Agenda item

Report of the Chief Officer (Governance)

The Committee considered a formal written objection to a decision of Lancaster City Council under Section 198 of the Town and Country Planning Act 1990 making an Order in respect of two mature trees established within the curtilage of Shenstone, The Green, Over Kellet, identified as T1 and T2 and being Tree Preservation Order (TPO) No. 555 (2015), and thereafter whether or not to confirm the Order.

 

It was reported that the Council had made TPO No. 555 (2015) on 3^rd September 2015 following the Council’s objection to the removal of two mature sycamore trees, the subject of a Section 211 notification no. 15/0105/TCA.  Both trees had been found to be free from significant pests, disease and structural defects to otherwise justify their removal.  Both trees were considered to have important public amenity and wildlife value to justify their ongoing retention and protection.

 

The formal written objection had been received from the property owner and Appellant, Mr. Paul Maguire. 

 

Members were advised that the Appellant had been unable to attend the Appeal hearing due to being away on holiday at the time of the meeting.  In determining whether or not to confirm the Order, Members considered a written representation submitted by the Appellant, which had been emailed to Members prior to the meeting.  A paper copy of the written representation was circulated at the meeting and considered by Members.

 

Appellant’s Representation

 

In his written representation, the Appellant had advised the Committee as follows:

 

·         The TEMPO Assessment score was 15.  The Appellant’s understanding was that a TEMPO score of 16+ merited a definite TPO, and that a score of 12 to 15 meant that a TPO was ‘defensible’.  Therefore objective scoring did not show a ‘definite’ TPO.

 

·         The two sycamores, T1 and T2, dominated the domestic garden, and were out of proportion for a domestic garden.  They were not native trees.

 

·         The size of the root footprint and its proximity to the house was of concern to the Appellant, as was the tree falling in severe weather and causing injury, or even death.

 

·         The canopy in the summer was enormous and blocked a significant amount of light in the Appellant’s garden and those of his neighbours.  His neighbours had written to the Council in support of the Appellant’s application and the Appellant asked that this be taken into consideration.

 

·         Much emphasis was given to the effect of trees on the local amenity within a Conservation Area.  The trees were only just visible from the Green to the front of the house.  If the sycamores were felled, the native oak and beech would thrive.  The oak, in particular, was showing signs of distress, as acknowledged by the Tree Protection Officer, who had advised the Appellant that if he was unsuccessful in his application to fell the sycamores, should consider an application to fell the native oak.

 

·         Wildlife would continue to thrive if the sycamores were felled.  There were two mature beech trees, two rowan trees and a large oak and a number of mature fruit trees.  The canopy would therefore be maintained.

 

·         The emphasis on the visual change was subjective and this had been made on a short visit to the property by one person.  The Appellant and his neighbours lived with the trees permanently and felt that there would be no negative impact visually if they were felled.  In fact, the opposite.  It could not be objectively proven that wildlife would be detrimentally affected.  This, again, was subjective speculation and opinion.

 

·         The sycamores were two imposing trees in a domestic garden.  All arguments for the TPO appeared subjective.  The TEMPO score at least allowed counter-argument to the TPO, as referred to previously. 

 

The Appellant asked the Committee to consider his opinion, as someone who lived with the trees on a day-to-day basis.

 

Lancaster City Council’s Tree Protection Officer

 

The Tree Protection Officer presented the case on behalf of Lancaster City Council, and reported that the Council had authority under Section 198 of the Town and Country Planning Act 1990 to make an Order in respect of a tree or group of trees if it appeared that it was expedient, in the interests of amenity, to make provision for the protection of trees in its area.

 

TPO 555 (2015) had been made regarding two sycamore trees, which were established within the rear garden of the Appellant and within the local Conservation Area.

 

The Appellant had submitted a Section 211 Notice to fell both trees because of the shading effect of their canopies on the main dwelling when the trees were in leaf.  There were no other arboriculture reasons cited to support their removal.

 

The property had been extended following planning consent granted on 8^th April 2011.  As part of the assessment of the application, the trees had been duly considered, including their relationship with the existing dwelling, the wider locality and the Conservation Area.  A total of six trees had been agreed for removal at that time; five because of arboriculture reasons; and one tree had been felled to accommodate the development.  All other trees, including the two sycamore, had been agreed for retention and protection, given their important amenity value and wildlife benefit.

 

The development had been duly completed.  It was understood that the Appellant had bought the property approximately nine months ago.  The sale of the property had been widely recognised as a significant threat to trees, either through direct removal or inappropriate management.

 

The Council had not received any written notifications to undertake works to either of the two trees in question since planning consent had been granted in 2011.  This would suggest that the relationship between the trees and dwelling was not incongruous.

