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Waverley Borough Council Committee System - Committee Document

Meeting of the Western Area Development Control Sub Committee held on 28/11/2001
Objection to Tree Preservation Order (No 21/01) - Tree on Land to the Rear of 9 Middle Avenue, Farnham



APPENDIX A

WAVERLEY BOROUGH COUNCIL

WESTERN AREA DEVELOPMENT CONTROL SUB-COMMITTEE
28TH NOVEMBER 2001


Title:
OBJECTION TO TREE PRESERVATION ORDER (NO 21/01) – TREE
ON LAND TO THE REAR OF 9 MIDDLE AVENUE, FARNHAM
[Wards Affected: Farnham Bourne]


Summary and Purpose

To consider the objection to the making of a Tree Preservation Order (TPO), in respect of one Douglas Fir on land to the rear of 9 Middle Avenue, Farnham and to determine whether the Order should be confirmed or not. The report has no direct resource implications. There are environmental benefits in retaining trees which merit special protection.


Background

1. A Planning Application (WA01/1146) for the erection of a single storey extension to the rear of 9 Middle Avenue, Farnham was submitted on the 10th June 2001. Following the case officer’s site visit on the 25th June, it was noted that the proposal involved the felling of a visually important tree, at which point, the Council’s Tree and Landscape Officer was consulted.

2. Members will be aware, that the application was first considered by the Western Area Development Control Sub-Committee on the 8th August 2001. Consideration was deferred to enable Members to make a Site Inspection, which occurred on the 21st August 2001. The application was considered again at the Sub Committee’s meeting on the 5th September when it was refused. Members will remember, that one of the reasons for refusal was that the Council considered that the proposal would result in the loss of a significant tree that would lead to a loss in the arboreal character of the area, thereby causing harm to the Conservation Area.

3. The decision notice was despatched on the 6th September 2001. Because in these particular circumstances, the applicant by way of his planning application, had notified the Council of his intention to remove a tree situated in a Conservation Area, the Council can thereafter only safeguard the retention of such a tree by way of a TPO. A TPO was duly made in respect of the Douglas Fir on the 6th September 2001.

Introduction

4. On September 6th 2001, TPO 21/01 was served in respect of one Douglas Fir in the rear garden of 9 Middle Avenue, Farnham, (see plan at Annexe 1 to this report). The tree in question is visible to the general public from surrounding areas and adds to the collective well-treed appearance of the locality. The Douglas Fir helps soften the impact of the built environment and is in a good, healthy condition. Officers are of the opinion that its removal would be detrimental to this part of the conservation Area.

5. One objection has been received against this Order from the owner of 9 Middle Avenue regarding the inclusion of T1, a Douglas Fir located in the rear garden. This objection is in seven parts. First, the Douglas Fir is not indigenous to the United Kingdom and is not generally recommended for any special protection by any authoritative arboricultural body, nor is it an endangered species. Secondly, the tree is a genuine threat to property and life, as advised by professional opinions. Thirdly, its removal will have no impact on the Conservation Area. Fourthly, the objector cites the supporting views of four of his neighbours that the removal of this Douglas Fir will not harm the Conservation Area. Fifthly, the supporting views of the Planning Committee are cited. Sixthly, mention is made of the Tree Officers prior actions in this matter. Finally, the objector mentions his family’s “loss of amenity” due to the continuance of the tree.

Officers’ response

6. As concerns the first objection, it is the opinion of Officers that the points raised by the objector are not relevant for the purposes of this formal objection to the TPO. TPO’s are used to protect selected trees if their removal would have a significant impact on the local environment and its enjoyment by the public. Selected trees would therefore, by definition, be irrespective of provenance, whether or not they are generally recommended for special protection, or whether they are a threatened species.

7. In respect of the second objection, it is the opinion of Officers that barring obvious cases, whether a tree is too close to a property is a somewhat subjective matter. The interaction of predisposing factors such as tree stability, size, underlying soil type, method of construction and foundation depth of adjacent properties need to be considered. The objector has consulted a firm of consultant engineers, WS Atkins, who apparently have commented on the Douglas Fir and its likely affect without having visited the property. They have advised that the tree represents a genuine risk to the house, footpaths and drainage, plus risks associated with damage caused by overhanging branches. The engineers refer to guidance documents which really only apply to new buildings near trees, particularly on clay soils, or new trees to existing buildings. Neither is the case here. There are many mature trees in the vicinity and indeed in the district, which are close to buildings without adverse effect. On balance, Officers do not consider that this tree poses a risk to the foundations of the existing house. In respect of disturbance of footpaths, potential effect on drains and overhanging branches, Officers do not consider the tree’s presence and proximity to be unacceptable any more so than innumerable other trees in the area. The additional comments made by Cooke & Associates in the form of a neighbour letter is, in this context, not regarded as relevant, given that it extrapolates hazard ratings from industry.

