Tree Preservation Order 004 of 2010 2 to 28 (evens) Somersby ...

Tree Preservation Order 004 of 2010
2 to 28 (evens) Somersby Crescent, Maidenhead SL6 3YY and 2 Thurlby Way, Maidenhead SL6
3YZ and land to the north east of 28 Somersby Crescent, Maidenhead.
1. Background:
Tree Preservation Order (TPO) 004 of 2010 was created in March 2010 on land at 2 to 28 (evens)
Somersby Crescent, Maidenhead SL6 3YY and 2 Thurlby Way, Maidenhead SL6 3YZ and on land to the
north east of 28 Somersby Crescent, Maidenhead. Prior to the initiation of the TPO a Planning Condition
(attached to Consent Notice 850/70) existed prohibiting the cutting down, topping or lopping of trees at
the properties, without the prior consent of the local planning authority. The TPO was initiated following a
request to carry out tree works, including felling Oak trees at the rear of 16 and 18 Somersby Crescent.
Insufficient information was provided regarding the reasons for felling or the exact works to be carried
out and it was considered expedient to serve a TPO as a precautionary measure to protect the trees.
The Order relates to an area of trees and a parcel of woodland as per the specification below:
A1 All trees of whatever species. Located within the rear gardens of properties 2 to 28
Somersby Crescent and 2 Thurlby Way, Maidenhead.
W1
All trees of whatever species. Located on land to the north east of 28 Somersby Crescent
and south of 30 Somersby Crescent, Maidenhead.
2. Objections:
Letters of objection to the Order were received, from Mr Keiron Hart of Marishal Thompson Group on
behalf of Halifax General Insurance, with respect to 28 Somersby Crescent and on behalf of Infront
Innovation with respect to 18 Somersby Crescent, and from Mr Michael Metherell, the owner of 18
Somersby Crescent. Their objections are summarised below:
• There are drafting errors in the TPO. The Council has failed to correctly identify the legislation
under which the TPO is made which is an omission from the Model Order that renders the
TPO so fundamentally flawed as to be ineffective.
• The Council has not stated how it assessed the amenity value of the area ‘A1’ and the
woodland ‘W1’.The two Oak trees, at the rear of 16 and 18 Somersby Crescent have little
merit and should be excluded from the TPO. Their visual contribution is compromised by the
presence of buildings and other trees. Two Oaks in the woodland should also be excluded
because they are not considered worthy of protection. Their removal would open views to
further trees beyond. The trees are therefore not significant when viewed from a public place.
• The Oaks at the rear of 16 and 18 Somersby Crescent are implicated in the current
subsidence damage at 18 Somersby Crescent. Functionally active roots originating from Oak
have been confirmed as being present within a clay soil below foundation level and it is
confirmed that damage has occurred.
• Oaks in the woodland are implicated in current damage at 28 Somersby Crescent. A previous
claim arose in 2003 and a partial underpinning scheme was completed. Further cracks were
noticed by the residents of no 28 in late summer 2006. Site investigations have confirmed the
presence of shrinkable clay soil below foundation level and that damage has occurred.
• The contribution made by the Oaks in both cases is disproportionate to the S203
compensation amount potentially payable from public funds due to additional engineering
repair works required with these trees remaining in place.
• Similar trees have been removed from 14 and 20 Somersby Crescent in the last few years.
• Not only the TPO but also the existing planning restriction should be removed from the trees.
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The part of the woodland 'W1' adjacent to the A404M is owned by the Highway Authority and is
managed on their behalf by Enterprisemouchel. They have raised no objection to the TPO. According to
information from the Land Registry, the remaining section of woodland is unregistered.
3. Responses to the objection and justification for the Order:
Under the Town and Country Planning Act (1990) local authorities 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 woodland 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, a TPO should be used to protect
selected trees and woodlands if their removal would have a significant impact upon the local
environment and its enjoyment by the public. Local planning authorities should be able to show that a
reasonable degree of public benefit would accrue before the TPO is made or confirmed. The trees, or at
least part of them, should therefore normally be visible from a public place, such as a road or footpath.
Trees may be worthy of preservation, amongst other reasons, for their intrinsic beauty or for their
contribution to the landscape.
In this case the trees protected within designation ‘A1’ of the TPO, particularly the line of Oaks, create
an attractive natural backdrop to the chalet bungalows on this side of Somersby Crescent and provide a
valuable screen between Somersby Crescent and Ockwells Road to the south. The trees are a
distinctive element in the Crescent especially when in leaf and can be clearly seen from the properties in
Ockwells Road and the public footpath linking Somersby Crescent and Ockwells Road. As such the
trees contribute to the amenity, aesthetic and landscape value of the local area.
The woodland ‘W1’ provides valuable screening, between the A404M, the properties in Somersby
Crescent and those in Ockwells Road adjacent to the turning point. The woodland abuts the public
footpath between Somersby Crescent and Ockwells Road and is highly visible to pedestrians using
Ockwells Road and the footbridge over the A404M.
