Agenda item

Mrs S B Morris spoke on behalf of residents as their request to speak in person had been denied. It was stated that residents had chosen to move to south-side properties on Marstown Avenue due to the rear-view of the land in respect of the trees and wildlife within. The trees were reported to provide an effective sound-barrier to the noise generated from the railway line and screening from the properties adjacent. The Forestry Commission was cited in that the removal of trees may cause subsidence from the movement of trains. The high-water table upon which the properties were sited was said be at risk due to the stability provided by the trees in the clay grounding. The Forestry Commission attended the site to inspect on three occasions and concluded the site was worthy of protection, recommending tree management as opposed to felling. They warned that the removal of trees may affect the railway embankment and the structural integrity of the properties. She claimed that the residents’ insurers had advised a claim would be instigated against the Council to remedy any damage caused insofar as not retaining the trees and confirming the TPO, as a recent local precedent dictated. The resident’s thanked Members for their consideration. Mrs Morris summarised that the site provided a public amenity to residents either side on both Marstown Avenue and Kirkdale Road and invited Members to confirm the TPO for the reasons aforementioned.

A Member enquired as to why the residents were not permitted to speak in person at the meeting. The Chair advised that such a granting of permission was contrary to the Standing Orders in respect of consideration of TPO’s.

A Member sought a point of clarification from the speaker as to the precedent cited in her report. It was confirmed that the precedent referred to was an historic claim against the Council for subsidence in the said area of land.

The Chair advised Members that the issue before them was whether to confirm or otherwise the TPO and not the process or reasons for delays for which the report was put before Members for their due consideration.

The Planning Control Manager summarised the contents of the report for agenda item 6 (pages 10-12). He directed Members attention to a site visit that took place some six weeks ago. The site was described as a now unkempt, former builders’ yard. The TPO was originally made during the Christmas period at which time work was being undertaken. He referred Members to the report, citing that representations had been received for and against the confirming of the TPO (at page 11). The Council’s arboriculturist had attended the site and had not recommended the making of a TPO due to the tree’s poor quality or low public amenity value (at page 12). The oak tree positioned to the east of the site had since been removed due to its adverse structural impact on the courtyard of garages positioned nearby: this tree alone was considered sufficient to warrant a TPO prior to its removal.

The Planning Control Manager advised Members that the points raised by the speaker (viz. water-table level, acoustic-barrier and screening) were not before Members’ consideration and/or sufficient justification to override the recommendation of the report not to confirm the TPO. He confirmed that the line of sight from the railway bridge to the site was approximately 70-80 metres and obscured by a secondary line of trees positioned by Network Rail along the embankment, rendering the trees barely visible. The poplar trees that were visible close to the boundary with Network Rail had been pollarded and the recommendation was to re-pollard if further works were to be undertaken. The area of land in question was reported to provide little public amenity value to justify the continued protection of the trees thereon.

A Member agreed that the trees onsite required an extensive amount of work. He raised a concern regarding the transpiring of work required to a felling of a total of 12 trees on the site as of the 29 December 2014 resulting in the provisional making of the TPO. The felling has been carried out by means of services rendered by a tree surgeon (applied loosely) employed by the land’s proprietor to undertake work. It was stated that the Planning Control and Enforcement Officer attended the site on behalf of the Council on four occasions since the initial making of the Order in response to reports of chainsaws being taken to the land. The Forestry Commission was cited to have issued a ‘no felling’ direction, in place until September 2015, during which time the oak tree was nevertheless felled. The Member made reference to an unverified case imminently before the courts taken by the Forestry Commission against a land owner in similar circumstances. For the aforesaid reasons, the Member opined that there was an imminent danger and therefore a ground for the TPO to be confirmed.

The Member further stated that Natural Britain had attended the site and confirmed the presence of bats and slow-worms, the later being protected under the Wildlife & Countryside Act 1981 as a ‘priority species’. The removal of trees was therefore reported to potentially stifle the biodiversity of the land and engager wildlife. In respect of public amenity value, it was stated that the site was visible irrespective of distance and cited a notable decision of other authority which, in confirming a TPO, found public amenity value in the case of a single resident’s line of sight from a rear-garden area. It was further opined that the sound-barrier provided by the trees in question did harbour some of the noise generated and that its utility in this regard was yet to be proved by the Planning Control Manager. He noted that if the TPO was confirmed, the likelihood of the proprietor of the land appealing to the High Court was minimal due to the financial implications accrued to him. The Member submitted there was sufficient justification to confirm the TPO for the aforementioned reasons and moved the proposal for the same.

A Member stated that the site was an important wildlife corridor, one of only a few in the Borough leading-off the railway embankment, and a forging area and habitat for known bats and slow-worms. He stated that if the TPO were to be confirmed, it would not prevent the necessary work to be undertaken in the future (subject to an application) and would preserve the sound-barrier provided. However, to not confirm the TPO would be the incorrect decision, adding that a number of trees onsite were particularly attractive specimens and different to those found elsewhere in the Borough. The Member approached the question on the balance of probability insofar as the likelihood of the proprietor felling the remaining trees onsite if the TPO were not to be confirmed, citing past experience as an indicator of near certainty of the same. The fact that the trees in question could be seen from 11 south-side properties on Marstown Avenue should be given sufficient weight in favour of the argument to confirm the TPO. The secondary line of trees alongside the railway embankment were said to be subject to the discretion of Network Rail who, in the winter past, had removed similar trees from the site at the old station on Station Road. He summarised the reasons aforementioned and stated that on the balance of probability, it would be wise to confirm the TPO and to invite the applicant back to undertake the necessary work. The Member seconded the proposal for the TPO to be confirmed.

