Agenda item

OFFICER RECOMMENDATION: To confirm the Tree Preservation Order without modification.  

46.25        The Committee was asked to confirm Tree Preservation Order 404 without modification.  

46.26        The Tree Officer explained that the proposal related to an emergency Tree Preservation Order that was served to protect a row of trees between 25 Paynes Pitch and Dunstan Glen. The emergency Tree Preservation Order was served due to the felling of nearly all the mature trees within 25 Paynes Pitch and subsequent concerns that the row of trees in question may also be under threat of being removed. The trees were clearly visible to the public and had high amenity value that contributed to the street scene. A planning application had since been received which showed a proposed entrance going through the row of protected trees and confirmation of the Order would ensure that the trees were a material consideration throughout the planning application process. For these reasons it was recommended that the Tree Preservation Order 404 be confirmed without modification.

46.27        The Chair invited an objector to address the Committee. The objector, who was a Chartered Arboriculturist and a Professional Member of the Arboricultural Association, felt that the decision of whether to confirm the Tree Preservation Order was completely separate from any planning application issues relating to the adjacent land and the key issue at stake was whether each of the trees was really worthy of a Tree Preservation Order. He believed that the trees, in most cases, were not good enough and provided examples that there was an ash tree that had been severely lopped and topped in the past so that it was now misshapen and, in addition, it had been inspected earlier in the year and had shown symptoms of ash-dieback disease which was likely to prove fatal; there was a large leyland cypress tree which was quite clearly outgrowing its available space and was going to get a lot bigger relatively quickly; and there were young self-set sycamore and ash trees which had grown up close to one another and were relatively tall and thin which only had short-term viability. In his professional opinion, there was only one tree that just might merit a Tree Preservation Order and that was a medium sized sycamore that had previously been topped and whose three main limbs were stitched together by an old and taut system of supporting cables. The objector asked that Members be mindful of several considerations: whether a Tree Preservation Order was necessary at all, especially given that the trees were all outside of the curtilage of 25 Paynes Pitch so were not under any immediate threat, and, even though there was a planning application pending determination, the Council could achieve effective tree retention through the normal planning processes either via collaboration or conditions; also, whether it would be reasonable to refuse a future Tree Preservation Order application to fell some of those low quality trees and whether such a decision could be justified to the Planning Inspectorate. He asked Members to either not confirm the Tree Preservation Order or to give serious consideration to ensuring that it was confirmed with modifications so that it only applied to the trees that were of good enough quality.

46.28        The Chair invited a supporter to address the meeting. The supporter began by endorsing the report of the Tree Officer which represented the thoughts of residents in a clear and concise manner. He went on to advise that he was addressing the Committee as a spokesperson for the residents of Dunstan Glen, Churchdown, the wider village community and the two Tree Wardens who all wished to see the retention of the Tree Preservation Order. The area of the Tree Preservation Order formed the boundary of the adjacent property of 25 Paynes Pitch known as Dunstan Lodge. In early July, developers had moved onto the Dunstan Lodge curtilage and felled all the trees which were not in a Conservation Area and were without Tree Preservation Order status. Contact was made with Tewkesbury Borough Council and within a week Tree Preservation Order 404 was placed upon the trees and hedgerow area – it was established because of the perceived risk of the trees being felled and the hedgerow being ‘grubbed out’ by developers. Within another week an objection was placed on the Order by the developers of Dunstan Lodge. In early November, the developers applied for full residential planning permission for Dunstan Lodge. In documents contained within the planning submission, the developers stated that the southern boundary fence between Dunstan Lodge and Dunstan Glen would be totally removed and that the land containing Tree Preservation Order 404 be incorporated within their development plans. In their submissions, the perceived risk had now become reality and it stated that the cypress and ash trees would be felled and 70% of the hedgerow grubbed out. The area of land serving Tree Preservation Order 404 had been managed by the residents of Dunstan Glen since 1985. The objector referred to the Secretary of State’s document ‘Tree Preservation Order Applications’ which stated that “in the Secretary of State’s view, Tree Preservation Orders should be used to protect selected trees and woodlands if their removal would have a significant impact on the local environment and its enjoyment by the public. The trees, or at least part of them, should therefore normally be visible from a public place, such as a road or footpath. The benefit may be present or future; trees may be worthy of preservation for their intrinsic beauty or for their contribution to the landscape or because they served to screen an eyesore or future development. Other factors, such as importance as a wildlife habitat, may be taken into account”. His view was that Tree Preservation Order 404 met all of those criteria and as such the existing Order should be retained until a proper planning application could be debated, voted upon and approved to ensure the long term survival of the vast majority of the existing trees and that the site was ultimately developed responsibly.

