Agenda item

Report of the Chief Officer (Legal and Governance)

The Committee received the report of the Chief Officer (Legal and Governance) to enable Members to consider the objection received to Tree Preservation Order No. 622 (2017) located at 57 Thirlmere Road, Lancaster, and thereafter whether or not to confirm the Order.

 

It was reported that the tree in question was a single mature cherry tree established within the rear garden of 57 Thirlmere Road, Lancaster, identified as T1.  T1 was close to the boundary line with 55 Thirlmere Road and the branches extended beyond the boundary line.

 

In determining whether or not to confirm Tree Preservation Order No. 622 (2017), Members heard representations from Mr. and Mrs. McDonnell, the Appellants, Mr. Fitton, the Supporter, and the Tree Protection Officer, on behalf of Lancaster City Council.

 

Mr. and Mrs. McDonnell, the Appellants

 

Mr. and Mrs. McDonnell informed Members that Mr. Fitton had installed a new perimeter fence between the boundary of their two properties, and undertaken extensive landscaping to his garden.  During this time, the branches and roots of T1 had been chopped and cut, and put on the path throughout the garden of 57 Thirlmere Road.

 

Members were advised that the stump to T1 was approximately nine yards from their house.  Part of it was based on their property.  The new fence had been adapted to fit around the tree because of the tree’s size and location.  The branches from T1 were within a yard from their house wall and overhung the boundary fence by approximately six yards, which caused them concern, due to fears regarding the branches becoming unstable and causing damage to their property and injury to residents, their young grandchildren and pet dog.

 

T1 had caused damage to their garden by lifting their flagging by three inches and causing many of the flag stones to crack.  The tree roots could cause subsidence issues to their property if not dealt with.

 

Mr. and Mrs. McDonnell advised that they had been looking for a new shed over the past few years, but had been unable to purchase one due to not being able to position it where they would like to in their garden, due to the roots and branches from T1.  Also, renovation to their garden had been almost impossible owing to the roots from T1 lifting the ground.

 

The branches of T1 were close to their two telephone wires, which they felt was unsafe and affected the quality of the sound of their landline.  The roots were very near to two manholes and drain systems, and had possibly invaded them, which they felt needed consideration.  T1 also affected the quality of light from their rear windows.

 

Following consultation with the Chairman and with the agreement of the Committee, the Appellants, Mr. and Mrs. McDonnell, circulated papers to Members and the Supporter, Mr. Fitton, in support of their objection, which were considered by the parties.

 

After Mr. and Mrs. McDonnell’s representation, Members of the Committee had the opportunity to question Mr. and Mrs. McDonnell on their representation.

 

Once there were no further questions, the Chairman asked the Supporter, Mr. Fitton, to give his representation.

 

Mr. Fitton, the Supporter

 

Mr. Fitton advised Members that T1 had been in the garden of 57 Thirlmere Road for over 46 years and provided important nesting and foraging areas for birds, such as blackbirds, magpies, doves and other species, and food for wildlife, such as hedgehogs.  T1 also provided fruit, greenery and blossom every year. 

 

T1 had also been present in the garden of number 57 Thirlmere Road when the Appellants had moved into number 55 Thirlmere Road, approximately 24 years ago.

 

Members were advised that Mr. Fitton had witnessed Mr. McDonnell hacking at the trunk of the tree and pouring kerosene or paraffin on to the exposed trunk in an attempt to kill the tree.

 

Mr. McDonnell had complained about leaves and fruit from T1 falling into his garden and had asked for T1 to be cut down.  Mr. Fitton had informed Mr. McDonnell that he would not cut the tree down, but would manage the tree by having it professionally trimmed.  Because of this, Mr. McDonnell had refused to maintain the boundary fence.

 

Mr. Fitton informed Members that he had recently undertaken works to his garden and had put a new fence up.  On examining Mr. McDonnell’s fence, there had been a large stain next to T1, which smelled of paraffin, and, when the new fence had been installed, there had been a smell of paraffin around the tree.

