PLANNING AND ENVIRONMENT
Category A Housing Development at Bel Royal, St. Lawrence –
Provisional Listing of Roadside Oaks
Purpose of the Report
To provide evidence and advice to assist the Minister for Planning and Environment in deciding whether or not the trees at the above site that have been provisionally included on the List of Protected Trees should be permanently included on the List.
Background
1. On Friday 11th May 2007, the developer commenced tree felling at the site in compliance with the approved plans. Work began on felling the roadside oaks on the day after, when the majority were brought down. This work prompted a public outcry, particularly as this was a time of year when birds were nesting. As a consequence of this and in view of its obligations under the Conservation of Wildlife (Jersey) Law 2000 to ensure nesting birds are protected, the developer agreed to halt further tree felling. The agreed cessation was until:
· A survey had been carried out by an independent ornithologist to establish the situation regarding nesting birds (N.B. the subject of separate report to the Minister);
· the end of July, when the main nesting season is over (N.B. In any event, no felling of trees will be permitted which would destroy protected nests which are in use or being built).
2. On 17th May 2007, the Minister visited the site with the Principal Planner and the States Arboriculturalist to inspect and consider the potential for retaining / saving the three remaining roadside oaks along the boundary of Field 851. As a consequence, the Minister decided to provisionally include the two northernmost oak trees in the ‘List of Protected Trees’ to ensure their immediate protection from the threat of removal.
3. The Minister served notice of the provisional listing on the land owner that same day and two site notices were placed next to the trees in question.
Discussion
The two trees provisionally included on the ‘List of Protected Trees’ are shown on the attached plan (see Appendix 1).
There have been no written representations against the inclusion of these trees on the List from the land owner within the 28 day period provided (i.e. period from the date of the notice, which expired on 14th June 2007).
The only representations made have been by the Minister for Transport and Technical Services, which were received on 20th June 2007 (attached at Appendix 2).
The ‘test’ of whether a tree should be included on the List, is whether it is “in the interests of the amenity of the Island”. The case made by the Minister for Transport and Technical Services for removal of the trees, based on pedestrian safety and encouraging sustainable travel modes is not, therefore, material to the decision as to whether the trees should be included on the List.
Determining the amenity value of a tree to the Island is not straightforward. Clearly, trees are one of the most widely valued parts of our environment, with their importance for nature conservation and their contribution to the landscape. In such circumstances it is normal to defer to expert advice from a qualified arboriculturalist.
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 application by Michael Felton Ltd, in consultation with the States Arboriculturalist. The survey includes a plan showing the location of all the trees and gives details of species, age, girth, condition and retention value. The trees in question were recorded as follows:
Tree No. 58
Species: Quercus Robur (i.e. English Oak)
Age: Mature (i.e. over ⅔ life expectancy)
Girth: 286cm
Height: 20m
Observations: Good large corner feature tree. Bole is covered in ivy.
Retention Value: A
Tree No. 54
Species: Quercus Robur
Age: Mature (i.e. over ⅔ life expectancy)
Girth: 410cm
Height: 20m
Observations: Large tree with split in the bole. Tree is 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.
Tree no.58, therefore, is identified as having the highest retention value and this was reaffirmed by the States Arboriculturalist at the on-site meeting with the Minister on 17th May 2007. Given the status attached to it, there seems little point here in further discussing it obvious amenity value.
In contrast, tree no. 54 is identified as having a low retention value. In addition to the split in the bole referred to in the tree survey, the States Arboriculturalist drew attention on site to the tree’s declining health and pointed out some rot and caterpillar damage to the bole.
Despite its low rating in the tree survey, it could be argued that the tree does have some amenity value and contributes to the character of the area, given in particular that it is relatively old in Jersey terms, it is of considerable size, and it helps to screen and soften the hard lines of the development along the adjacent escarpment. It is also well known that mature oak trees provide a particularly valuable habitat for wildlife and this is expanded upon in a recent report by the States Ecologist on the value of the trees approved for removal at the Bel Royal site (see Appendix 3). As to the tree’s inherent botanical beauty or aesthetic qualities, this is best determined in the eyes of the beholder.
