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

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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. Page 51
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 Page 52
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Tree Preservation Order 004 of 2010 2 to 28 (evens) Somersby ...

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