 

On finishing his garden, Mr. Fitton had entered his garden one day after work and had been able to smell fresh paraffin/kerosene.  He had wiped his hand down the side of the tree where Mr. McDonald had been hacking the trunk and there was fresh kerosene/paraffin down the side of the tree.  Mr. Fitton had asked Mr. McDonnell if he had been poisoning the tree, but Mr. McDonnell had denied it.

 

Members were advised that Mr. Fitton had called a tree surgeon to his property the following day, who had advised Mr. Fitton to contact the Tree Protection Officer, as he was concerned that T1 was in danger of being poisoned or damaged and needed protection.

 

Following consultation with the Chairman and with the agreement of the Committee,
Mr. Fitton circulated papers to Members and the Appellants, showing a record of events in relation to T1, together with photographic evidence.  The papers were considered by the parties.

 

After Mr. Fitton’s representation, Members of the Committee had the opportunity to question Mr. Fitton on his representation.

 

Once there were no further questions, the Chairman asked the Tree Protection Officer to give her representation.

 

Lancaster City Council’s Tree Protection Officer

 

The Tree Protection Officer informed Members that Lancaster City Council had received a request from a member of the public/owner of a mature cherry tree growing within the curtilage of 57 Thirlmere Road, Lancaster to be considered for protection with a Tree Preservation Order.  The tree was established in the rear garden of the property, and the owner wanted the tree to be considered for protection with a Tree Preservation Order to prevent any unjudicial damage to either the above or below ground structures. 

 

The tree, identified as T1, had limited visual benefit beyond its curtilage.  However, it was entirely in keeping with its domestic situation, making a positive contribution to greening and partial screening within a heavily urbanised locality. 

 

T1 offered opportunities for a potential range of wildlife, and to provide habitat and foraging opportunities for protected species, including nesting birds and bats, which were protected under the Wildlife & Countryside Act 1981 (as amended), and the Conservation of Habitats and Species Regulations 2010. 

 

Members were advised that consequently care must be taken to ensure that protected species were not disturbed or harmed and, in so doing, avoid a criminal offence from occurring.  If protected species were present, work must not start and further appropriate advice must be sought.

 

T1 had been assessed for its suitability to be protected by a Tree Preservation Order using a Tree Evaluation Method for Preservation Orders (TEMPO).  A score of 11 had been achieved, which supported its protection with a Tree Preservation Order.

 

Tree Preservation Order No. 622 (2017) had been made on 15^th August 2017 in the interest of public amenity value and wildlife benefit.

 

One letter of objection had been received from the Appellants dated 25^th August 2017, and the Appellants had confirmed their objection in a letter dated 2^nd October 2017.  The objection related to the management of overhanging branches from T1 and claims that roots from the tree were disturbing paving stones within the rear garden of the Appellants’ property.

 

The Council had received a letter in support of the Tree Preservation Order dated 6^th September 2017 from the Supporter, Mr. Fitton.

 

It was recommended that Tree Preservation Order No. 622 (2017) be confirmed without modification to protect the single mature cherry tree, T1.

 

Following the Tree Protection Officer’s representation on behalf of Lancaster City Council, Members of the Committee had the opportunity to question the Tree Protection Officer on her representation.

 

The Appellants, Mr. and Mr. McDonnell; then had the opportunity to reply.

 

The Supporter, Mr. Fitton, then had the opportunity to reply.

 

(The Tree Protection Officer, the Appellants, Mr. and Mrs. McDonnell, and the Supporter, Mr. Fitton, 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. 622 (2017) -

 

(a)        Without modification;

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

 

(2)        Not to confirm Tree Preservation Order No. 622 (2017).

 

It was proposed by Councillor Brown and seconded by Councillor Metcalfe:

 

“That Tree Preservation Order No. 622 (2017) be confirmed without modification.”

 

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

 

(The Tree Protection Officer, the Appellants, Mr. and Mrs. McDonnell, and the Supporter, Mr. Fitton, returned to the meeting room for the decision to be announced.)

 

Resolved:

 

That Tree Preservation Order No. 622 (2017) be confirmed without modification.