That said the tree is not considered to be part of a landscape of particular merit and the main value of this tree to the character of the landscape was as part of the former row of oak trees. It should also be borne in mind that trees do not live forever and there are current approved plans to replace the former line of oak trees on an approved new road alignment with semi-mature trees of the same species, which could in time recreate an important landscape feature in this location. In view of the above and given the low retention value (i.e. low importance) attributed to the tree in the tree survey, it is difficult to justify why this particular tree warrants permanent inclusion on the List of Protected Trees. To do so, might suggest that all trees in the Island under threat from development, which are not dead, dying or dangerous (i.e. grade C and above), should be included in the List.
Whilst preferable to neglecting tree protection, there are dangers in tree preservation being carried out too enthusiastically. Leaving aside the obvious resource implications associated with the increase in bureaucracy, it could devalue the more important trees included on the list (in a similar manner to what would happen if ordinary buildings were included on the List of Sites of Special Interest) and lead people to question the purpose of the List of Protected Trees. This, in turn, might eventually prompt demand for relaxation of the control.
N.B. The third of the remaining roadside oaks situated along the north-eastern boundary of Field 851 (tree no. 52) is identified in the tree survey as having a large cavity in the bole with fungus and decay present. As a consequence, it has been given a ‘D’ category.
Legal implications
The trees in question were provisionally included in the ‘List of Protected Trees’ under the auspices of Article 60 of the Planning and Building (Jersey) Law 2002. The Minister empowered to do this where he “considers it necessary or expedient to restrain an apprehended removal or damage to a tree which he believes should be on the List of Protected trees”.
Article 58 of the Law provides that the Minister shall include on the List trees which he is satisfied, “in the interests of the amenity of the Island, should not be cut down, lopped, or otherwise altered, harmed or interfered with without the Minister’s permission”.
Article 59 of the Law allows the Minister to consider retaining the trees in question on the List after 28 days has elapsed since the serving of the notice and, in doing so, he must take into account any representations made where they “relate specifically to the proposed inclusion of the tree on the List”. The Minister has until 17th August 2007 (i.e. 3 months after the service of the notice) to decide. If no such decision is made, details of the tree/s in question shall be removed from the List.
The effect of including a tree on the List is to protect it from felling etc without the Minister’s permission, by making this an offence; unless it can be proven that the tree is dead, dying or dangerous.
Clearly, if one or both of the trees are retained on the List, it will require either the submission of a revised application to show an amended road layout from that approved, or the submission of an application to fell the protected tree/s in order to implement the development scheme that has the benefit of planning permission. In the event that the latter course is pursued and the Minister denies permission to fell the protected tree/s and thus to implement the approved scheme, the matters may be referred to the court. The HM Solicitor General’s advice on this matter is set out in Appendix 4.
Consultation
There was consultation with the States Arboriculturalist on the day the trees were provisionally listed.
There is considered to be no requirement for this matter to be referred to the Council of Ministers, as the Minister is empowered to make this decision.
Recommendation
That the Minister for Planning and Environment decides to:
(i) retain tree no. 58 on the List of Protected Trees;
(ii) remove tree no. 54 from the List of Protected Trees.
Reason(s) for Decision
To protect healthy trees with a recognised high retention value, where they make a significant contribution to the character, ecology and amenity of the area.
Action Required
inform the land owner and local political representatives of the Ministers decision;
remove details of tree no. 54 from the List of Protected Trees.
Written by: | Roger Corfield, Principal Planner |
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Approved by: | Kevin Pilley, Assistant Director – Policy and Projects |
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Endorsed by: | |
Attachments:
Appendix 1: Plan showing location of trees provisionally included on the List of Protected Trees.
Appendix 2: Representations of the Minister for Transport and Technical Services.
Appendix 3: Additional comments of the States Ecologist.
Appendix 4: Advice of HM Solicitor General – exempt [3.2.1 (a)(v)]
File ref: P/2006/2489
gov.je