PLANNING AND ENVIRONMENT
Category A Housing Development at Bel Royal, St. Lawrence –
Application to Remove Roadside Oak
Purpose of the Report
To consider an application from the landowners to remove a mature roadside oak tree, which is situated to the north of the above site, alongside St. Peter’s Valley Road and which is currently included on the ‘List of Protected Trees’.
Background
- On 21st March 2007, the Minister for Planning and Environment (The Minister) decided to grant planning permission for development at the site comprising inter alia 102 Category A homes.
2. A permit was issued on the 8th May 2007, which allows for the retention and protection of good quality trees where practicable, the removal of identified trees and the replacement of lost trees. These decisions were informed by a ‘Tree Survey’ prepared and submitted as part of the planning application.
3. The oak tree in question was one of a row of roadside oaks identified for removal on the approved plans (see plans in Appendices 1 and 2).
4. The tree together with another surviving roadside oak was later included on the ‘List of Protected Trees’, following a public outcry when the majority of the row of oaks were brought down as part of site preparation works.
5. The inclusion of the trees on the ‘List of Protected Trees’ had the effect of compromising the road improvements required and approved in association with the Category A housing development.
6. The permit was conditional on the submission and approval of details for the approved road improvement works, which were to be agreed with the Transport and Technical Services Department (TTS). This eventually led to an impasse between the Minister and the Minister for Transport and Technical Services. The former wished to retain the two trees on amenity grounds and the latter wished to secure all the previously approved road improvements on road safety grounds.
7. Following various efforts to arrive at a mutually acceptable compromise, the Ministers agreed a way forward, in consultation with local political representatives. It was agreed that an attempt should be made to move and replant the oak tree in question, in order to allow for a modified road improvements scheme, which would avoid compromising pedestrian safety (N.B. A scheme that would incorporate most, but not all of the previously approved road improvements). Local political support was dependent on TTS agreeing to introduce a part-time 20mph speed limit in the vicinity of Bel Royal School, if considered appropriate as part of the ‘Safe Routes to School’ initiative. It was also decided that the POA should impose a requirement on the developer to provide funds for the installation and maintenance of speed activated flashing road signs to indicate the speed of traffic in both directions past the site.
8. A meeting subsequently took place on-site with the developers and the States Arboriculturalist to discuss the feasibility, technical requirements and best way forward associated with moving the oak tree. At that meeting a basic approach was agreed, but it was also decided that there would be merit, in undertaking a detailed appraisal of the tree’s current condition.
9. On the following day (30th January 2008), the States Arboriculturalist carried out a detailed inspection of the tree, which involved removing the ivy to expose the trunk and using an aerial platform to gain access to the upper crown of the tree. The States Arboriculturalist’s updated report was received on 30th January 2008 (see Appendix 3) and paints a picture of a tree in a poor condition, with extensive basal and trunk decay, a weakened crown and potentially dangerous branches. On the basis of his findings, he believes the tree should be downgraded to the lowest grade and recommends its removal.
10. It is as a consequence of this report that the landowners have formally submitted their application to the Minister to fell the tree (see Appendix 4).
11. Local politicians were advised of the situation on 30th January 2008 and asked for their views on felling the tree. The Minister subsequently met on-site with the local politicians, the States Arboriculturalist and the developer’s representatives on 4th February 2008 to re-establish the best way forward.
12. At that meeting, the Minister agreed that the tree should be pollarded as a matter of urgency (for safety reasons) and that the States Arboriculturalist should then re-inspect the tree and report back, so that he could make a final decision. In return for felling the tree, the developer pledged to replace it with 5 semi-mature trees elsewhere on the site. The options for the Minister remained either to allow the tree to be felled, or to require its relocation. The decision was to depend largely on the results of the pollarding and what the States Arboriculturalist reported back.
13. The pollarding exercise effectively left only the trunk of the tree standing and the States Arboriculturalist reported that the decay around the base extends all the way up the main trunk. He noted that the heart wood is soft and brittle in some places and in other parts hard.
14. In the event, the Minister was minded to permit the felling of the tree on condition that the developer plants a new wood elsewhere on the site. This notion was the subject of consultation and discussion with the Constable of St. Lawrence.
Discussion
Initial assessment of trees
To help assess the value of trees on the site, expert advice was provided in a ‘Tree Survey Report’ of March 2004, which was prepared and submitted as part of the planning application by Michael Felton Ltd, in consultation with the States Arboriculturalist. The tree survey includes a plan showing the location of all the trees and gives details of species, age, girth, condition and retention value.