46.29        In proposing the Officer recommendation, a local Member indicated that, whilst the trees may not look particularly attractive to the outside world, they were very important to the residents of Churchdown, they had been there for a number of years and represented a landscape which the community wished to keep before it was taken away by developers. The Development Manager indicated that it had just been brought to his attention that a minor modification to the Order would be required. He indicated that it was a technical matter required by the legislation in that the Order needed to specify the number of trees of each species when it was a group Tree Preservation Order as was the case in this instance. He therefore suggested a slight change to the recommendation to confirm Tree Preservation Order 404 with modification to allow the Order to be updated to take account of this legislative requirement, but this would not change the overall effect of the recommendation. The proposer of the motion indicated that she was happy to accommodate this change within her proposal and this was seconded. The seconder of the motion went on to refer to instances within his own ward where he believed that hedgerow and trees subject to Tree Preservation Orders had been damaged deliberately by developers so that they could be removed; he questioned how confident Officers were that this would not happen in this instance. The Development Manager stated that he was as confident as he ever could be in these situations; a Tree Preservation Order was a serious matter and it was an offence to wilfully undertake works to destroy trees that were subject to an Order and he hoped that a developer would do nothing to upset this. In this particular instance the land was not within the control of the developer who had submitted the neighbouring planning application so, again, he hoped that this would provide some assurance to Members. Another Member questioned what the objector had said in relation to one of the trees subject to the Tree Preservation Order being a leylandii tree as he understood that such species could not be the subject of a Tree Preservation Order and if it was he could not understand why the Council would wish to preserve one of these trees. The Tree Officer explained that the emergency Tree Preservation Order had been placed on the whole group of trees because of the visual amenity provided by the group of trees as a whole. Another Member indicated in a similar vein that the objector had referred to the group of trees including Ash Trees and had suggested that they were showing symptoms of Ash-Dieback disease; he had had such trees on his land bordering the A46 and had been asked to remove them for safety reasons. On this basis he was concerned that the Committee was being asked to preserve a group of trees, that included diseased trees amongst them, which were not worthy of retention. The Development Manager indicated that, in terms of the point made about the leylandii, it was his view that as an individual tree and species it would not normally be protected but where it formed part of a group that had value as a group then it would be appropriate to do so. In terms of trees showing symptoms of Ash-Dieback the Development Manager was not aware of any particular trees being at risk at this particular time but should any trees reach the position that they presented a danger the Tree Preservation legislation allowed for works to be carried out to make them safe and should it be necessary to take them down to achieve this then again this was covered by the legislation without prejudice to the owner of the trees. Another Member expressed concern about preserving a group of trees that included leylandii as they were known to grow extremely quickly and to a great height. On this basis it was proposed that this item be deferred to allow the Committee to have a good look at what trees were included in the group as the Committee papers simply referred to a group of trees. The Committee had been told by an expert, who had detailed his qualification, that many of the trees in this group were not worth preserving and he wondered whether the Tree Preservation Order system was being used inappropriately to place barriers in the path of the property developer and manoeuvre the process in an unacceptable manner. The proposal to defer this application was seconded. At the invitation of the Development Manager the Tree Officer explained the implications of deferring the confirmation of the Order in that a Tree Preservation Order once made had to be confirmed within six months and if the Order was not confirmed at today’s meeting then it ran out on 17 January 2021 and after that date the trees would no longer be protected. The proposer of the deferral motion expressed concerns about this matter not having been brought before the Committee earlier rather than being left until the eleventh hour and putting pressure on the Committee to make a decision. The Development Manager stressed that it was not the intention to put pressure on the Committee to make a decision but just to set out the facts and advise Members of what the implications of a deferral might be; the Committee was at liberty to make whatever decision it so wished but it needed to do so being aware of all of the facts and implications. The Chair sought to clarify the position in relation to his understanding that the confirmation was merely pending an application when the applicant could apply to remove some of the trees as part of the application and this was simply a mechanism to ensure that the whole group of trees were protected pending consideration of a planning application which he felt was a sensible thing to do. The Tree Officer clarified that a Tree Preservation Order did not prevent planning permission being granted but the local planning authority considered the risk to protected trees when deciding upon planning applications. Once detailed planning consent was granted felling which was directly required to enable the development to go ahead may then be carried out. The emergency Tree Preservation Order was put in place because some felling had already taken place, confirmation of the Tree Preservation Order would mean that the trees would be a material consideration when the planning application was considered and in the meantime would afford the trees some protection. The proposer of the motion to defer indicated that he was more concerned about abuse of the Tree Preservation Order system by trying to protect trees, which an arboriculturist expert had stated were not worthy of protection, in order to achieve gains in some other direction. The Legal Advisor addressed the point about abuse of the system quoting from government guidance in relation to group trees protection which explicitly provided that “the group category should be used to protect groups of trees where the individual category would not be appropriate and the group’s overall impact and quality merits the protection”. Therefore the fact that there were particular trees that in themselves would not merit an individual Tree Preservation Order meant that this group way of protecting the trees was the legitimate way to deal with this matter. Should the trees be removed because they do not have any protection then they would not be a material consideration in the planning process as they would simply no longer be there. During the debate on the motion for deferral, one of the local Churchdown Member’s felt that it would be useful to give the Committee some insight into the setting of Dunstan Lodge which was a period property that was being demolished; all of the greenery on the site was well established albeit that it incorporated some less worthy trees they were part of the visual amenity as a whole. She stressed that the impact that these trees had on the area was absolutely priceless; Churchdown was a rural environment that was rapidly losing its rural nature and every effort should be made to preserve as much greenery and trees as possible especially in the light of the climate emergency situation. Whilst some people may consider the trees to be worthless to the residents of Churchdown they were a massive asset which should be protected. The proposer of the Motion to defer the confirmation of the Tree Preservation Order indicated that, in light of the advice of the Legal Adviser that this was a legitimate process to protect a group of trees regardless of what they are, he wished to withdraw his motion.

46.30        Accordingly, it was

RESOLVED           That Tree Preservation Order 404 be CONFIRMED with modification to deal with the technical matters that had been raised by the Development Manager.