8. Under the heading of risk, the objector also states that he seeks legal indemnity from Waverley Borough Council should the Council refuse the removal of the tree on the grounds of unacceptable risk. This report deals with the objection against the imposition of a TPO and is not a report on an application to fell a tree. As such, the Council cannot be held liable for unreasonably withholding consent.

9. As concerns the third objection, the objector states that the tree is barely visible from the public viewpoint. This claim is refuted by Officers, who are of the opinion that on visiting the site, the Douglas Fir is very visible from Middle Avenue and adds to the collective well–treed appearance of the area. The Douglas Fir is in a good healthy condition and its removal would be detrimental to the appearance of this part of the Conservation Area.

10. As concerns the fourth objection, whilst the supporting views of neighbours are acknowledged, Officers are of the opinion that such support in this context should not outweigh the imposition of a TPO, which was made in a proper manner. The Council received one neighbour letter, which voiced concerns and strong reservations regarding the arboreal impact of the planning application (WA01/1146) in the Conservation Area.

11. As concerns the fifth objection, whilst the supporting and varied views of the Planning Committee are noted, when the application (WA01/1146) was considered again at the meeting on the 5th September 2001, Members determined, however, that the application should be refused. One of the reasons for refusal was that the Committee considered that the proposal would result in the loss of a significant tree that would lead to a loss in the arboreal character of the area, thereby causing harm to the Conservation Area.

12. As concerns the sixth objection, the objector alludes to the past attitudes and actions of the Tree and Landscape Officer. It is the opinion of Officers that the points raised by the objector are not relevant for the purposes of this formal objection to the TPO. A letter from Waverley Borough Council’s Chief Executive addressed to the objector states that it is their belief that their planning application was handled in a proper and professional manner. The letter also highlights that matters were also thoroughly considered by Members, and that no evidence was found of maladministration on the part of the Council.

13. Finally, as concerns the seventh objection, the objector states that they are “genuinely and seriously” concerned about the potential safety implications resulting in the loss of his family’s “amenity”. It is the opinion of Officers that it would be in the objector’s interest to commission a report from an Arboricultural Consultant, which would assess the structural integrity of the Douglas Fir and quantify the risk of damage potential posed by this tree. Such a report by an independent consultant with relevant qualifications may help the objector make a better case if he wishes to pursue the felling of this tree.

Human Rights Implications

14. In deciding to confirm the Order with or without modification, the Council must have regard to the protection of human rights of the objector and others affected by the decision.

15. The rights of the European Convention affected by the decision arise from:-

Article 8 – protection of the right to respect for one’s homes; and

Article 1 of the First Protocol – the right to enjoy possessions.

16. Both are relevant to the objection regarding the Douglas Fir T1 on land in the objector’s ownership.

17. The decision recommended by Officers, to confirm the Order, will interfere with the rights protected by those articles. However, the interference is in accordance with law.

18. The objectives of the Town and Country Planning Act 1990 are met by including measures which allow for the protection of trees in the interest of others where they are regarded as having a public amenity value. The preservation of the trees is necessary to preserve the visual amenity of the area. The Order is necessary in furthering the legitimate aims of the Development Plan. To confirm the Order does not place a disproportionate burden on the owner, who retains the right to make applications for works to the trees. In these circumstances the confirmation of the Order is not considered to be an unjustified interference with the Convention rights.

Conclusions

19. It is your Officers’ view that the objections raised against the imposition of Tree Preservation Order 21/01, are either not substantiated or do not override the public amenity value presented by the Douglas Fir.

Recommendation

That the Tree Preservation Order 21/01, applying to one Douglas Fir on land to the rear of 9 Middle Avenue, Farnham, be confirmed.



Background Papers (DoP&DM)

Letter of response from W S Atkins Consultants Ltd to Mr A Pryce, containing a statement of support of planning application WA01/1146 from neighbours (2nd August 2001)

Letter of response from Waverley Borough Council’s Chief Executive to Mr A Pryce (10th September 2001)

Formal letter of objection from Mr A Pryce, 9 Middle Avenue, Farnham (15th September 2001)

Letter of objection against planning application WA01/1146 from Group Captain M I Thom (18th September 2001)


CONTACT OFFICER:

Name: Mr A Spaarkogel Telephone: 01483 523309
e-mail: aspaarkogel@waverley.gov.uk

Name: Mr N Hammick Telephone: 01483 523072
e-mail: nhammick@waverley.gov.uk