The tree in question was recorded as follows:
Tree No. 54 Species: Quercus Robur Age: Mature (i.e. over * life expectancy) Girth: 410cm Height: 20m Observations: Large tree with split in the bole. Tree covered in Hedera. Retention Value: C |
For the purposes of the ‘Tree Survey’, the trees were surveyed in accordance with BS5837 ‘Trees in Relation to Construction’. The retention value of all the trees on the site is graded into 4 categories, as follows:
A - High – retention is most desirable
B - Moderate – retention desirable. Potential to develop to higher category
C - Low – Could be retained, but not worthy of a higher category
D - Removal – Dead, Dying, Dangerous.
On this basis, therefore, the tree was identified as having a low retention value. In addition to the split in the bole referred to in the tree survey, the States Arboriculturalist subsequently drew attention to the tree’s declining health and pointed out some rot and caterpillar damage to the bole.
Notwithstanding the above, the Minister, having regard to all the circumstances, took the view that the tree should be included on the ‘List of Protected Trees’ “in the interests of the amenity of the Island” (N.B. Amenity being the key ‘test’ in Law as to whether a tree should be included on the List).
Updated assessment of trees
The recent and more detailed reassessment of the tree by the States Arboriculturalist paints a gloomier picture, which effectively amounts to a material change in circumstances.
He described the tree as suffering from extensive basal and trunk decay and from a weakened crown caused by previous pollarding. He pointed to decay of heartwood extending from the crown deep into the main trunk; decay in main branches; the danger of branches splitting away from the main trunk; and a split/wound on the western side of the trunk extending from the base to the crown.
His report stated that the tree could be pollarded to remove the potentially dangerous branches, but that this would effectively leave a decaying trunk of little or no amenity value with a possible life expectancy of 5 to 20 years.
On the basis of these findings, he was of the view that the tree should be downgraded to a Grade D (i.e. Dead, Dying, Dangerous) and recommended its removal.
Land Owners’ Application
The landowners’ application for permission to remove the tree is a direct consequence of the States Arboriculturalist’s findings. In a covering letter they highlight his main conclusions. They also point out that the immediate removal of the tree would have the benefit of ensuring the safety of immediate residents, site staff and motorists that use St. Peter’s Valley Road. Finally, they make the point that the tree (in its then state) presents a public risk and that delays in making a decision to fell the tree will carry with it a liability.
Conclusions
The expert opinion provided in the States Arboricuturalist’s report on 30th January 2008 amounts to a material change in circumstances regarding the tree in question.
The report highlighted that the tree was suffering from extensive decay and was potentially dangerous at that time. It made the case for the extensive pollarding of the branches (to rectify the most immediate danger). It also provides a reasoned argument why the tree should be downgraded to a Grade D (i.e. dead, dying, dangerous) and makes a strong case in support of his recommendation that the tree be removed.
In the light of the above, it would be difficult to justify not granting consent for the felling of the tree, particularly when one also considers:
- the repercussions of the recent drastic tree surgery on the amenity value of the tree (i.e. it is now reduced to a trunk);
- the most recent confirmation by the States Arboriculturalist of the remaining decay; and
- the limited life expectancy of the tree.
Clearly, the planting of a new woodland area, in addition to the developer’s pledge to plant 5 semi-mature replacement trees and the requirement to recreate the former ‘row of oaks’ feature on the new road alignment, will all serve as considerable mitigation for the public benefit.
Of course, the future of this roadside tree is a sensitive political issue, given the previous high feelings aroused among local residents when other roadside oaks were felled, and it would be prudent to advise residents of any decision to permit the felling of the tree before the work is carried out.
Legal implications
Point 1
Article 61 of the Planning and Building (Jersey) Law 2002 makes it clear that the Minister’s consent is required to cut down a tree on the ‘List of Protected Trees’. It is an offence to do so without such permission. However, if the tree was felled without consent, it would be a defence in Law (under the same article) to prove that the tree was dead, dying or had become dangerous.
Given the views expressed by the States Arboriculturalist, there would appear to be very strong grounds to support the felling of tree, because it is decaying and potentially dangerous condition and location.
Point 2
Should the Minister decide to refuse the application in the light of the new evidence, it would be difficult to argue if required that the decision was reasonable and fair, having regard to all the material considerations.