The local planning authority may create a TPO when it is believed there is a risk of a tree being cut down
or pruned in ways that would have a significant impact on the amenity of the area. Prior to the initiation of
the TPO a Planning Condition attached to Consent 850 of 1970, the planning permission for the
residential development now known as Ockwells Park, prohibited the cutting down, topping or lopping of
trees without the prior consent of the local planning authority. In March 2010 Marishal Thompson applied
to the Council for permission to fell two Oak trees, one at the rear of 16 and one at the rear of 18
Somersby Crescent in light of the subsidence damage at 18 Somersby Crescent. Following an
assessment by one of the Council’s Arboricultural Officers it was considered that insufficient evidence
had been provided to substantiate the reasons for felling the trees. The trees in Area ‘A1’, in particular
the line of Oaks, have a high amenity value as described above. Their loss would be detrimental to the
amenity of both Somersby Crescent and the surrounding area. The proposed removal of the trees was
therefore considered to be inappropriate and it was deemed expedient to initiate a TPO to protect the
trees. Government guidance recommends that planning conditions should not be used to protect trees
long term; the correct mechanism for doing so is with the use of a TPO. Breaching a planning condition
does not carry the same penalties as for a breach of a TPO and is therefore much less of a deterrent to
carrying out inappropriate works.
With respect to the objections regarding the validity of the TPO, the model form of TPO is currently
prescribed by the Town and Country Planning (Trees) Regulations 1999 (No. 1892). The regulations
were amended by the Town and Country Planning (Trees) (Amendment) (England) Regulations 2008
which made some variations to the model form of TPO prescribed under the 1999 Regulations.
While TPO 004 of 2010 does not refer to the 2008 amendment regulations in its heading, the form of
TPO does contain all of the amendments prescribed by the 2008 Regulations. For example it can be
seen from the TPO made that there are no consent provisions – in accordance with the 2008 regulations
and that the TPO includes the amendments to article 9 (4) (b) of the model TPO also prescribed by the
2008 regulations. The correct insertions have been made therefore to comply with the amendment to
the regulations. Further, on page 3 of the TPO itself specific reference is made to the 1999 regulations
as amended by the 2008 regulations in relation to applications for consent under the TPO.
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For these reasons, in the opinion of the Council's Legal Services team the absence of reference to the
regulations in the heading of the TPO is not an impediment sufficient to nullify the TPO.
The Helliwell System 2008 was employed in evaluating the visual amenity value of the trees considered
for protection within the TPO. This method considers six factors; the size of the tree, the expected
duration of the visual amenity, the importance of the trees in the landscape, the presence of other trees,
the relation of trees to their setting and the form of the trees. With regard to woodland the method
considers the size of the woodland, the position in the landscape, the viewing population, the presence
of other trees and woodland, the composition and structure of the woodland and compatibility in the
landscape. The scores that the Council’s Arboricultural officer awarded for these factors with respect to
‘A1’ and ‘W1’ can be viewed in full in the TPO file. This method of evaluation is considered to be a guide
only and not a precise instrument and it is acknowledged that a degree of subjectivity is inevitable.
However, having carried out the evaluation the Council’s Arboricultural Officer was satisfied that the trees
in ‘A1’ and in the parcel of woodland were worthy protection on amenity grounds and that the risk of the
trees being removed made it expedient to serve a TPO.
The Oak trees at 16 and 18 Somersby Crescent have undergone substantial crown reduction works in
the past and are reforming crowns. Oak trees are a resilient species to decay and disease and appear to
be responding well to the previous work. Further information is required to fully evaluate the decay
present in these trees, including a climbing inspection and decay tests. It is possible that the ground level
around the Oak in the rear of 18 Somersby Crescent has been altered and this should also be fully
investigated.
Regarding the claims that the Oak trees are implicated in the damage to the properties at 18 and 28
Somersby Crescent, it is considered that in both cases insufficient evidence has been provided by
Marishal Thompson to substantiate these claims. In order to make an informed decision about tree
related damage more detailed information is required such as soil analysis – including proof of
desiccation, details of liquid and plastic limits taken from both a trial and control pit, all monitoring results
preferably for 12 months or more, including level monitoring, borehole sample record and a control
borehole for site soil comparison, full details of any drainage report carried out for the property, details of
any previous underpinning or building works to the property, details of the damage and location of the
damage in relation to the trees and heave risk assessment. Arboricultural and underpinning experts are
agreed that level monitoring is the best means of determining the cause of certain types of damage to
property and this should be carried out at both 18 and 28 Somersby Crescent. Should this not be carried
out and a claim is pursued against the Council then the Council reserves the right to seek any costs
associated with determining the cause of any damage suffered and the extent of any necessary remedial
work to the extent that these costs are increased by reason of the lack of level-monitoring information.
Compensation is not awardable in respect of making of a TPO. The Council would not be liable for any
loss or damage caused or incurred in consequence of serving a TPO. The section 203 compensation to
which Marishal Thompson refers is only applicable where there is a refusal of any consent to works
under the TPO or the consent has been granted subject to conditions.
The serving of a TPO does not prevent an application for tree removal being submitted but in this case
all of the above information would be required to support the application. Anyone can apply to undertake
works to a tree protected by a TPO, there is no fee levied to submit an application for works to protected
trees or a limit on applications made. The local planning authority would not unreasonably withhold
consent for tree works which accord with good arboricultural practice, but should consent be refused any
applicant has the right of appeal against the decision. The Councils Tree Team can provide free
arboricultural advice in future should there be any concerns regarding the protected trees. This service is
not available to owners of trees that are not protected.
As the trees at 14 and 20 Somersby Crescent were removed before the TPO was implemented the
Council would not have been party to any details regarding tree related damage. The trees may have
been removed for reasons other than subsidence.
4. Sustainable Development Implications:
In terms of sustainable development policy the recommendation contained in the report will have the
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following significant beneficial sustainable development implications: A positive impact on the natural
environment by retaining the tree stock.
RECOMMENDATION that Tree Preservation Order 04 of 2010 is confirmed without amendment.
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