The Chair stated that he appreciated the views of Members and so to provide greater balance, noted that the site was mostly scrubland littered with waste (e.g. bricks, pallets etc.) which required clearing due to a risk of contamination impacting on the biodiversity. He stated that if the applicant did exercise his right to appeal, a cost implication would too be borne by the Council and so warned Members on the prudent-use of public funds in such matters.

A Member sought clarification as to the definition of a tree and the numbers of trees seeking preservation in the context of an Order made covering all trees located in the area defined on the plan provided (at page 10). He stated that much of the biodiversity onsite may be supported by scrub and other forms of non-tree vegetation present.

The Planning Control Manager advised Members that a detailed survey of the site had not been undertaken so the exact number of trees under the Order was not known. He stated that, according to the regulations, the definition of a tree and the size of the area covered by an Order was determined by a prescribed height and girth of the tree(s) for the purposes of a TPO.

The Member sought comment from the Officers in respect of the Council’s possible legal responsibility in view of both opposing parties’ contentions that a liability to the Council may potentially arise either way (i.e. clay-soil issues due water retraction, unmanageable damp areas due to light blockage, and potential hazards to the railway at page 11), described as a “no win” situation.

The Planning Control Manager advised Members that no liability would arise against the Council. The proprietor of the land would assume responsibility in the event of any subsistence and/or ground-shrinkage should the TPO not be confirmed and trees subsequently removed. An issue of liability in respect of the felled oak tree was now said to be non-existent insofar as, in preventing the proprietor from felling the tree, the Council would have been liable for its adverse structural impact on the courtyard of garages positioned nearby (as confirmed by a Court Order). This is what formed part of the representations received from concerned residents on Marstown Avenue.

The Monitoring Officer confirmed the Planning Control Manager’s advice.

Councillor G S Atwal vacated the Council Chamber at 07:32 PM.

A Member sought a more definitive statement from the Officers as to the exact extent of the Council’s legal responsibility insofar as if the TPO was to be confirmed, whether the Council would be liable or not if a tree subsequently fell and injured an individual and/or caused an obstruction on the railway line.

The Planning Control Manager advised Members that the point entertained two aspects: (i) the making of the Order; and (ii) the dealing with applications to undertake work to a TPO tree. In respect of the former, it was advised that ordinarily the Council was not exposed to such a risk, save for if a TPO was confirmed in the knowledge that the trees were structurally poor or weak. In respect of the latter, it was advised that the reverse was true and the applicant could seek costs from the Council. It was stated that this contingency was not the case nor before Members for their consideration.

A Member stated he agreed with the representation made by the Council’s volunteer Tree Warden in that confirming the TPO would be consistent with the ‘Greening the Borough’ policy (at page 12) in aspiring to promote the healthy development of trees vis-a-vis the retention of all trees. It was said that by not confirming the TPO do Members seek to prevent the proprietor from maintaining the trees in question to ensure their long-term health. The Member reiterated the notion of a decision based on the balance of probabilities and stated his inclination in favour of confirming the TPO. 

A Member re-echoed the Council’s arboriculturist comments regarding the tree’s poor quality and the removal of dead wood (at page 12) if the Council was said to be at risk if it were to confirm the TPO. The Member stated that had the oak tree remained, she would have had no hesitation in supporting the confirmation of the TPO.  She directed Members to focus on what trees remained, describing the remainder as insignificant in terms of their ill-health and limited lifespan.

The Chair advised that no such opportunity could be afforded as the confirmation or otherwise of the TPO was a matter that required a final determination at this meeting.

In responding to Members’ earlier questions. The Planning Control Manager reported that on the occasions where the Planning and Enforcement Officer had attended the site, the works being undertaken at the time were the cutting of lodges/branches already felled and the felling of the oak tree itself. In respect of the Forestry Commission, the legislation in question was not over-riding but a separate issue which ought not to feature in Members’ considerations. In respect of protected species, the confirmation of the Order or otherwise would not engender any rights or implications under the Wildlife & Countryside Act 1981. He directed Members’ to consider the quality of the public amenity value provided by the trees as a determining factor, with reference made to the arboriculturist’s and Members’ earlier comments as to the poor quality of particular trees cited. The trees were said to have some noise-deadening properties however, due to the numerous breaks in the tree line, this was neither absolute nor material to the decision-making process. According to planning guidance, it was not recommended that a TPO be confirmed as a means to manage any work undertaken acknowledged by all as necessary.

The Chair moved for the recommendation for TPO not to be confirmed, stating that to otherwise confirm in this instance was not the correct decision so to ensure the expediency of tree management onsite and to afford the landowner the opportunity to honour the assurances given to the same.

A Member seconded the proposal for the recommendation to be approved.

DEFEATED THAT: 

The amendment to the recommendation that the Tree Preservation Order (TPO) made on the 30 December 2014 be confirmed by four votes in favour, and six votes against.

RESOLVED THAT:

The recommendation that the Tree Preservation Order (TPO) made on the 30 December 2014 is not confirmed by six votes in favour, and three votes against.