Point 3
There is also an issue here about potential liability should the oak tree fall onto existing or approved residential property, or the road or other public areas causing damage or injury. The Solicitor General has previously given advice that the planning authority could be liable for loss or damage arising from its decisions, where it is proven to have acted negligently in the performance of its statutory duty and/or failed to properly exercise any duty of care it may be under towards persons likely to be affected by its decisions. Of course, the Minister is not bound to follow the recommendations / advice of the States Arboriculturalist, but a decision not to permit the removal of the tree in question would have to be taken in the knowledge that there is a potential risk of injury and damage to adjacent properties and their occupants and to pedestrians and road users (albeit much reduced by the recent extensive pollarding). If the tree were to fall causing injury or damage, it seems likely this would give rise to a claim by the injured party that this was foreseeable and could have been avoided and is, therefore, the result of negligence on the part of the Minister. If the Minister does wish to retain the tree, having taken all factors into account (including amenity value), he will, in any event, have to satisfy himself that the risk to future residents and passers-by is not sufficient to make the retention of the tree unreasonable.
Consultation
The application has been the subject of consultation with the States Arboriculturalist and the political representatives, as described above.
Recommendation
That the Minister for Planning and Environment decides to approve the felling of tree no. 54, on condition that:
- the tree is felled at the earliest opportunity before the 1st March 2008 (N.B. normally associated with the start of the bird nesting season);
- the tree does not contain protected nests that are in use or being built;
- there is independent verification that the tree does not contain protected nests;
- the wood from the felled tree is given over to a good cause, to the satisfaction of the Minister;
- the tree is replaced by the planting of a mixed woodland of 50 native trees at the southern end of Field 853 and by 5 previously pledged semi-mature oak trees (Quercus Robur) adjacent to the approved grassed play area;
- that the species used in the woodland shall comprise an agreed mix from the following:
- Alnus spp (Alder)
- Betula nigra ‘River Birch’ (Birch)
- Carpinus betulus ‘Frans Fontaine’ (Fastigiate Hornbeam) – often understorey tree in oak wood
- Crataegus monogyna (Hawthorn)
- Cretaegus prunifolia (Thorn)
- Corylus avellana (Hazel) - characteristic shrub layer in oak woods
- Malus trilobata (Crab Apple) – common in woodland edges
- Pyrus calleryana ‘Chanticleer’ (Pear)
- Quercus robur (English Oak)
- Salix caprea (Goat Willow)
- Salix cinerea (Pussy Willow)
- Salix fragilis (Crack Willow)
- Sorbus aria (Whitebeam)
- Tilia cordata ‘Rancho’ (Lime)
- the size of the trees to be planted for the mixed woodland shall range from whips to extra heavy standards in a mix to be agreed by or on behalf of the Minister;
- details of the required mixed woodland are included in the detailed landscaping scheme to be submitted in accordance with Planning Condition 16.
N.B. The Minister will continue to anticipate that the previous agreement with local political representatives in association with moving the tree to secure road improvements will continue to apply. Namely that:
(i) The Transport and Technical Services Department agrees to introduce a part-time 20mph speed limit in the vicinity of Bel Royal School, if considered appropriate as part of the ‘Safe Routes to School’ initiative; and
(ii) The Planning Obligation Agreement for the adjacent Category A housing development shall include a requirement on the developer to provide funds for the installation and maintenance of speed activated flashing road signs to indicate the speed of traffic in both directions past the site.
Reason(s) for Decision
- To enable the removal of a decaying and potentially dangerous tree, in accordance with the recommendation of the States Arboriculturalist;
- To reduce the potential risk of damage and injury to existing and approved properties, residents, road-users and passers-by should the tree fall;
- To avoid the retention of a decaying tree with limited life expectancy little remaining amenity value;
- To reduce any undue potential detrimental impact on the birdlife of the area.
- To ensure the felled timber is put to good use;
- To ensure that the loss of the tree is compensated for in the required landscaping scheme for the Category A housing development, so as to: further enhance the appearance of the development; better assimilate the development into the landscape; and further enhance the amenity and wildlife value of the area;
- To enable road improvement works in the interests of highway and pedestrian safety;
- To assist the process of delivering the required Planning Obligation Agreement for the Category A housing development.
Action Required
- inform the land owner, local political representatives, TTS and the Law Officer’s Department of the Minister’s decision;
- inform concerned resident and owner of the property known as ‘Bas du Mont’;
- issue a press statement to be circulated in advance of the felling of the tree;
- remove the tree from the ‘List of Protected Trees’.
Written by: | Roger Corfield, Principal Planner – 1st February 2008 |
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Approved by: | Kevin Pilley, Assistant Director – Policy and Projects |
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Endorsed by: | |
Attachments:
- Appendix 1: Category A Housing Site – Location Plan – 1:2,500 scale.
- Appendix 2: Drawing identifying the Oak Tree – 1:500 scale
- Appendix 3: Report of Nick Armstrong, States Arboriculturalist on status of tree (e-mail dated 30th January 2008).
- Appendix 4: Application from Dandara Jersey Ltd (letter and form dated 30th January 2008).
File ref: P/2006/2489
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