Tree Preservation Order No. 523 (2013).
It was proposed by Councillor Hill and seconded by Councillor Graham:
“That Tree Preservation Order No. 523 (2013) be confirmed, subject to exclusion of the hawthorn bushes.”
Upon being put to the vote, 5 Members voted in favour of the proposition and 1 against, whereupon the Chairman declared the proposal to be carried.
(The Tree Protection Officer and Appellants returned to the meeting for the decision to be announced.)
That Tree Preservation Order No. 523 (2013) be confirmed, subject to exclusion of the hawthorn bushes.