 

T1 and T2 were sycamore that had grown and matured to make an important contribution to the character and appearance of the property, the wider public domain and the Conservation Area.  Their presence was clearly apparent.  Their canopies could be seen well above the roof of the main dwelling and also to the side.  There were other trees within the rear garden.  However, it was T1 and T2 that were visible.  Such large, important landscape trees, if removed, could not be mitigated with new planting.

 

The Tree Protection Officer commented on the main issues raised in the Appellant’s representation to the Committee, as follows:

 

1)         Sycamore were a resilient species believed to be naturalised, having been present in Britain for over 400 years.  An alternative school of thought believed that sycamore were, in fact, a native species.  They were a large leafed species, capable of generating shade when in leaf, April to October.  Expectations had to be realistic, and trees caused shade when in leaf.

 

            Lancaster City Council operated a Tree Policy (adopted 2010), which set out its own position with regard to the management of its trees.  Lancaster City Council would not generally fell trees because of shading. 

 

            Members noted that amenity value was not determined by tree species.

 

2)         The trees in question had been assessed in detail as part of the 2010/2011 planning application previously mentioned.  Tree roots did not generally cause direct damage to underground structures, particularly if those structures were intact and in good condition.  The foundations of the extension were new and it was assumed, as such, that they were in good condition, having only been recently built.  Tree-related subsidence occurred only on a highly plastic clay soil, and the Tree Protection Officer was unaware of highly plastic clay soils being associated with the property in question.  As such, tree related subsidence could not occur.

 

3)         Anyone who had responsibility for trees was always advised to have them regularly assessed by an individual suitably trained and experienced to carry out such inspections.  Recommendations for maintenance work should be undertaken, subject to any existing constraints.

 

            The proximity of trees to a building was not, in itself, justification to fell healthy trees, particularly trees that conveyed important amenity value.  If that were to be the case, urban areas would be devoid of trees.  These were exactly the areas that required more trees and not less.  Trees were entirely sustainable in close proximity to buildings.

 

4)         Trees inevitably created shade when in leaf.  Typically for broadleaf trees, this may be a period of up to six months a year.  The Appellant’s neighbours had written to Lancaster City Council following the Order being served.  Their letters had failed to meet the criteria set out in the Regulation 3 Notice and, as such, had not formed part of the appeal process.

 

5)         The two trees in question were visible from the wider public domain, despite being established within the rear garden and positioned, in part, behind the main dwelling.  There was no requirement within the Town and Country Planning Act 1990 for every tree to be seen, or all parts of any given tree to be seen, from the public domain.  The fact that both trees could be seen beyond the property was testament to their significant contribution to the wider locality and the Conservation Area.  Their renewal would inevitably have the potential to generate a negative impact on the wider public domain.

 

Regardless of species, if a tree was in a poor overall condition, for example showing signs of stress, including canopy dieback, or accumulation of deadwood, appropriate action should be taken – both sycamore trees were in better health, vitality and offered a longer, safe, useful life potential than the oak tree to which the Appellant referred.  It would be unwise to assume the existing oak would thrive in the absence of T1 and T2.  It should also be noted that European beech were not of local provenance and did not naturally occur in this area of Britain.

 

6)         The older and larger trees were, the greater the potential opportunities for wildlife.  The removal of T1 and T2 would result in a net loss of tree cover and net loss of opportunities for wildlife, including protected species, such as nesting birds and bats, which were protected under the Wildlife and Countryside Act 1981 (as amended 2010).

 

The Tree Protection Officer advised Members that she was a qualified arboriculturalist, who was responsible for the management of some 600 TPOs, and had made over 250 new Orders.  As a Local Authority, the Council was able to demonstrate a planned and objective approach to making new Orders.

 

It was recommended that TPO No. 555 (2015) be confirmed without modification in the interests of amenity value and wildlife benefit.

 

Following presentation of her case, Members asked questions of the Tree Protection Officer, which were suitably answered.

 

(The Tree Protection Officer 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. 555 (2015)

 

(1)        Without modification;

(2)        Subject to such modification as is considered expedient.

 

(2)        Not to confirm Tree Preservation Order No. 555 (2015).

 

It was proposed by Councillor Hanson and seconded by Councillor Yates:

 

“That Tree Preservation Order No. 555 (2015) be confirmed without modification.”

 

Upon being put to the vote, Members voted unanimously in favour of the proposition, whereupon the Chairman declared the proposal to be clearly carried.

 

(The Tree Protection Officer returned to the meeting for the decision to be announced.)

 

Resolved:

 

That Tree Preservation Order No. 555 (2015) be confirmed without modification.